Today we have a special treat. William Leonard Pickard, the plaintiff in Pickard v. Department of Justice, the Ninth Circuit case allowing criminal defendants to sue the Department of Justice to get documentation about informants after the government admits in court that a certain person is an informant has written specially for takingthefifth-acriminallawblog.com his comments on the Ninth Circuit decision.

INFORMANT RECORDS NOW AVAILABLE THROUGH FOIA

In a significant published decision affecting thousands of cases, the 9th Circuit ruled on July 27, 2011 that defense attorneys and the public may now obtain federal informants’ agency records through FOIA, once the informant is officially confirmed by testimony at trial. In Pickard v. DOJ, 2011 U.S. App. LEXIS 15397, the 9th Circuit determined that “as a matter of first impression and great importance” (Judge Wallace, concurring), federal informant Gordon Todd Skinner’s DEA files must be provided to Plaintiff William Leonard Pickard.

The decision has broad implications for the defense bar, describing for the first time a FOIA method to obtain informant records after their testimony in any case. The decision in Pickard v. DOJ provides a check on prosecutors’ compliance with their obligations at trial to disclose impeachment evidence on government witnesses.

In interpreting FOIA Sec. 5 USC 552(c)(2) whereby informant records are subject to FOIA if the individual were “officially confirmed” as an informant by a federal agency, the 9th Circuit declined to adopt DOJ’s proposed standard that would require a “press release” by a “head of an agency,” instead concluding that Pickard’s explanation — that agents’ testimony should suffice — “makes more sense” in a FOIA context and in view of the legislative history of 5 USC 552(c)(2).

The 9th Circuit observed that since the 1976 enactment of FOIA, DOJ had never issued any regulation or advisory interpreting “official confirmation” under FOIA, nor had any court ruled on the issue. Observing “the cat is out of the bag” regarding informant Skinner’s records, the 9th Circuit determined that agency records of Skinner must be made public, thus opening the door for similar requests by defendants, attorneys and public interest groups for informant records. Although the 9th Circuit noted the decision “may cause trouble for prosecutors and confidential informants,” the availability of informant records through FOIA will assist prosecutors, defense attorneys and the courts in assessing what records are material to the defense, bypassing prosecutors’ prior unilateral determinations in selecting specific records for release (see http://caselaw.findlaw.com/us-9th-circuit/1575518.html).

William Leonard Pickard

http://www.freeleonardpickard.org

crucible27@gmail.com

Tucson, Arizona

Gordon Skinner testified for the government at Wiliam Pickard’s narcotics trial. He admitted being an informant for the DEA and to providing information about Pickard. DEA agents also testified that Skinner was an informant.

After Pickard was convicted he made a Freedom of Information (FOI) request to the DEA for information about Skinner and his relation to the agency. The request was rejected and he appealed, first administratively and then to the District Court. After the DEA’s first motion for summary judgement was denied it made a Glomar motion in which it neither denied or admitted that Skinner was an informant. After the motion was granted Pickard appealed to the Ninth Circuit.

The Ninth Circuit reversed the District Court’s ruling and ordered the DEA to provide an index of documents that would comply with Pickard’s request along with any objections it has to providing individual documents.

The release of FOI documents is governed by the Freedom of Information Act. 5 U.S.C. § 552(c)(2) forbids the release of information about an informant unless the agency has officially confirmed the person as a confidential informant. The DEA argued that since there was no official confirmation it did not have to release the documents. However the Court ruled that since Skinner had admitted his status on the witness stand and since the U. S. attorney had called Skinner as a witness and asked him about his activities as an informant, it was not necessary for there to be an official statement on behalf of the agency affirming his status.

The First Circuit Court of Appeals reversed two District Court decisions excluding cooperating witnesses from testifying based on the alleged failure of the government to provide Brady discovery. The Supreme Court held in Brady v. Maryland that the government had a duty to provide the defense with all exonerating evidence. By exonerating evidence the Supreme Court meant evidence that is “favorable to the accused and material to guilt or punishment.” Specifically it requires the provision of evidence that is either exculpatory or impeaching in nature.

Joseph Prochilo is charged with possession of a firearm by a convicted felon and Elvis Guerrero is charged with attempting to buy cocaine for purpose of sale in separate cases. The cases against both men rely primarily upon cooperating witnesses. In each case the government provided initial Brady discovery relating to the cooperating witnesses. Defense counsel in both cases moved for further discovery.

