Attorney At Law
Bar Number
210 West Temple Street #19-513
Los Angeles, California 90012
Telephone:

Attorney for Defendant

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

TO GIL GARCETTI, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES, AND/OR HIS REPRESENTATIVES:

DEFENDANT HEREBY OBJECTS TO THE USE OF IN-CAMERA PROCEEDINGS IN THIS CASE AND REQUESTS A HEARING PRIOR TO THIS COURT'S ENGAGEMENT OF ANY EX PARTE COMMUNICATIONS WITH THE PEOPLE OR THEIR REPRESENTATIVES.

PLEASE TAKE NOTICE that on *, or as soon thereafter as the matter may be heard in Department *, defendant *, through his attorneys, Michael P. Judge, Public Defender and *, Deputy Public Defender, will oppose the District Attorney's request for an in-camera hearings in this case pursuant to Evidence Code section 402, Penal Code 629.50 et. seq., 18 U.S.C. 2510 et. seq., Section 13 California Constitution, and the Fourth Amendment of the United States Constitution.

The opposition will be based on the court documents filed in connection with defendants' case, judicial notice of the pleadings, exhibits, and rulings in Case No. BH000118, the attached exhibits, and such further evidence as will be introduced at the hearing of this matter.

Dated: * Respectfully submitted,

By ____________________________________

STATEMENT OF FACTS

Defendants allege that the evidence used in support of the arrest and prosecution in this case was "derived" from an unlawful wiretap which the People are attempting to conceal. As explained below, this allegation is supported by the past practices of the Los Angeles District Attorney, the procedural maneuvering of this case, the factual scenario asserted in the arrest reports, and the fact that defendants have discovered wiretap records establishing that their communications were previously intercepted by an illegal wiretap maintained by the Office of the Los Angeles County District Attorney.

1. Past Practices of the Los Angeles District Attorney

In March of 1998 the Daily Journal reported that Los Angeles Superior Court Judge Alarcon had denied the in-camera request of Los Angeles District Attorney's Office to conceal, from the very defendants whose telephones were wiretapped, the fact that the wiretap had occurred. Review of the in-camera transcripts disclosed that the People had asserted the governmental privileges of Evidence Code sections 1040 and Penal Code section 1054.6 and alleged that disclosure of the wiretap would compromise a continuing investigation. After delaying disclosure for some eight months, the court finally ordered the People to provide notice when it discovered that the wiretap in question was not only continuing, but intended to be never ending.

Disclosure of the wiretap related records in that case revealed that what was reported to the state and federal government as a "single" wiretap did not simply involve the wiretapping of the defendants' telephone, but involved the wiretapping of an entire cellular telephone company and some 350 customer telephones over a period of almost two years. This volume of wiretapping is extraordinary considering that all states nationwide only issue an average of between 500 and 600 wiretaps annually. These wiretaps, obtained by the People from judges who were entirely without jurisdiction, were issued upon nothing more than a showing that the unknown customers of the telephone company had high a usage of their telephones. When and if some suspected unlawful activity was ever obtained through the use of the illegal wiretap, a subsequent wiretap order would be requested based entirely on the evidence obtained from the previous illegal search. No time was ever wasted on utilizing traditional investigative techniques as required by law. Moreover, each time the People exhausted their unlawfully obtained leads, the pool of "high usage" customers would again be tapped.

This was not the first, but at least the third cellular telephone company targeted by the Los Angeles District Attorney's Office since 1993. These wiretaps comprised only "three" of the more than 100 wiretap orders obtained by the Los Angeles District Attorney which have been thus far revealed. Because the Los Angeles County Superior Courts failed to require the docketing of all applications for wiretap orders, the entirety of the District Attorneys illegal wiretap operations may never become known. However, the FBI's CALEA report established, during a time the people reported less than 20 wiretaps, that Los Angeles County was subjected to 1080 simultaneous interceptions. And while those interceptions included the usage of both wiretaps and pen registers, that fact is of little consequence since the People have admitted that their eavesdropping arsenals include pen registers which are capable of obtaining voice content.

In April of 1998, the Los Angeles County Public Defender's Office, fearing that many of their clients had also been unlawfully denied notice of a wiretap, filed a class petition for habeas

corpus to Judge Larry Fidler, presently designated to issue and supervise all wiretap orders for the County Los Angeles. ⁽¹⁾ The Public Defender's Office alleged that the People had unlawfully concealed their wiretapping operations from criminal defendants, in violation of the state and federal wiretap acts. After conducting further investigation, it was discovered that law enforcement was concealing the fact that they had conducted a mass unlawful surveillance of the Los Angeles Community and there were more wiretaps occurring in the County of Los Angeles than any other State in the nation, and probably more than combined national average.⁽²⁾ This office submitted evidence that the Los Angeles District Attorney had violated virtually every aspect of state and federal wiretap laws.

