(310) 399-3259

Attorney for Defendant
RAMON PEREZ ANGULO

RICHARD CHIER
Attorney at Law
1901 Avenue of the Stars, 20^th Floor
Los Angeles, California 90067

(310) 201-4949

Attorney for Defendant
FRANCISCO RAMIREZ

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

TO THE CLERK OF THE ABOVE-ENTITLED COURT AND TO PLAINTIFF AND PLAINTIFF'S ATTORNEY OF RECORD:

Defendants and each of them respectfully submit the attached points and authorities in reply to the people's opposition to the Section 995 Penal Code motion submitted by the defendants.

_________________________________

RICHARD C. CHIER

Attorney for Defendant,

FRANCISCO RAMIREZ

____________________________________

VICTOR SHERMAN,

Attorney for Defendant

RAMON ANGULO

MEMORANDUM OF POINTS & AUTHORITIES

INTRODUCTION

The defendants have moved for dismissal of the information pursuant to Penal Code Section 995. The gravamen of their claims is that the prosecution unlawfully withheld wiretap information from the defendants and forced them to preliminary hearing devoid of the information required to be provided by state and federal statutes.

This illegal withholding was aided by the magistrate who simply bolstered the prosecutor's intentional refusal to disclose the existence of the wiretap prior to the introduction of evidence derived from that wiretap at the preliminary hearing. Only after the preliminary hearing and the filing of a Penal Code section 995 motion did the People finally admit, on July 2, 1998, that the evidence was derived from a wiretap.

The defendants contend that this concealment resulted in their being held to answer illegally and without sufficient legally admissible evidence to support the information.

The opposition to defendant's motion to dismiss is particularly disingenuous because it cobbled together arguments from other pleadings which are totally irrelevant to the issues raised by the defense.

Most galling is the citation of case after case for the proposition that the burden of persuasion is so low that virtually any evidence suffices to hold a defendant to answer when, in fact, the evidence adduced at the hearing was entirely inadmissible due to the People's concealment of the wiretap and their failure to provide notice and disclosure of the wiretap's existence which conditions precedent to the introduction of such evidence. Thus, since the evidence was clearly derived from the wiretap, the People's failure to disclose requires dismissal of the information pursuant to Penal Code section 995. Moreover, the People's practice and procedure of intentionally "handing-off" information, sealing records, and using in-camera proceedings for the purpose of concealing the existence of a wiretap from defendants who are statutorily and constitutionally entitled to such information, requires this court to dismiss such information with prejudice. ARGUMENT AND POINTS AND AUTHORITIES

I

The People's Briefing Regarding Sixth Amendment Claims

Is Irrelevant and Should Be Stricken

Based on briefing relating to Proposition 115, the People allege that the confrontation clause of the Sixth Amendment is a trial right and since the defendant have the right to cross examine the officer at trial, there was no denial of that right.

Although the movants complain of Jennings error consisting of overly restricted cross examination, the opposition has stitched together an argument which speaks to denial of confrontation and cite a string of cases vouching for the rectitude of hearsay prelims when that indue was never broached. Accordingly, the court is asked simply to disregard and to strike the text commencing at page four line 19 through and including age six, line 19. Defense counsel's cross examination claims are subsumed by the lapse in notification of the existence of a wiretap.II

THE ISSUE BFORE THIS COURT IS WHETHER THE

COURT ADMITTED EVIDENCE DERIVED FROM A WIRETAP

WITHOUT COMPLIANCE BY THE PROSECUTION

WITH APPLICABLE LAW

The People argue, without further explanation, that if there was sufficient evidence introduced at the preliminary hearing to support the existence of each element of the charge the information should not be set aside. The People assert that "[t]he information will be set aside only where there is no evidence that a crime has been committed or there is no evidence to connect the defendant with a crime shown to have been committed." (Opposition p. 9, 10, emphasis in original.) However, the People bypass entirely how the evidence could have been introduced at the preliminary without compliance with Penal Code section 629.70 which requires:

The contents of any intercepted wire, electronic digital pager, or electronic cellular telephone communication or evidence derived from it shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding, except a grand jury proceeding, unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a transcript of the contents of the interception and with a copy of the court order and accompanying application under which the interception was authorized. (Emphasis added, the People are similarly required to provide notice and disclosure pursuant to 18 USC 2518(9).)