Prochilo requested:

(1) details regarding the witness’s work with the United States Secret Service, the Essex County Sheriff’s Department, the DEA, and the FBI; (2) information regarding the other ATF cases on which the cooperator worked; (3) the witness’s cooperation agreements with government agencies other than the ATF; (4) a description of other firearms seized by the government as a result of the witness’s cooperation; (5) information about the cooperator’s contacts with other government agencies as they related to other matters or other investigations; and (6) a list of all benefits the witness received as a result of these contacts.

Guerrero requested:

to produce all information in its possession, custody, or control, regarding the witness, and identifying several categories of information.

Prochilo said that the requested information might reveal that the cooperating witness is “flawed”, that the discovery could help substantiate an entrapment defense, that many of the cases that the cooperating witness handled were thrown out requiring an explanation, and because only his counsel, not the government or the district court, will be able to judge what evidence is both favorable to him and material.

Guerrero claims that the discovery is needed for impeachment purposes.

The First Circuit reversed the District Court decisions in both cases. It held that for the defendants to obtain a court order for Brady material beyond what the government provides the defense must make specific requests for specific items and give specific reasons why the discovery is necessary. “[T]he defendant should be able to articulate with some specificity what evidence he hopes to find in the requested materials, why he thinks the materials contain this evidence, and finally, why this evidence would be both favorable to him and material.”

The problem with this is that you are asking defense counsel to request specific items from the prosecution’s file. If the defense knew what was in the file the defense would not need to ask for discovery. It is the basic requirement of due process and fairness that originally led the Supreme Court to require discovery of exculpatory evidence that is violated when you require the defendant to list specific items out of the government’s file so that he/she can use the items to impeach the cooperating witness.

Damion Townsend was charged with conspiracy to distribute at least 50 grams of cocaine base and an unspecified amount of cocaine, possession with intent to distribute cocaine base, and possession of a firearm during and in furtherance of a drug transaction. He was convicted on the conspiracy charge only.

Townsend drove his close friend, Jones, who unbeknownst to him was a government informant, and Winfree around New York City to complete some errands and to purchase some cocaine from Scrap in a deal arranged by Jones. Then at Jones urging they went to Townsend’s house where Jones converted the cocaine into cocaine base.

He raised two issues on appeal: insufficiency of he evidence, and the admission of prior bad act testimony.

But winning a case on appeal is no easy task. For many issues the appellate court gives great deference to the trial court and the jury verdict. When it comes to sufficiency of the evidence the

Court ‘must review the evidence in the light most favorable
to the government, drawing all reasonable inferences in its favor.Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt. In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager.”

(citations omitted)

Since the test is if there is any evidence that Townsend conspired to sell base cocaine, the appellate court won’t overrule the trial court. Here Townsend claimed that the informant who he had known since childhood was not credible. Thus it is a question whether or not the jury believed the informant. Since the jury could have believed the informant the appellate court did not reverse the conviction. This is probably a good rule. Our country’s criminal laws are bases on the common law’s faith in the jury system. The jury composed of peers of the defendant is the trier of the facts. The members of the jury, not the appellate judges saw the witnesses and determined which witnesses to believe and which witnesses not to believe. And I for one prefer to put my faith in a jury than in a jaded judge.

The second issue is that the prosecutor introduced two prior incidents in which Townsend sold guns to Jones. This is called prior bad acts evidence (21 USC 402(b). Theoretically it cannot be used to show Townsend’s bad character. It can only be used to prove an issue that is in contention. But as the majority points out The Second Circuit has an “inclusionary approach.” The standard of review is an abuse of discretion. In other words before the appellate court will consider reversing a conviction for an error in admitting the evidence it must find that the trial court’s decision was arbitrary and irrational. Once it finds that the decision is arbitrary and irrational it applies the harmless error test.

“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.”

In other words it is nearly impossible.

But in this case it is a close call. It is arbitrary and irrational if the alleged prior incident is not relevant to some issue that is before the court.

“To determine whether a district court properly admitted
other act evidence, we consider whether “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.”

The majority opinion found it relevant on the issues of knowledge and intent both of which it found to be disputed. It also went to show the relationship between Townsend and the informant. But the minority opinion pointed out that the intent and the knowledge necessary for sell firearms is different from what is needed in a drug transaction. Furthermore, the relationship between Townsend and Jones was not in question. All agreed it was close. Therefore it could only be used as illegal character evidence and should have been excluded.

