MICHAEL P. JUDGE, PUBLIC DEFENDER
Thomas Moore, Deputy Public Defender
320 West Temple Street, Suite 590
Los Angeles, Ca. 90012
Telephone No. (213) 974-0859
| PEOPLE OF THE STATE OF
CALIFORNIA
Plaintiff, v.
REYES SANCHEZ SALCIDO, Defendant |
Case No. BA159367
MOTION FOR DISCOVERY AND/OR REQUEST FOR PRODUCTION OF DOCUMENTS |
TO: GIL GARCETTI, DISTRICT ATTORNEY OF LOS ANGELES COUNTY AND/OR HIS REPRESENTATIVES:
PLEASE TAKE NOTICE that in light of the court's ruling regarding standing to
challenge the entirety of Atel Wiretap Operation defendant Salicido, by and through his attorney
the Public Defender for the County of Los Angeles, will move for a discovery order in
Department 120 on November 18, 1998, at 1:30 a.m., or as soon thereafter as counsel can be
heard.
1. Production of the original sealed applications, designations, orders for interception or extension, and all supporting documents filed with the court in support of the Atel Wiretap operation in their sealed condition or with proof of prior sealing, and/or orders to permitting the unsealing and resealing of such documents.
2. Copies of tapes and transcripts of intercepted communications from the Atel Wiretap Operation.
3. Copies of the original Atel Wiretap Operation "Returns" filed pursuant to United States v. Donovan 97 S.Ct. 658, 429 U.S. 413, 439, fn. 26, 50 L.Ed.2d 652
4. Copies of the original signed sealing orders and order authorizing delay of notice obtained by the People in each and every expired wiretap operation engaged in by the People. (Defendant concedes to a redaction of any confidential information if an investigation is still ongoing.)
5. All logs, charts, and other documentation used or generated during execution of Atel Wiretap Operation including, but not limited to; the monitor logs, the wire room sign-in sheets, document flow charts, agent lists with contact numbers, most called number lists, unknown subscriber lists, end of shift summary reports, 72-hour reports, end of shift instruction reports or lists, significant event charts or lists, and any and all other lists, records, or documentation which reflected that the person monitoring communications disclosed any information to any other person, officer, Deputy District Attorney, or other law enforcement agent or agency.
6. The names, badge numbers, and present work locations of each and every law enforcement officer who intercepted communications in the Atel Wiretap Operation.
7. Evidence of POST wiretapping certification and recertification of any and all foreign language interpreters used in the Atel Wiretap operation, officers applying for Atel wiretap orders, conducting interceptions in the Atel Wiretap operation, using information obtained from intercepted communications from the Atel Wiretap operation, and/or officers who have or will testify regarding information derived from the Atel Wiretap Operation, pursuant to Penal Code section 629.94.
8. Proof that all tapes of interceptions of the Atel Wiretap Operation were and still are sealed.
9. Designation of the interpreter utilized during interception by the District Attorney.
10. Any and all evidence that the recording of intercepted communications in the Atel Wiretap operation was metered.
11. Any and all evidence that the recording of intercepted communications in the Atel Wiretap operation was done in a way that protected the recording from editing or other alterations and can be "immediately verified" as to its authenticity and originality and that any alteration can be immediately detected as required by Penal Code section 629.64.
12. Any and all evidence that the monitoring or recording device used in the Atel Wiretap Operation was of the type and was installed to preclude any interruption or monitoring of the interception by any unauthorized means as required by Penal Code section 629.64.
13. A list of the exact make and model numbers of all pen register available to the Los Aneles Police Department or any other agency which was in any way involved in the interception or disclosure of communications in the Atel Wiretap operation, the exact make and model numbers of the exact pen registers used in this case and any and all manuals or other operating or informational material which will reveal whether such pen register was capable of providing voice content.
14. Any and all pen register logs, documentation, or other written documentation as well as all WSIN reports, for the Atel Wiretap operation.
15. Any and all police reports generated as a result of the Atel Wiretap operation including but not limited to those pertaining to Jose Salazar referred to as "97F0899" in the subsequent report dated February 4, 1998.
16. Any and all forfeiture related documents, receipts, and deposit slips which were related to money seized from the Atel Wiretap operation including but not limited to those pertaining to Jose Salazar referred to as "97F0899" in the subsequent report dated February 4, 1998.
17. Copies of all written materials, including but not limited to memorandum, policy directives, training manuals, or instruction manuals, including the "Overview" by Anthony Meyers, regarding the procedures or policies for conducted a wiretap operation.
18. All "subsequent applications" made pursuant to Penal Code section 629.82 for the use of information from an intercepted communication relating to crimes other than those specified in the order of authorization regardless of whether such communications related to offenses which were or were not enumerated in subdivision (a) of Section 629.52 and any and all orders by judges finding that the contents were otherwise intercepted in accordance with the provisions of this chapter and/or the evidence was obtained through an independent source or inevitably would have been discovered and thereby authorizing the prior use of said information.
19. Copies of each and every expired state wiretap application, affidavit, and order not yet provided to defendant's counsel which has been conducted in Los Angeles County or by the Los Angeles County District Attorney including the interception of all public telephones in Los Angeles County, unless said wiretap relates to an ongoing investigation in which case a copy of the order postponing service of notice, in order to establish the fact that boilerplate wiretap applications are utilized, the People have a custom, habit, policy, and procedure of hiding wiretaps, and misrepresenting wiretap operations as confidential reliable informants.