As a result of the class petition for habeas corpus filed by the Los Angeles County Public Defender for enforcement of the state wiretap laws, the Los Angeles County District Attorney's Office is presently under a court order to provide notice and production to all defendants prosecuted in Los Angeles County State Courts as a result of any wiretap conducted. Judge Fidler granted the Public Defender's Office Petition expressly ruling that, unlike the federal law, California's Wiretap Act afforded defendants broader standing rights to challenge the legality of a wiretap order. The court found "any person" against whom any wiretap derivative evidence was introduced had the right under California law to move to suppress that evidence and were thereby entitled to notice and production, regardless of whether or not that individual was intercepted or named in the wiretap order, so long as an intercepted communication in any way led to an investigation in the case.

"And this also applies to derivative or hand-off warrants, any kind of case where it's either part of a wire tap application or a lead or other evidence that's been developed from an original wire application and then prosecuted based upon evidence where the lead started the case. All of those cases are subject to my order."

Finally, Judge Fidler barred the People from continuing to unilaterally determine whether or not a defendant was entitled to notice and production or whether under any particular set of circumstances said notice and production was not required. Finding that the introduction of derivative evidence required prior notice and production, the court ordered such notice and production be given subject only to the People petitioning the appropriate judicial officer for relief therefrom. Having failed to appeal that decision, the People are presently bound by that ruling which became final on January 13, 1999, and, therefore, are required to provide the statutory disclosure and production required by Penal Code sections 629.68 and 629.70 prior to the introduction of any wiretap derivative evidence.

2. Procedural Tactics Employed by the People

In spite of the court's order, the People have continued to conceal their prior actions. For this reason the People now delay their obligation to disclose the existence of a wiretap by setting the matter for preliminary hearing, then tricking the defense into waiving time by obtaining a continuance based on the assertion that they need to provide the defense with additional discovery. During the continuance period, the People are able to move the case forward through a grand jury indictment. This tactic has allowed the People to obtain that to which they would not otherwise lawfully be entitled, a lengthy pre-indictment incarceration of those defendants.

Another tactic, heretofore effectively employed, was to refuse to either admit or deny that a case which was suspected by the defense of being related to a wiretap, was in fact either a wiretap or an informant. Instead, the deputies and officers involved would simultaneously assert the three government official information privileges. When opposition was raised by the defense, the officers and deputy district attorneys would quickly engage the court in ex-parte communications before the date set for hearing on the propriety of asserting the privilege.

During these illegal in-chamber conferences, the officers and deputy district attorneys would engage a number of deceptive devices to lure the courts into unknowingly becoming accomplices to the concealment of their illegal acts. They would allege that evidence was derived from a wiretap but revelation of that information would compromise an ongoing state or federal wiretap investigation. Not revealed, however, was the fact that the "on-going" investigation was actually a "never ending' investigation or that the underlying wiretaps orders were illegal. Other times, the court was told in-camera that the need for secrecy was to protect a confidential informant. What was not revealed was the fact that the "confidential informant" was actually a wiretap.

This office now has documented numerous instances of outright perjury committed by both law enforcement officers and deputy district attorneys in their attempt to continue to conceal their unlawful wiretap operations. In one such instance, arising out of proceedings in the federal district court, an LAPD officer admitted making false statements under oath in a search warrant affidavit to Los Angeles Superior Court Judge Pounders by alleging the source of the probable was a "confidential informant" when it was in fact conversations obtained from the Atel Wiretap operation. The perjury was compounded when the officer attempted to entangle the court by claiming the judge was well aware that the affidavit was not true. While the federal court found the officer's claim of state court complicity in a violation of the law preposterous, and thoroughly rebuked the government's attorney for advocating such claim, the fact that such allegations were made at all raises substantial concerns for the defendants who were themselves were intercepted in the same wiretap operation. (Exhibit *, Order in Federal Case No. CV97-4442.)

OPPOSITION

TO IN-CAMERA PROCEEDINGS

I

EX PARTE COMMUNICATIONS ARE FORBIDDEN

UNLESS STATUTORILY AUTHORIZED

The District Attorney is not permitted to communicate with a judicial officer on matters pending before the court, nor is the court permitted to consider such ex parte communications, unless expressly authorized by law. (Prof. Conduct, Rule 5-300; Cal. Code Jud. Ethics, Canons 3(A)(4), 3(B)(7); Roberts v. Commission on Judicial Performance (1983) 33 Cal.3d 739, page 746.)