The dissent also claimed that the trial court should have excluded the evidence under the Federal Rules of Evidence section 403 which excludes evidence whose probative value is highly outweighed by the prejudicial value to the defendant. The trial court failed to take into consideration the fact that even if the evidence is relevant it can be excluded if it shows the propensity of the defendant to commit crimes. While neither opinion raises the issued under Section 403 the evidence can be excluded, where although the evidence is relevant it waste too much time to put it in. Here they had a least one witness testify about the guns and put both guns into evidence. For the minimal value if any of using the guns it took up a significant amount of time and should have been excluded on the section 402(b) and 403 issues.

Several days ago we discussed Unus v. Kane a case in which a Muslim family sued for an alleged violation of its Fourth Amendment rights to be free of unreasonable searches and seizures. Today we take a look at another case in which the plaintiff claimed an illegal search of her residence. Luckily for the plaintiff in this case, Maira Guzman the Seventh Circuit Court of Appeals reversed the trial court grant of summary judgment to the defendant, the City of Chicago. Guzman sued the City of Chicago pursuant to 42 USC Section 1983 for a violation of her civil rights.

Sergeant Marvin Bonnstetter of the Chicago Police Department was investigating gangs in Chicago. While he was at the jail he was approached by a man who claimed to have information. Together with an FBI officer he met with this man (known as John Doe). The officers asked the man a number of questions. He seemed knowledgeable about Chicago gangs and he was able to identify pictures of gang members.

John Doe told the officers that he had seen a convicted felon, Ruben Estrada coming out of his residence, located at 1536 West Walton in Chicago, with a gun. Doe told the officers that the West Walton address was a single family residence. The officers and Doe drove by the building and it appeared to be a single family residence. There was a real estate sign in the window and the officers thought it was a home run business.

Bonnstetter used the information to write an affidavit and submit it to the court to get a search warrant for the residence. A magistrate signed the search warrant.

Fourteen police officers and FBI agents, including Bonnstetter went to the residence to serve the search warrant. Shortly after arriving they discovered that it was not a single family residence. The real estate office was separate from the rest of the building and their were two residential apartments in the building. Furthermore no one by the name of Ruben Estrada lived in the building. They searched the upstairs apartment where Maira Guzmen, a pregnant woman, her husband, and their nine year old son lived.

The Seventh Circuit found that while Bonnstetter acted appropriately in obtaining the search warrant the police did not properly execute the warrant. The court citing Maryland v. Garrison stated that since the officers realized that it was not a single family residence prior to the search, they were required to withdraw.

The police department of Buena Park, California obtained a search warrant for the residence, automobile and person of Anthony Andrew Galland based upon information from a confidential informant. In order to protect the identity of the informant, the police department requested that part of the affidavit supporting the warrant be sealed (See People v. Hobbs (1994) 7 Cal.4th 948,30 Cal’rptr.2nd 651; 873 P.2nd 1246) and that the sealed portion of the affidavit be released to the custody of the police department. The magistrate agreed. The defendant made a motion to suppress the seized evidence alleging that the affidavit did not comply with the Fourth Amendment. The sealed portion of the affidavit was brought to the courtroom. The judge reviewed the entire affidavit and denied the motion and the sealed portion of the affidavit was returned to the police department.

The defendant appealed the denial of the motion and the fun began. Prior to the appeal, the police department purged its files and the sealed portion of the affidavit was lost. The Court of Appeal held that there was no authority to give the sealed portion of the affidavit to the police department in the first place. Further it ruled that without the entire affidavit it was unable to rule on the appeal and it reversed the lower court denial of the defendant’s motion to suppress evidence, even thought the district Attorney found a five page unsigned version of the affidavit.

The California Supreme Court in People v. Galland, agreed with the Court of Appeal that there was no law authorizing the trial court to place the sealed portion of the affidavit in the custody of the police department. But it invented a law authorizing the placement of the sealed portion in the custody of the police when five conditions occur. First, the disclosure of the sealed portion would hinder law enforcement investigations or the safety of the informant. Second,That the clerk’s office had insufficient security procedure to maintain the sealed portion of the affidavit. Third, that the law enforcement agency had sufficient safety procedures to protect the document. Fourth, the law enforcement agency can save the document securely for ten years in a noncapital case and permanently in capital case. The fifth and last requirement is that the magistrate must have made a sufficient record of the incident to provide information in case the affidavit is lost or destroyed.

Using these newly invented criteria the Supreme Court found that the magistrate had not complied with them prior to placing the sealed portion of the affidavit in the custody of the Buena Park Police Department. However, since there existed the District Attorney’s unsigned version of the affidavit and since the Orange County Superior Court, after the negative ruling of the Court of Appeal, conveniently, found a signed copy of the affidavit all is well and the Supreme Court reinstated the denial of the Galland’s suppression motion.