The officer's prior knowledge of the contents of the plastic bag, information acquired from the federal wiretap, made the subsequent surveillance, arrest and seizure of contraband evidence "derived" from that wiretap and inadmissible absent compliance Penal Code sections 629.70 and 18 USC 2518(9). Therefore, the People's own failure to follow the law made all evidence introduced at the preliminary hearing legally inadmissible.

Therefore, as explained by the People themselves, the information must be set aside because there was "no evidence that a crime has been committed or there is no evidence to connect the defendant with a crime shown to have been committed." (People v. Superior Court (Smart) (1986) 179 Cal.App.3d 860, 864, Opposition p. 9, 10.)

III

THERE IS NO AUTHORITY FOR THE PROPOSITION THAT EVIDENCE CODE SECTION 1040 CAN SHIELD A WIRETAP FROM THOSE PERSONS AGAINST WHOM DERIVITIVE EVIDENCE IS BEING INTRODUCED

The prosecution argues that the existence of a wiretap is susceptible of being shielded by the official privilege found in Evidence Code section 1040. This claim is wrong. First, since the notice provisions of the wiretap law are constitutionally founded, any claim of privilege would always result in disclosure, since no claim of confidentiality could outweigh the need to comply with the constitutional duty to disclose. Secondly, the complete statutory scheme governing disclosure of wiretap information is inconsistent with, and precludes application of, the official governmental privilege. Thirdly, the fact of the existence of the wiretap is not ``information acquired in confidence,'' and thus cannot be shielded by the official privilege. Finally, since the federal wiretap statutes mandate state statutes at least as protective as the federal laws, any attempt to use the official information privilege to shield notice or disclosure is barred by the supremacy clause.

A. NOTICE AND DISCLSOURE ARE CONSITUTIONALLY REQUIRED

AND CANNOT BE AVOIDED

The People assert that the information regarding the federal wiretap was sealed and disclosure would have compromised that ongoing investigation. (Opposition p. 11.) They further allege that the use of in-camera proceedings to assert the governmental priviledge in Penal Code section 1040 and deny discovery pursuant to 1054.7 are appropriate to protect the secrecy of that wiretap. The People are wrong.

First, Evidence Code section 1040, subdivision (b), creates a "privilege to refuse to disclose official information, and to prevent another from disclosing official information" which may be claimed by a person "authorized" by that entity. It is doubtful that the federal authorities have authorized the Los Angeles District Attorney's Office to assert that the wiretap should not be disclosed to a criminal defendant against whom evidence derived from that wiretap is being introduced at a preliminary hearing. ⁽¹⁾

Secondly, the privilege is available only under two circumstances, when disclosure is "forbidden by an act of the Congress of the United States or a statute of this state" or disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice. (Pen.Code §1040(b)(1)&(2).) The former is an absolute privilege and the later a conditional privilege if the court determines, in accordance with precise statutory standards, that disclosure is against the public interest. (Rubin v. City of Los Angeles (1987) 190 Cal.App.3d 560, 583; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540; Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123.) In making the determination of whether disclosure is against public interest, the interest of the public entity as a party in the outcome may not be considered. (Evid. Code, § 1040, subd. (b)(2).)

Here, both state and federal law require disclosure of this information making the absolute privilege in subsection (b)(1) unavailable to the District Attorney. The only possible basis for the assertion of the privilege is that disclosure is "against the public interest." However, the right to notice, inventory, and disclosure is not only a statutory right, but a constitutional right.

"In United States v. Donovan, 429 U.S. 413, 429 n. 19, 97 S.Ct. 658, 669 n. 19, 50 L.Ed.2d 652 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. § 2518 (8)(d)." (Dalia v. United States (1979) 441 U.S. 238, 243; 99 S.Ct. 1682, 1688.)

Clearly infringement of that constitutional right be against the interest of the public, such a construction of the governmental privilege would make Penal Code section 1040 unconstitutional.

