GIL GARCETTI
District Attorney of Los Angeles County
ROBERT SCHIRN, State Bar No. 39849
Head Deputy District Attorney
PETER J. CAGNEY, State Bar No. 137190
Assistant Head Deputy District Attorney
Major Narcotics Division
345 Hall of Records, 320 West Temple Street
Los Angeles, California 90012
Telephone: (213) 974-6831

Attorneys for Real Party in Interest

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

TO THE HONORABLE LARRY PAUL FIDLER, JUDGE OF THE SUPERIOR COURT, AND TO PUBLIC DEFENDER MICHAEL JUDGE AND DEPUTY PUBLIC DEFENDERS KATHY QUANT AND MICHAEL FISCHMAN, ATTORNEYS FOR PETITIONERS:

On November 17, 1998, this Court issued an order in the Habeas Corpus petition filed by the Public Defender's Office. In summary, this Order required the District Attorney's Office to do the following for all cases in Los Angeles County since the state wiretap statute took effect in 1989:

(1) Comply with Penal Code Section 629.68 (i.e., provide an inventory to persons named in a wiretap order or known parties to intercepted communications);

(2) Comply with Penal Code Section 629.70 (i.e., provide notice of discovery to defendants being prosecuted based on evidence derived from a wiretap).

The People retained the ability to go before an appropriate judicial officer to delay the inventory (Penal Code Section 629.68) or to delay the discovery (Penal Code Section 629.70).

On September 21, 1999, the Public Defender's Office filed an Affidavit, with accompanying exhibits, alleging that the District Attorney's Office has failed to comply with the Court's Order and seeking certain relief and requesting a court date of October 20, 1999 in Department 100.

The Public Defender's Office essentially makes two allegations. They argue that the District Attorney's Office has not complied with the inventory requirement of Penal Code Section 629.68 for the Downey and A-Tel Wiretaps. The Public Defender also complains that the People have not identified all cases related to a wiretap. The People will address both of these allegations in this response, as well as other matters that the Public Defender has raised in its Affidavit.

I

THE PEOPLE HAVE COMPLIED WITH THE

INVENTORY REQUIREMENT FOR THE DOWNEY

AND A-TEL WIRETAP INVESTIGATIONS

The Public Defender's Affidavit alleges that the People have failed to comply with this Court's order to provide an inventory pursuant to Penal Code Section 629.68. To bolster their argument, the Affidavit misstates the Court's order, stating at page 11 that it was "this Court's direct order to investigate and notify all persons who, since 1989, were entitled to notice, inventory, and/or production, unless judicial relief therefrom was obtained . . . ." The Order does not require the District Attorney to "investigate;" rather, it orders the District Attorney's Office to comply with Penal Code Section 629.68 for all wiretaps, past and present.

The People allege that it has been complying with the Court's order with regard to Penal Code Section 629.68. This section requires that an inventory be provided to persons named in the wiretap order or to known parties to intercepted communications, subject to judicial approval delaying such notification. This Penal Code section places no duty on the People to "investigate;" nor does it require an inventory to "all persons," but to "known parties to intercepted communications." In an effort to make their point, the Public Defender has misstated the import of this Court's order, as well as misconstrued the requirements of Penal Code section 629.68.

Apparently in an attempt to show a violation of Penal Code Section 629.68 in the A-Tel Wiretap, the Public Defender obtained an ex parte order dated June 21, 1999, allowing them to use the A-Tel wire monitor logs for that purpose. The A-Tel wire monitor logs had previously been provided to the Public Defender in People v. Salcido, Case No. BA159367, with the express limitation that they be used solely in defense of that pending case. The criminal case concluded on January 19, 1999, when both defendants entered guilty pleas and were sentenced. Approximately five months later, the Public Defender obtained the ex parte order. The June 21, 1999, ex parte order signed by the trial court allowed the Public Defender to "make use of the wire monitor logs to discretely contact parties identified therein to investigate the claim of the Los Angeles County District Attorney's Office that said parties were notified by their office pursuant to Penal Code Section 629.68." See Exhibit g in support of the Public Defender's Affidavit.