These rules are premised on the recognition that exercise of the power to hold ex parte, in-camera hearings "virtually obliterates as to one party all of the basic and fundamental rights included in our concept of a fair trial: the right to be present during all important stages of the proceedings, the right to hear the testimony and see tangible evidence, the right to test the truth and accuracy of testimony by cross-examination, the right to present rebuttal evidence, and the right to be heard in meaningful argument," and therefore "require a compelling showing of necessity." (Roberts v. Commission on Judicial Performance (1983) 33 Cal.3d 739, page 746.)

II

THE PEOPLE CANNOT BE HEARD IN-CAMERA

WITHOUT FIRST ESTABLISHING INFORMATION REGARDING A

WIRETAP IS NOT BEING CONCEALED

The Los Angeles County District Attorney's Office is refusing to inform criminal defendants whether or not wiretap derivative evidence has been or will be used against them in this case and has instead requested an in-camera hearing to assert the official government privilege. ⁽³⁾

By simultaeously claiming "three related, but separate, privileges," Evidence Code sections 1040, 1041, and Penal Code section 1054.7, the People "attempt to construct a privilege of greater scope than its separate parts," in hopes it will allow them to entirely conceal from the defense the source of the information used in their investigation of this case. (RLI Ins. Co. Group v. Superior Court (1996) 51 Cal.App.4th 415, 437.) However, the People can no longer conceal from the defense, at least through the use of such tactics, their unlawful use of mass wiretapping. As explained by the Court of Appeal in RLI, the courts are required to "address the privileges separately." (Id. At p. 437.) And as to each privilege asserted, the People must first meet their burden of proof of establishing the requisite preliminary fact that the privilege they assert actually exists. (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, page 639; Evi.Code § 402; Mahoney v. Superior Court (1983) 142 Cal.App.3d 937, 940, San Diego Professional Ass'n v. Superior Court (1962) 58 Cal.2d 194, 199.)

A necessary prerequisite to claiming any of the above privileges, and therefore a prerequisite to any ex parte in-camera proceedings, is a showing that what the People seek to conceal is not related to a wiretap.

First and foremost, the People cannot assert Evidence Code section 1040 if what they intend to conceal is the fact that an informant was the source of the information. As explained in the published comment of the Assembly Committee on Judiciary:

"The official information privilege provided in Section 1040 does not extend to the identity of an informer. Section 1041 provides special rules for determining when the government has a privilege to keep secret the identity of an informer." (Comment to Evi. Code § 1040.)

Therefore, as a prerequisite to invoking Evidence Code section 1040, the People must establish, through legally competent evidence, that the privilege is not being asserted to conceal an informant. Conversely, a prerequisite to invoking Evidence Code section 1041, is the establishment of the fact that an informant actually exists and the people are not simply attempting to conceal a wiretap.

Secondly, prior to proceeding in camera on an invocation of either Evidence Code section 1040 or 1041, the People must first establish the information they are seeking to conceal was "acquired in confidence." (Evi. Code §§ 1040, 1041.)

However, if the information was obtained from a wiretap it cannot have been "acquired in confidence."

"Where an informant was a participant in the crime and made a telephone call to defendant that was recorded by police, it has been held that the communications to the police and the informant's identity were not 'in confidence.' " (People v. Otte (1989) 214 Cal.App.3d 1522, page 1533; People v. McShann (1958) 50 Cal.2d 802, 810)

Moreover, the Otte court explained that when an assertion is made that an "informant" is in fact a suspected wiretap, it requires "a more in-depth inquiry by the trial court as to the propriety of the assertion of the privilege." (People v. Otte (1989) 214 Cal.App.3d 1522, 1533.)

Finally, any reliance on Penal Code section 1054.7 would also be misplaced if the information relates to a wiretap. Section 1054.7 only authorizes denial, deferment, or restriction of "disclosures required under this chapter." Penal Code section 1054 explicitly exempts discovery required by other express statutory provisions as well as those which are constitutionally mandated. Since notice and production of a wiretap is both statutorily and constitutionally mandated, (Pen. Code § 629.68, 629.70; United States v. Donovan (1977) 429 U.S. 413, 434, 97 S.Ct. 658, 50 L.Ed.2d 652; United States v. Harrigan, (C.A.1 1977) 557 F.2d 879, 884-885; United States v. Eastman (3d Cir. 1972) 465 F.2d 1057), the People must first establish that they are not seeking to conceal a wiretap prior to this court accepting any invocation of the privilege.