B. THE COMPLETE SCHEME OF DISCLOSURE IN THE WIRETAP LAW PRECLUDES USE OF THE OFFICIAL INFORMATION PRIVILEGE TO SHIELD WIRETAP DISCLOSURES

The Legislature of California has enacted a comprehensive scheme governing the use of wiretaps. That scheme includes specific provisions governing notice and disclosure of wiretapping. General reporting provisions of the number of wiretaps and their nature and frequency is required by 18 USC § 2519 and Penal Code section 629.62. The specific disclosure requirements for notice of wiretaps is found in 18 USC § 2517 (8) and Penal Code section 629.68:

``Within a reasonable time, but no later than 90 days, after the termination of the period of an order or extensions thereof, or after the filing of an application for an order of approval under Section 629.56 which has been denied, the issuing judge shall cause to be served upon persons named in the order or the application, and other known parties to intercepted communications, an inventory which shall include notice of all of the following:

...

``(c) The fact that during the period wire, electronic digital pager, or electronic cellular telephone communications were or were not intercepted.''

``The judge, upon filing of a motion, may, in his or her discretion, make available to the person or his or her counsel for inspection the portions of the intercepted communications, applications, and orders that the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge, the serving of the inventory required by this section may be postponed. The period of postponement shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted.'' (Pen. Code § 629.68.)

The Legislature also mandated disclosure of any wiretapping where evidence ``derived'' from the wiretap is used in evidence at trial:

``The contents of any intercepted wire, electronic digital pager, or electronic cellular telephone communication or evidence derived from it shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding, except a grand jury proceeding, unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a transcript of the contents of the interception and with a copy of the court order and accompanying application under which the interception was authorized. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding, and that the party will not be prejudiced by the delay in receiving that information.'' (Pen. Code § 629.70; see also 18 USC § 2517.)

These provisions evince a legislative intent to enact a comprehensive scheme governing notice and disclosure of interceptions done during wiretapping. It is the position of People that all these provisions may be trumped by use of the official governmental privilege, Evidence Code section 1040. (Ret., pp. 32-37.) People treats Evidence Code section 1040 as an ultimate trump card, playable at the government's whim, to block disclosure otherwise expressly mandated by several quite clear statutes.

Not surprisingly, People cites no authority in support of this astonishing claim. They are, in fact, compelled to admit that no California case has upheld assertion of the official information privilege to wiretapping.

It would be very odd indeed if the Legislature's careful delineation of notice and disclosure in the wiretapping statutes could be simply obliterated by a general privilege provision. It is evident that the Legislature's intent in enacting the wiretap statutes was to compel notice and disclosure, not the contrary.

The wiretap statutes enact a quite specific scheme governing notice. The fact that there is a general official information privilege cannot mean that the carefully drafted, narrow wiretap statutes requiring notice can be nullified by the general information privilege. Such a construction would render the notice provisions of the wiretap statutes nugatory; this should be avoided:

``We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous. (People v. Craft (1986) 41 Cal.3d 554, 560 [224 Cal.Rptr. 626, 715 P.2d 585]; Gates v. Salmon (1868) 35 Cal. 576, 587.) The whistleblower statute was a legislative expression intended to encourage and protect the reporting of unlawful governmental activities, and to effectively deter retaliation for such reporting. The Legislature clearly intended to afford an additional remedy to those already granted under other provisions of the law; otherwise section 19683 would be rendered meaningless. (Cf. Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408 [261 Cal.Rptr. 384, 777 P.2d 157].)'' (People v. Tanner (1979) 24 Cal.3d 514, 522.)

Moreover, the specific statutes control over the general, even where the two might otherwise overlap. ``A specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates. (Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123 P.2d 505].)'' (People v. Tanner, supra, 24 Cal.3d 514, 521.)

As the Court of Appeal explained:

``A special statute dealing expressly with a particular subject constitutes an exclusion, so as to take precedence over a conflicting general statute on the same subject. (Kennedy v. City of Ukiah (1977) 69 Cal.App.3d 545, 552 [138 Cal.Rptr. 207]; Busic v. United States (1980) 446 U.S. 398 [64 L.Ed.2d 381, 100 S.Ct. 1747].) This rule applies regardless of whether the special statute was enacted before or after the general one. (People v. Randano (1973) 32 Cal.App.3d 164 [108 Cal.Rptr. 326]; Warne v. Harkness (1963) 60 Cal.2d 579, 588 [387 P.2d 377].)'' (State Farm Mut. Auto. Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 238.)