20. Copies of all wiretap reporting forms filed with California Attorney General for any wiretap conducted in the Los Angeles County or requested by the Los Angeles County District Attorney as required by Penal Code section 629.62.
21. Copies of the redacted orders for interception issued for telephones in Los Angeles County and served on telephone companies within the Los Angeles County Area.
22. Any and all original surveillance logs, reports, or records of investigations, including wiretap investigations, conducted on Atel Cellular Communications prior to the application for the wiretap order, including but not limited to documentation regarding:
A. That principals or employees of Downey Communications engaged in a number of "meetings" Delta Tri-Telesis, Inc., located at 8135 E. Florence Ave., in Downey, California including but not limited to those meetings on January 4, 1994, at or after approximately 16:49 hours, February 7, 1994, at or after approximately 10:05, and February 28, 1994, at or after 13:55 hours or 14:12 hours.
B. The surveillance of Jesus Castillo on, about, or after, October 23, 1995.
C. The surveillance conducted on and after March 11, 1996 regarding suspects followed to 10402 Hasty Ave., Downey, CA.
D. The surveillance on May 6, 1996.
23. Any and all investigation records and wiretap related documents which in any way
related to information used to obtain the wiretap order in this case including but not limited to the
investigation and wiretapping of the Rafa organization.
Dated:
Respectfully submitted,
MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA
By ____________________________________
THOMAS MOORE
Deputy Public Defender
Attorney for Defendant
Defendant contends that Los Angeles District Attorney violated virtually every aspect of the state and federal wiretap laws in this case. Defendant contends that the People intentionally failed to provide defendant with notice and production of this wiretap and unlawfully concealed the existence of the wiretap operation from him in violation of his rights under the state and federal wiretap laws as well as the state and federal constitutions, conscious of and in reckless disregard of the known consequences which was suppression of all evidence derived from this wiretap.
Defendant further contends that is the custom, habit, practice and/or procedure of the Los Angeles County District Attorney to violate these laws, ignore the mandates imposed by those laws, and conceal wiretap operations by intentionally failing to provide defendants with notice and production. This is evidenced by the fact that such violations occurred not only in this case but in many other cases as well. The violations are of "statutory requirements that directly and substantially implement[ed] the congressional [and legislative] intention to limit the use of intercept procedures." This contention is evidenced by the fact that such violations have actually resulted in the mass invasion of privacy of the Los Angeles County Community.
Defendant contends that People and/or their agents have intentionally manufactured or misrepresented material evidence in making the application for the wiretap order in this case. Defendant contends that it is a custom, habit, practice and/or procedure of the Los Angeles County District Attorney to manufacture or misrepresent material evidence in making the application for the wiretap orders as well as other orders.
In support of these contentions, and as evidence to rebut the presumption that officials have properly performed their duties, defendant introduces the pleadings filed in the class habeas corpus petition and their supporting documents which is entitled In Re Reyes Salcido, Case No. BH001118. (Most of the supporting documents from that case have already been introduced into evidence and provided to the court.)
The People have no right to hide expired wiretap-related documents since such documents are public information. Wiretap applications and orders, like all other warrants, must be docketed. While sealing of the information contained therein may be appropriate during the pendency of interception, the courts cannot simply conceal such orders all together as appears to be the practice in Los Angeles County Courts. Such action is clearly improper. (Application of Newsday, Inc., (2nd Cir. 1990) 895 F.2d 74, 78-79; In re Washington Post Co. (4th Dist. 1986) 807 F.2d 383, 393; Press-Enterprise II (1986) 106 S.Ct. 2735, 92 L.Ed.2d .) The sealing and closure of any and all criminal proceedings, warrants, or wiretap applications, affidavits and orders are only constitutional if:
"(1) closure serves a compelling interest; (2) there is a 'substantial probability' that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect that compelling interest. Moreover, the court may not base its decision on conclusory assertions alone, but must make specific factual findings." ( In re Washington Post Co. (4th Dist. 1986) 807 F.2d 383, 393.)
As explained by the United States Supreme Court in Nixon v. Warner Communications, Inc. (1978) 98 S.Ct. 1306, 435 U.S. 589, 55 L.Ed.2d 570, the People have no right to prevent public review of public documents:
"It is clear that the courts of this country recognize a general right to inspect and
copy public records and documents, including judicial records and documents. In
contrast to the English practice, [citation], American decisions generally do not
condition enforcement of this right on a proprietary interest in the document or
upon a need for it as evidence in a lawsuit. The interest necessary to support the
issuance of a writ compelling access has been found, for example, in the citizen's
desire to keep a watchful eye on the workings of public agencies, [citation] and in
a newspaper publisher's intention to publish information concerning the operation
of government." (Id. at p. 598.)
There is no exception to that general right to inspect for wiretap applications, affidavits, or orders as expressly held by the Federal Courts:
"The presence of material derived from intercepted communications in the
warrant application does not change its status as a public document subject to a
common law right of access, although the fact that the application contains such
material may require careful review by a judge before the papers are unsealed."
(Application of Newsday, Inc., (2nd Cir. 1990) 895 F.2d 74, 78-79.)
Dated:
Respectfully submitted,
MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA
By ____________________________________
THOMAS MOORE
Deputy Public Defender
Attorney for Defendant