Moreover, even if the People meet their initial burden, no in-camera hearing may take place until the defense has the right to rebut those facts with their own evidence. (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 639.)

III

THE OFFICIAL GOVERNMENT PRIVILEGES

HAVE NOT BEEN EFFECTIVELY INVOKED IN THIS CASE

The privilege in Evidence Code section 1040, does not belong to every law enforcement officer and Deputy District Attorney, it belongs to the "public entity" with control of the information. (Procunier v. Superior Court (1973) 35 Cal.App.3d 211, 212-213.) It cannot, therefore, simply be asserted by an officer, federal agent, Deputy District Attorney, or other person who is merely employed by the entity with the information, it must be asserted by the "person authorized by the public entity to do so." (Evi. Code § 1040(b).) Otherwise, inferior personnel could assert the privilege for their own reason unrelated to the interests of the public, as is believed is being done in this case. Witkin on Evidence explains:

"There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." (2 Witkin, Cal. Evidence (3th ed., 1986)Witnesses, §1227, p.1168.)

Therefore, unless and until there is evidence that "the head" of the public entity in control of the information sought to be concealed asserts the privilege or provides this court with evidence that these officers or deputies are authorized to assert the privilege on behalf of that entity in this particular situation, it has not been properly invoked. Until and unless said privilege is properly invoked, no in-camera hearing can take place.

IV

THE PEOPLE HAVE BEEN ORDERED BY JUDGE FIDLER

TO DISCLOSE A WIRETAP IN ANY CASE

WHERE A WIRETAP LEAD TO AN INVESTIGATION

Information relating to a wiretap for which any defendant "has standing to object should be turned over to him without being screened in camera by the trial judge."(Alderman v. United States, supra, 394 U.S. 165, 182 89 S.Ct. 961, 970-971, internal quotes omitted.) "And. . . this disclosure 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." (Id. at page 181.)

As a result of the Class Petition for Habeas Corpus filed by the Los Angeles County Public Defender for enforcement of the state wiretap laws,⁽⁴⁾ Los Angeles County District Attorney's Office is presently under an court order to provide notice and production to all defendants prosecuted in Los Angeles County State Courts as a result of any wiretap conducted. The court, having found "any person" against whom any wiretap derivative evidence was introduced had the right under California law to move to suppress that evidence, defendants are entitled to notice and production, if they were personally intercepted, named in a wiretap order, or if an intercepted communication in any way led to an investigation in the case.

Moreover, Judge Fidler having barred the People from continuing to unilaterally determine whether or not a defendant was entitled to notice and production or whether under any particular set of circumstances said notice and production was required, defendants are entitled to notice, inventory and production of all wiretap related documents and the People are barred from engaging in any ex-parte communications unless they first establish, through competent evidence at an adversary hearing that the investigation in this case is not in any way related to a wiretap and the defendants are given the opportunity to rebut that claim.

Dated:

Signed

______________________

1. Defendants ask that this court take Judicial Notice of the pleadings and ruling in Case Number BH0011188, which are incorporated herein by reference as if fully set forth herein.

2. All state prosecutors are required by federal law to report each completed "intercept" to the Administrative Office of the United States Courts by January of the following year for review by Congress and the public. Statistics from that office show that over the last 10 years all state courts nationwide intercept an average of about 500 telephones annually. However, review of 11 of the 35 wiretap operations completed by the Los Angeles County District Attorney in 1998 reveal that 341 telephones were intercepted. Clearly if disclosure of only one-third of the County's wiretap operations equals 70% of the nationwide average, full disclosure of all wiretap operations should well exceed the national average.

3. While California has no statutory equivalent to 18 U.S.C. 3504, which requires federal prosecutors to unequivocally admit or deny the existence of a wiretap after making a diligent inquiry and prior to obtaining an in-camera hearing, there is authority for the proposition that the states are required to provide protections equivalent to § 3504. (United States v. Apple (4^th Cir. 1990) 915 F.2d 899; Wiretapping and Eavesdropping, 2^nd Ed. 1998, Cliff Fischman, § 23:18.) However, as will be seen below, there is no need to rely on anything other than California's statutory privileges which themselves require the People to such a showing prior to engaging in an in-camera hearing.

4. Defendants ask that this court take Judicial Notice of the pleadings and ruling in Case Number BH0011188, which are incorporated herein by reference as if fully set forth herein.