``As a broad proposition, it is said that a specific statutory provision on a particular subject controls over general statutory provisions on the same subject, and a statute of general application will not ordinarily be held to repeal by implication a former statute of special or limited application. A repeal of the special statute will be found, of course, where there is something in a later general statute that discloses the legislative intent to repeal, but laws of special and local application are never deemed repealed by general legislation except upon the most unequivocal manifestation of intent to that effect, or where there is such a manifest repugnancy as to make plain a legislative intent to repeal an earlier special statute. Conversely, when a subsequently enacted specific statute directly conflicts with an earlier, more general provision, it is settled that the subsequent legislation effects a limited repeal of the former statute to the extent that the two are irreconcilable.''

The Supreme Court has explained:

``Where the terms of a later specific statute apply to a situation covered by an earlier general one, the later specific statute controls (People v. Haydon, 106 Cal.App.2d 105, 111 [234 P.2d 720]). As we held in Rose v. State, 19 Cal.2d 713, 723, 724 [123 P.2d 505]: ''It is well settled, also, that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.'' (See also People v. Moroney, 24 Cal.2d 638, 644 [150 P.2d 888]; Coker v. Superior Court, 70 Cal.App.2d 199, 201 [160 P.2d 885]; Whittemore v. Seydel, 74 Cal.App.2d 109, 120 [168 P.2d 212].)'' (County of Placer v. Aetna Cas. etc. Co. (1958) 50 Cal.2d 182, 189.)

This is a very well-settled proposition. (See, e.g., 58 Cal Jur 3d, Statutes, § 69; Code of Civil Procedure section 1859; Governing Board v. Mann (1977) 18 Cal.3d 819, 828.) Evidence Code section 1040, the general official information privilege section, was enacted effective 1967. The quite specific wiretap notice and disclosure statutes were enacted in 1995. The specific and later-enacted wiretap notice and disclosure statutes cannot be trumped by the older and general official information privilege. Thus, the latter privilege may not be asserted to avoid the mandatory notice and disclosure provisions of the wiretap law.

C. THE EXISTENCE OF A WIRETAP IS NOT ``INFORMATION ACQUIRED IN CONFIDENCE,'' AND THUS CANNOT BE SHIELDED BY THE OFFICIAL PRIVILEGE

The second flaw in the People's argument is that the fact of the existence of a wiretap cannot qualify as ``information acquired in confidence,'' a necessary foundational element of the official privilege. Thus, no privilege may be asserted with respect to the existence of a wiretap.

Evidence Code section 1040, subdivision (a), codifies the official governmental privilege, but a prerequisite for any claim of that privilege is that there must be ``information acquired in confidence.'' Evidence Code section 1040 provides that ``a public entity has a privilege to disclose official information.'' (Evid. Code § 1040, subd. (b).) But the section has a quite specific definition of ``official information'': ``As used in this section, `official information' means information acquired in confidence . . . . '' (Evid. Code § 1040, subd. (a).)

Case law has made it clear that the foundation for any claim of privilege depends on a showing that there was ``information acquired in confidence.'' The Supreme Court has stated, ``We note at the outset that the conditional privilege, like the absolute privilege, is applicable only to `information acquired in confidence ....' (§ 1040, subd. (a).)'' (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 124.)

The Court of Appeal has restated this point:

``Preliminarily, we note section 1040 of the Evidence Code `represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.' (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540 [113 Cal.Rptr. 897, 522 P.2d 305], italics added.) `It essentially establishes two different privilegesan absolute privilege if disclosure is forbidden by a federal or state statute (subd. (b)(1)), and a conditional privilege in all other cases pursuant to which privilege attaches when the court determines, in accordance with precise statutory standards, that disclosure is against the public interest (subd. (b)(2).)' (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123 [130 Cal.Rptr. 257, 550 P.2d 161].) Moreover, either privilege is applicable only to `information acquired in confidence.' (Evid. Code, § 1040, subd. (a).)'' (Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 905.)