The issue of limiting A-Tel to the defense of the pending case had already been litigated before the trial court during the court of the criminal proceedings in Salcido. The People were never given the opportunity to respond to the Public Defender's ex parte request, since they were never given notice. In fact, both defendants in the Salcido case had been convicted by plea and were sentenced on January 19, 1999, some five months before the ex parte discovery order. Had the People been given notice, the People would have demonstrated that they were in full compliance with Penal Code Section 629.68 in the A-Tel Wiretap and that the Public Defender's grounds for requesting an order had no merit.

The Public Defender's Affidavit states that after the ex parte discovery had been granted, "random inquiries" were made to individuals and businesses to determine whether they had received inventory. This haphazard, unscientific, random sampling several years after the fact, is apparently at the heart of the Public Defender's allegation that the People have not complied with Penal Code Section 629.68. The people have never claimed, nor does the law require, that every person in an intercepted communication be given an inventory because that is an impossible burden. In many intercepted communications the identities of one or more of the parties is often unknown, and there is no way of knowing to whom to send the inventory. This is recognized by Section 629.68, which requires only that known parties to intercepted conversations ben given an inventory. [Note that the state statute is much broader than the federal wiretap statute. Federal law requires only that an inventory be given to persons named in the wiretap order, and that an inventory to other persons is in the discretion of the Court.]

Attached under seal to this response as Exhibit 1 are the Application for Order to Serve an Inventory, Order to Serve an Inventory, and Proof of Service for the Downey and A-Tel Wiretaps. These items are submitted under seal pursuant to Penal Code Section 629.66 which states in part that "Applications made and orders granted pursuant to this chapter shall be sealed by the judge. . . . The applications and orders shall by disclosed only upon a showing of good cause before a judge. . . ." Exhibit 1 clearly establishes that the People have been in full compliance with the inventory requirement of Penal Code Section 629.68 for the Downey and A-Tel wiretaps. Furthermore, the People have no objection to the Court reviewing all inventory orders for all wiretaps ever conducted by the Los Angeles County District Attorney's Office.

II

THE PEOPLE HAVE IDENTIFIED CASES

RELATED TO A WIRETAP AS THEY HAVE

BECOME KNOWN, AND CONTINUE TO DO SO.

The Public Defender's Affidavit makes the general allegation that "all of the cases which the Los Angeles District Attorney denied, under oath, in November of 1998, were related to a wiretap, were in fact the result of the People's wiretap operations." The Affidavit then references Exhibit F as providing evidence of this allegation. The Public Defender has taken a shotgun approach in alleging that all 46 defendants in Exhibit F involve evidence derived from a wiretap. This is simply not true. In several cases in Exhibit F the Public Defender has taken a random arrest and attempted to suggest that the evidence derived therefrom is the result of a wiretap. These creative arguments, however, involved tortured reasoning. Some examples include a case involving Vehicle Code infractions (Case No. 7CM10333); a case involving a typical "buy-bust" (Case No. 154817); a search warrant based on a controlled buy (Case No. VA052201); a driving under the influence case (Case No. 6LC03008); patrol officers observing the dropping of a glass pipe (Case No. TA038458); and a suspect arrested on a misdemeanor warrant hiding rock cocaine in his buttocks (Case No. KA036278). To suggest that any of these cases, much less all of them, involve evidence derived from a wiretap demonstrates either poor judgment or bad faith.

In section III B. of the Affidavit, the Public Defender alleges that there are "50 additional cases" in which defendants have standing to challenge evidence derived from a wiretap. The Affidavit alleges that the proof that these "50 additional cases" involve evidence derived from a wiretap is contained in Exhibit F. In reality, Exhibit F contains approximately 26 cases involving 46 defendants. The People have prepared individual responses to the case set forth in Exhibit F. These responses are collectively marked Exhibit 2 and are attached and incorporated herein. Each individual response discusses the Public Defender's evidence that the case was derived from a wiretap. It is clear that their blanket assertion that all these cases were derived from a wiretap is not true.