Thus, not everything the government wishes to keep secret can be shielded by the official privilege; only information ``information acquired in confidence'' can form the basis of a claim of privilege. It should be noted that petitioners are unaware of case applying the official privilege to wiretaps. Even the prosecution is forced to admit that no California case has found the privilege applicable to wiretaps. However, People argues that analogous case law supports application of the privilege to wiretaps.

The People cite two cases involving the location or substance of vehicle identification numbers (VIN), People v. Marghzar (1987) 192 Cal.App.3d 1129, 1134-1136, and In re David W. (1976) 62 Cal.App.3d 840, 846-848. (Ret., pp. 33-34.) These cases say that the formula used for a secret VIN number, and the location of that number, are properly shielded by the official governmental privilege. However, neither supports a claim that the very existence of the VIN number may be shielded. People is not merely claiming that the contents of the conversations overhead during the wiretap are shielded, but the very fact of the wiretap itself.

Apart from the VIN cases, the prosecution relies on the observation post cases in support of their claim that the official information privilege should apply to wiretaps. (Ret., pp. 34-36.) Although People cites all the observation post cases, only two of those cases actually address the issue at stake here: whether this is ``information acquired in confidence'' capable of being shielded by the official governmental privilege.

First, the People rely on Hines v. Superior Court:

``Petitioner contends that Weir's surveillance location does not come within the privilege because the record does not show that the location was `acquired in confidence ... during the course of his ... duty.'

``Petitioner takes too restrictive a view of the statutory word `acquire' The term does not exclude information that is generated by the person claiming the privilege. To acquire means `to come into possession ... of often by some uncertain or unspecified means.' (Webster's Third New Internat. Dict. (1981) p. 18.) To hold, as petitioner seems to suggest, that the location could be official information if petitioner was told of it by Officer Wells rather than discovering it himself creates a distinction which is neither required by the statute nor consistent with the purpose of the privilege. We hold the surveillance location was information to which the privilege could apply.'' (Hines v. Superior Court (1988) 203 Cal.App.3d 1231, 1234; internal quotation marks omitted.)

Next, the People relies on People v. Montgomery:

``Appellant claims that Officer Weir's testimony did not provide a basis for the People's claim of the privilege. We do not agree. In Hines v. Superior Court (1988) 203 Cal.App.3d 1231[251 Cal.Rptr. 28], Division Four of this district held on facts practically identical to those before us that the surveillance location used by Officer Weir to observe the corner of Fifth and Grove Streets (one block from the corner in question here) was information to which the privilege could apply, even though the officer may have `acquired' the information from himself. (Id., at p. 1234.) We agree that one effect of section 1040 is to establish, under appropriate circumstances, a `surveillance location privilege' in California. (See Com. v. Lugo (1987) 23 Mass.App. 494, 497 [503 N.E.2d 974, 976], and cases collected therein.)

``This legislative policy of protecting surveillance locations finds strong support in an analogy to the confidential informer privilege. `Like confidential informants, hidden observation posts may often prove to be useful law enforcement tools, so long as they remain secret. Just as the disclosure of an informer's identity may destroy his [or her] future usefulness in criminal investigations, the identification of a hidden observation post will likely destroy the future value of that location for police surveillance. The revelation of a surveillance location might also threaten the safety of police officers using the observation post, or lead to adversity for cooperative owners or occupants of the building. Finally, the assurance of nondisclosure of a surveillance location may be necessary to encourage property owners or occupants to allow the police to make such use of their property.' (Com. v. Lugo, supra, 23 Mass.App. at p. 498 [503 N.E.2d at p. 976], quoting United States v. Green (D.C. Cir. 1981) 670 F.2d 1148, 1155; see also McCray v. Illinois, supra, 386 U.S. at p. 308 [18 L.Ed.2d at p. 69].)

``While we find the analogy to the informer privilege apt, we think it reasonable to afford even more protection to information of a surveillance location and thereby to people who permit their homes to be used as surveillance locations. An informer whose identity is revealed, rightly or wrongly, probably has a fairly good chance of hiding because of the anonymity of our predominantly urban environment. But a person whose address is revealed has no place to hide.'' (People v. Montgomery (1988) 205 Cal.App.3d 1011, 1018-1019; internal quotation marks omitted.)

These cases in fact support petitioners' contention that the very existence of a wiretap cannot be ``information acquired in confidence'' to permit application of the privilege. The issue in the observation post cases is not the very existence of the observation posts, but the location of those posts. These cases support the claim that the location of the posts can qualify as ``information acquired in confidence.''

If the People's analogy applied, these cases would support application of the official government privilege to the very existence of the observation posts. But nothing in the above-quoted language supports such an approach. The above cases address only the issue of shielded the location of observation posts, not their existence.

In fact, the existence of a wiretap, an observation post, or a VIN is not, and cannot, qualify as ``information acquired in confidence.'' The location of an observation post or a VIN number, or the contents of communications overheard during a wiretap, can qualify as ``information acquired in confidence.'' But the mere existence of each of these items is not ``information,'' nor can they be said to have been ``acquired in confidence.''

Moreover, as shown above, the federal wiretap statutes require notice and disclosure. (18 USC § 2519; 18 USC § 2517 (8).) Even assuming Penal Code section 1040 allowed concealment of the existence of a wiretap, it would be preempted by federal wiretap statute's mandates.

"Although defendants relied exclusively on federal law at trial, the Court of Appeal also considered defendants' state law claims based on the California Privacy Act (Pen. Code, §§ 631, 632). State law, however, cannot be less protective than the federal Act. (United States v. McKinnon (1st Cir. 1983) 721 F.2d 19, 21, fn. 1.)'' (People v. Otto (1992) 2 Cal.4th 1088, 1092.)

The underlying rationale of the preemption doctrine is that the supremacy clause invalidates state laws that interfere with or are contrary to federal laws. (Chicago & N. W. Tr. Co. v. Kalo Brick & Tile Co. (1981) 450 U.S. 311, 317 [67 L.Ed.2d 258, 265, 101 S.Ct. 1124].)'' (Smith v. County of Santa Barbara (1988) 203 Cal.App.3d 1415, 1422.)

"State law which conflicts with a federal statute is invalid under the supremacy clause of the United States Constitution.'' (In re Marriage of Hillerman (1980) 109 Cal.App.3d 334, 341, Article VI, clause 2, of the United States Constitution.)

IV

THE PEOPLE CITE NO AUTHORITY FOR THE PROPOSITION THAT, DESPITE THE CLEAR LANGUAGE OF THE STATE AND FEDERAL WIRETAP STATUTES WHICH BAR THE USE OF WIRETAP DERIVATIVE EVIDENCE PRIOR TO THE PROSECUTOR PROVIDING NOTICE AND DISCLOSURE, THEY MAY STILL WITHHOLD SUCH INFORMATION FROM THE DEFENSE

The People assert that the sealing requirements contained in the state and federal wiretap laws and United States v. Florea (6^th Cir. 1976) 541 F.2d 568, barred disclosure of the existence of a wiretap to defendants because of the existence of an ongoing wiretap investigation. (Opposition p. 10.)

The people's reliance on both are misplaced. First, while the wiretaps statutes require orders and investigations to be sealed, they also provide that the "presence of the seal, . . . or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517." The existence of the seal is, therefore, not bar to the introduction of the existence of a wiretap. Akin to the requirement that notice and disclosure be made prior to the introduction of evidence, the sealing requirement is a prerequisite to the introduction of wiretap derivative evidence. (United States v. Ojeda Rios (1990) 495 U.S. 257, 110 S.Ct. 1845, 109 L.Ed.2d 224.) In other words, the fact that the original application and order were still sealed at the time of the preliminary hearing is irrelevant. Those documents will remain sealed until a motion to suppress is run to determine the legality of the wiretap at which point they will be retrieved to determine if the seal is still appropriately in place to allow admission of all such wiretap derivative evidence.

Secondly, Florea did not stand for the proposition that the sealing requirement could be used to conceal the existence of the wiretap to those against whom derivative evidence was being introduced was permitted. To the contrary, the defendant in Florea were given notice and had the opportunity to litigate a motion to suppress to determine if the wiretap derivative evidence could properly be introduced at trial. (Id. At p. 575.)