III

THE PEOPLE ARE COMPLYING WITH THIS

COURT'S ORDER REGARDING PENAL CODE

SECTION 629.70 NOTICE

Section III D. of the Affidavit alleges that ". . . (t)he People have failed and refused to fully comply with the orders of this court, and provide to all Petitioners since 1989 copies of wiretap applications,, orders, and transcripts, pursuant to Penal Code Section 629.70." This Court's Order of November 17, 1998, did not require the People to provide such massive discovery to all Petitioners; rather, it required that the people comply with Penal Code Section 629.70. This section states that certain documents pertaining to a wiretap must be provided to the defense before evidence derived from a wiretap is introduced in evidence in certain court proceedings. The people allege that either the People complied with Penal Code Section 629.70 during the pendency of the criminal case against the defendant or provided notice of the existence of the wiretap to either the defendant or the defendant's attorney of record after the completion of the case.

IV

THE PROPER FORUM FOR RELIEF BY

PETITIONER SALCIDO IS IN THE TRIAL COURT

Section III E. of the Affidavit alleges that Petitioner Salcido in his criminal case obtained massive discovery of the A-Tel Wiretap involving over 65,500 pages of wiretap monitor logs. The Affidavit then alleges that this constituted logs for about one-third of the
telephones tapped. The People agreed that in the criminal case against Reyes Sanchez Salcido, Case No. BA159367, discovery of the A-Tel Wiretap was provided to the defendant. The litigation of the discovery of the A-Tel Wiretap was heard by the trial court, which made various rulings and issued several orders with regard to the discovery. If the attorney for defendant Salcido had any concerns about the discovery provided, that would have been litigated in the criminal case. Apparently, counsel for defendant Salcido was satisfied with the discovery provided, since the defendant eventually entered a guilty plea in that case. The Affidavit conveniently neglects to mention that Salcido was, in fact, convicted by plea in the criminal case pending against him after discovery had been provided.

The last sentence in this section of the Affidavit in a non-sequitur--i.e., it does not follow from what precedes it and is logically inconsistent. It states that ". . . (I)t is clear from the massive number of interceptions which occurred that wiretap operations in Los Angeles County are not being checked or restricted by notice requirements contained in the Wiretap Act." The People allege that the number of wiretaps has nothing to do with the notice requirements in the Wiretap Act. Notice is something which is provided after a wiretap order has been terminated, and it has nothing to do with checking or restricting wiretaps which they are in operation. However, this allegation has an inflammatory ring to it, so it is understandable why it was included by the Public Defender in the Affidavit.

V

THE PEOPLE HAVE NOT MISREPRESENTED THE

NUMBER OF WIRETAPS THAT THEY HAVE OBTAINED

Section III F. of the Affidavit alleges that, "The People have misrepresented to State and Federal authorities the number of wiretaps they have obtained." The apparent basis for this outrageous statement is the Public Defender's belief that in the reporting requirements for wiretaps to state and federal authorities, the People must report each telephone intercepted as a separate wiretap. The People have attached as Exhibit 3 the instructions from the Administrative Office of the United States Courts in Washington, D.C. for reporting wiretaps to the federal authorities. The instructions for completing the reports conclusively demonstrate that the Public Defender's allegation that the District Attorney's Office under-reports and conceals its wiretaps is utterly false. Page 10 of the Instructions is entitled "Common Questions on Reporting Wiretaps." The very first question is, "Q: One order involves three phones. Submit one report or three? A: One (one report per order)." Copies of the form in Exhibit 3 are also used for reporting the number of wiretaps to state authorities. See Exhibit 4, attached.

The People have properly reported to state and federal authorities the number of wiretaps they have obtained. It appears that even though the Public Defender has no evidence to support this allegation, it too has inflammatory appeal to claim that the People are "misrepresenting" the number of wiretaps.

To the best of our knowledge, there has never been a wiretap investigation without prior judicial authorization. Simply put, there have been no secret wiretaps.

VI

THE FORFEITURE ACTION IN FEDERAL COURT

Section IV C 2. of the Affidavit discusses a forfeiture action that was prosecuted in the Central District Federal Court. This involved a search warrant obtained by L.A.P.D. officers that resulted in the recovery of over $250,000 during the pendency of the A-Tel wiretap several years ago.

There is no allegation that a state criminal case was ever filed as a result of this money seizure or that the Los Angeles County District Attorney participated in the preparation of the search warrant or even the forfeiture proceeding in federal court.

The People allege that they have gone to great lengths to explain to law enforcement officers that information derived from a wiretap is not a confidential informant, although it may quality as "official information." The People further allege that they have attempted to educate law enforcement officers in this area so that the type of mistakes made by law enforcement officers as described in this section is not repeated.