The People seem to take issue with the United State Supreme Court ruled that disclosure of wiretap evidence ". . . must be made even though attended by potential danger to the reputation or safety of third parties or to the national security--unless the United States would prefer dismissal of the case to disclosure of the information." (Alderman v. United States (1969) 89 S.Ct. 961, 970-971.)

However, rather than cite any case that supports their position that, despite the clear language in the state and federal wiretap statutes requiring disclosure and the express ruling of the United States Supreme Court requiring disclosure even at the risk of potential danger to third parties or national security, the People simply make a negative assertion that Alderman does not stand for the proposition that a court has a right to deny wiretap discovery in-camera. Without explaining why Alderman and Russo are not binding on them, the People simply state that the quotations are "out of context." (Opposition p. 12.)

The People cite Taglianetti v. United States (1969) 394 U.S. 316, and Stoddard v. United States (2^nd Cir. 1983) 710 F.2d 21, for the proposition that in-camera proceedings are appropriate "to address various wiretap issues." (Opposition p. 14.) While there may well be some situations where in-camera hearings are appropriate with regards to issues regarding a wiretap operations, neither cases stands for the proposition that a prosecutor may deny disclosure to a defendant whose conversations have been intercepted. That right is absolute.

In fact, the appellants involved in both Stoddard and Taglianetti were actually given notice of the existence of a wiretap. In Stoddard the appellant was given notice despite the fact that there were no pending charges. Under Federal law, it is left to the discretion of the court whether persons who were intercepted but not named in warrant should be provided notice. The People are required to provide the court with all the information regarding those persons so the court may make an intelligent decision on whether the interests of justice would require the People to notice, one of is the prosecution of criminal charges as a result of the interception. (United States v. Donovan, supra, 429 U.S. 413, 439, fn. 26, 97 S.Ct. 658, 50 L.Ed.2d 652.) Apparently the court in Stoddard determined that notice should be provided despite the fact that investigations were still ongoing but simply denied disclosure of materials which are not otherwise required to be disclosed.

Taglianetti explains why Alderman and like cases require disclosure:

"[A]n adversary proceeding and disclosure were required in those cases, not for lack of confidence in the integrity of government counsel or the trial judge, but only because the in camera procedures at issue there would have been an inadequate means to safeguard a defendant's Fourth Amendment rights." (Id. At p. 1100-1101, emphasis added.)

For that express reason the court in Taglianetti held that the defendant in that case was "entitled to see a transcript of his own conversations" but the in-camera proceeding could be used with regards to other records requested by the defendant and to ensure the accuracy of the prosecutor's claims. (Id. At p. 1100-1101, emphasis added.)

C. ADMISSION OF THE USE AND EXISTENCE OF WIRETAP

DERIVATIVE EVIDENCE RENDERS MOOT ARGUMENTS ADVANCED BY THE PEOPLE IN THEIR OPPOSITION

The People's reliance on United States v. D'Andrea (3^rd Cir. 1974) 495 F.2d 1170, 1174, is similarly misplaced since D'Andrea did not involve the use of evidence derived from a wiretap. The defendant in D'Andrea asserted there was a wiretap involved in his case. The prosecutor made a diligent search of all agencies which could possibly be involved in a wiretap and statements under the penalty of perjury were filed by all such law enforcement agencies denying the use of electronic surveillance or its fruit in investigating and prosecuting the case. The prosecutor thereafter went in camera and apparently explained where the information was obtained as the court held that the "in camera proceeding here did not deal with the question of whether existing illegal taps tainted the proceedings, it dealt with the prior question of whether the alleged illegal surveillance had occurred at all." It is clear that had the prosecutor in D'Andrea told the court in camera that wiretap evidence had tainted the proceedings, no in-camera would have been allowed.

Here, the People have admitted that wiretap derivative evidence is involved. As such, their arguments regarding the propriety of in-camera hearings to establish facts that no wiretap was involved are moot.

D. NOTICE AND DISCLOSURE PRIOR TO THE INTRODUCTION OF WIRETAP DERIVATIVE EVIDENCE IN THE PRELIMINARY HEARING CANNOT BE WAIVED BY THE COURT

While Penal Code section 629.70 provides that the 10-day period may be waived if the judge finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding, and the party would not be prejudiced by the delay, there is no provision in either the state and federal wiretap law for waiver of the requirement to furnish the information. The reason for this is that the notice, inventory, and disclosure are not only statutory requirements, there are constitutionally requirements. Only upon a showing of "good cause" may such notice and inventory be postponed, but even that delay can be no longer than is necessary to achieve the purposes for which it was granted. (United States v. Donovan, supra, 429 U.S. 413, 428-429, 97 S.Ct. 658, 668-669, 50 L.Ed.2d 652; Berger v. State of New York (1967) 388 U.S. 41, 63; 87 S.Ct. 1873, 1884;18 L.Ed.2d 1040.)

If the prosecution did not want to comply with the law, they should not have arrested and charged the defendants when they did; they cannot be allowed to have it both ways!

V

THE PROPRIETY, VEL NON, OF THE IN CAMERA HEARING

HAS BEEN RESOLVED BY THE "BELATED" DISCLOSURE

THAT THERE WAS A WIRETAP

Defense counsel contend that where a statutory scheme is so unambiguous on its face, the only options available to the people are disclosure or dismissal (assuming the prosecution is grasping enough to file a complaint in the first place knowing their obligation to disclose.) Thus, the 1040-1054 Penal Code arguments have been resolved by the July 2, 1998, disclosure. A copy of that letter is appended hereto in the event the People have not attached a copy to their pleadings.

VI

NOT ONLY SHOULD THIS CASE BE DISMISSED,

BUT SINCE THIS CASE INVOLVES INTENTIONAL

NON-DISCLOSURE, THE CASE SHOULD BE DISMISSED

WITH PREJUDICE

It is inconceivable how the People could assert in good faith, without any authority whatsoever for in support thereof, that they were entitled to withhold from the defense the fact the evidence derived from a wiretap was being introduced at the preliminary hearing. More unbelievable is that the People disclosed this fact to the magistrate below and, based on the arguments advanced herein, the magistrate allowed the introduction of such derivative evidence without such notice. Nevertheless, having been so argued and so held, this court has no option but to set aside the information which is entirely based legally inadmissable evidence.

However, since the non-disclosure was calculated and intentional in this case it warrants dismissal of the charges with prejudice. Case law interpreting Title III has held that where, as here, the failure to provide mandatory post-interception notice is for the sole purpose of avoiding the statutory and constitutional requirements of notice, inventory, and disclosure, then suppression of the contents of the communication and all evidence derived therefrom is required. (United States v. Eastman (3d Cir. 1972) 465 F.2d 1057; United States v. Harrigan, (1^st Cir. 1977) 557 F.2d 879, 884-885; United States v. Bellosi (D.C. Cir. 1974) 501 F.2d 273.) ⁽²⁾

"[S]uppression should be required when the statutory violation arose from a conscious decision by the federal authorities to violate the law and prevent an individual or group of individuals from receiving the post interception notice. The unseemliness of government officials deliberately disobeying the law is obvious. In our view, the interest of deterring it outweighs the costs of excluding the evidence.'' United States v. Harrigan, supra, 557 F.2d 879, 884-885.)

CONCLUSION

Based on the forgoing facts and argument, this court should grant defendants' motion to dismiss the information pursuant to Penal Code section 995 and should further order that the dismissal be made "with prejudice."

_________________________________

RICHARD C. CHIER

Attorney for Defendant,

FRANCISCO RAMIREZ

____________________________________

VICTOR SHERMAN,

Attorney for Defendant

RAMON ANGULO

1. In fact, it is fairly obvious the only reason the Federal Authorities did not themselves arrest the defendants was precisely because they knew they would be required to disclose the wiretap operation once criminal proceedings were under way. Apparently they also knew that the Los Angeles District Attorney's Office was managing to bypass that legal requirement.

2. ^0/ Suppression for intentional failure to give notice was mentioned as a possible remedy in United States v. Donovan, supra, 429 U.S. 413, 439, fn. 26, 97 S.Ct. 658, 50 L.Ed.2d 652, but the court refrained from making a ruling as the issue was not then before the court. However, see dissent at 429 U.S. at 445, 97 S.Ct. at 678.)