The People allege further that this section of the Affidavit is irrelevant to whether the Los Angeles County District Attorney's Office is complying with Penal Code sections 629.68 and 629.70 as set forth in this Court's order of November 17, 1998.

VII

PUBLIC DEFENDER'S CRITICISM OF

WIRETAPS IN GENERAL

Section IV C 3. Of the Affidavit is especially critical of wiretap operations that target pay phones and cellular telephone companies. Of course, no mention is made of the large number of seizures of narcotics, contraband and narcotics proceeds that was made during the wiretap investigation of certain cellular phone companies.

The arguments for and against the use of a state wiretap to target cellular telephone companies are interesting and can be endlessly debated. These wiretaps were reviewed and approved by several specially designated Superior Court Judges. Numerous state prosecutions were filed with evidence derived from state wiretaps involving certain cellular telephone companies, and several of these cases involved litigation of the underlying state wiretap. If a conviction resulted after litigation of the wiretap, the legality of the wiretap could then have been appealed to an Appellate Court by the defense attorney, including the Public Defender. These criminal cases would appear to be the proper forum for litigating the legality of these wiretaps.

This section of the Affidavit contains a recurring theme in the Affidavit; namely, that the Public Defender makes arguments that have nothing to do with whether the District Attorney is in compliance with this Court's Order of November 17, 1998. Apparently, the Public Defender has a philosophical dislike of wiretaps and is using their Affidavit to attack the state wiretap law and its application in Los Angeles County. The Public Defender insists on impugning the integrity of the District Attorney's Office merely because of its opposition to wiretaps. It is understandable why the Public Defender dislikes electronic surveillance, since the evidence can be extremely probative of their client's guilt of the offenses changed. If there is no defense on the merits, then a procedural attack on certain aspects of the state wiretap law is the only available defense. Many of the Public Defenders' arguments against wiretaps as set forth in the Affidavit appear to have nothing to do with the alleged reasons for filing their affidavit in the first place; i.e., this Court's Order of November 17, 1998 requiring the People to comply with Penal Code Section 629.68 and 629.70.

VII

CONCLUSION

In section V of the Affidavit the Public Defender requests that the convictions of all Petitioners denied knowledge of wiretap derivative evidence be reversed. This relief would require the re-litigation in this Court of every criminal case filed against a Petitioner involving evidence derived from a wiretap. The appropriate forum for any defendant to seek relief is the trial court in which the criminal case involving the defendant was heard.

The Public Defender's Affidavit is basically a critique of the A-Tel Wiretap Investigation. The A-Tel Investigation was in progress from May, 1996 to May, 1998 and involved over 20 wiretap applications and extensions. This has been by far the largest and most far-reaching wiretap investigation in Los Angeles County since the inception of the state wire law. This was also one of the first state wiretap investigations conducted in Los Angeles County. The length of the investigation, the number of wiretap orders obtained, and the number of telephones intercepted makes the A-Tel Wiretap Investigation unlike any other wiretap investigation in the history of Los Angeles County. It was also one of the most successful in terms of arrests, seizures, and convictions. At the present time, the People are not aware of any criminal case involving evidence derived from the Downey or A-Tel wiretap investigation that is currently in litigation. Every defendant (other than those with outstanding warrants) involving Downey and A-Tel has had his or her case resolved. The Public Defender has not made a showing why any (or all) of these cases should be re-litigated.

The Public Defender's Affidavit does not allege that the District Attorney's Office has acted improperly as to any Wiretap Order except A-Tel and Downey. As previously discussed in the People's Response, the proper forum for litigating issues arising from these wiretaps is in the trial court where the criminal case involving these wiretaps were litigated.

The discovery, materials, and requests sought by the Public Defender is its Affidavit should be denied because:

1) The People are in compliance with this Court's Order dated November 17, 1998; and

2) The People are in compliance with the requirements of the State Wiretap Law.

October 18, 1999

Respectfully submitted,

GIL GARCETTI
District Attorney

By: (SGD.) _____________
ROBERT SCHIRN
Head Deputy
Major Narcotics Division

(SGD.) _____________
PETER J. GAGNEY
Assistant Head Deputy
Major Narcotics Division

(Filed in Department 100 of the LA Superior Court 10/18/99.)