MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA
Adolfo D. Lara, Assistant Public Defender
Laurence Sarnoff, Division Chief
Albert J. Menaster, Deputy Public Defender
Kathy Quant, Deputy Public Defender
Michael Fischman, Deputy Public Defender
Appellate Branch
(State Bar No. 118603)
320 West Temple Street, Suite 590
Los Angeles, Ca. 90012
Telephone No. (213) 974-3098

Attorneys for Petitioners

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

IN RE REYES SALCIDO, et al.,

Petitioners.

Case No. BH001118

AFFIDAVIT ESTABLISHING VIOLATIONS OF THE ORDERS OF THIS COURT, AND REQUEST FOR ALTERNATIVE ENFORCEMENT













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

Please take notice that on October 20, 1999, at 11:00A.M., or as soon thereafter as the matter may heard in Department 100, it will be established, through the evidence and affidavits filed herein, as well as any and all evidence introduced at the hearing, that the Office of the Los Angeles County District Attorney is in violation of the orders of this court and a class petition for alternative enforcement of the orders of this court will be made by Petitioners, through their attorneys, Michael P. Judge, Public Defender for the County of Los Angeles, Kathy Quant and Michael Fischman, Deputy Public Defenders, who file this action, and the following attorneys whose clients have a vested interest in enforcement of the orders of this court and hereby join in this action:

Bruce Hoffman, Alternate Public Defender, 320 W. Temple Street, LA, Ca. Lawrence H. Hyman, 111 West Washington St., Suite 1625, Chicago, IL 60602. Ralph E. Meczyk, 111 West Washington St., Suite 1625, Chicago, IL 60602. David Evans, 35 S. Raymond Ave., #420, Pasadena, CA 91105. Gregory Cannon, PO Box 4647, San Diego, CA 92164. Jeralyn Keller, 790 E. Colorado, #900, Pasadena, CA 91101. William Ayers, 18411 Crenshaw Blvd., #360, Torrance, CA 90504. Frank Barilla, 2024 N. Broadway, Santa Ana, California. Jack Stennet, 3440 Torrance Blvd., #104, Torrance, CA 90503. Marilyn Van Dam, 880 W. 1st St, #516, LA, CA 90012. David Brockway, Law Offices of Root & Brockway, P.O. Box 10636, Marina Del Rey, CA 90295. Fred Browne, 8939 S. Sepulveda, #235, LA, CA 90045. Richard Caballero, 14526 Blythe St., Panorama City, CA 91402. Luis Carrillo, 3500 W. Beverly Blvd., Montebello, CA 90640-1541. Carey Caruso, 425 S. Beverly Dr., Beverly Hills, CA 90212-4401. Martin Castillo, 5408 E. Beverly Blvd., Los Angeles, California . Richard Chier, 1901 Avenue of the Stars, 20th Floor, Los Angeles, CA 90067. Arthur Close, Close & Associates, 853 Atlantic Ave., #201, Long Beach, CA 90813. John Cogorno, 14121 Beach Blvd., Westminster, CA 92683. Federico DeLaPena, 401 S. Main Street, #201B, Pomona, CA 91766. Paula Drake, 12304 Santa Monica Blvd, #300, LA, CA 90025. Dave Elden, 350 S. Grand Ave., Ste. 3900, Los Angeles, CA 90071. Edward Esqueda, 200 S. Garfield Ave., #300, Alhambra, CA 91801. Jack Fuller, 111 W. Ocean Blvd., Ste 625, Long Beach, California. Anthony Garcia, 4723 E. Florence Avenue, Bell, CA. 90201. Art Goldberg, 1475 Echo Park Avenue, Los Angeles, CA 90026. James Goldstein, 15260 Ventura Blvd, #1730, Sherman Oaks, CA 91403. Joseph Gutierrez, 869 N. Garfield Ave., Montebello, California. Earl Hanson, 205 S. Broadway, #902, LA, CA 90012. Joann Harrold, 543 Via Lido Soud, Newport Beach, CA 92663. Stephen Hogg, Law Offices of Hogg & Hogg, 3605 Alamo St., #330, Simi Valley, CA 93063. Joe Ingber, 205 S. Broadway, # 900, LA, CA 90012. Donald Kelly, 818 Manhattan Beach Blvd., Manhattan Beach, California. Michael Kilts, 1122 E. Green St., 2nd Floor, Pasadena, CA. Thomas Loversky, 107 Torrance Blvd., #200, Redondo Beach, CA 90277. Bruce Margolin, 8749 Holloway Drive, LA, CA 90069. Joseph McCarthy, 1840 S. Gaffey St., #476, San Pedro, CA 90731. Mike McDonnell, 440 East La Habra Boulevard, La Habra, CA 90631. Leo Newton, 1502 N. Broadway, Santa Ana 92706. Wilo Nunez, 2675 Olive St, Huntington Park 90255. John Passanante, 14526 Blythe St., Panorama City, CA 91402. Joseph Porter, 206 3rd St., Seal Beach, CA 90740. Peter Priamos, 18411 Crenshaw Blvd., Torrance, California. John Robertson, 1055 Wilshire Blvd., #1702, LA, CA 90017. Roger Rosen, 10000 Santa Monica Blvd., Suite 320, Los Angeles, Ca. 90067-707. Victor Sherman, 2115 Main Street, Santa Monica, Ca. 90405. Howard Shopenn, 8484 Wilshire Blvd., #705, Beverly Hills, CA 90211. Charles Spagnola, 12453 Lewis St., #102, Garden Grove, CA 92640. Thomas Stanley, 18321 Ventura Blvd., #800, Tarzana, CA 91356. Christine Vento, P.O.BOX 691071, Los Angeles, Ca 90069-9071. Joseph Vodnoy, 316 W. 2nd St., Los Angeles, California. Philip A. De Massa, 1495 Pacific Hwy, Suite 204, San Diego, Ca. 92101. Matthew Kaestner, 555 E. Ocean Blvd., #605, Long Beach, CA 90802-5053. Ralph Rios, Law Office of Rios and Taguchi, 11401 E. Valley Blvd. #204, El Monte, CA 91731-3257. Ronnie Duberstein, California Appellate Project, 611 Wilshire Blvd. 2nd floor, LA, CA 90017. Anita Olp, 301 E. Ocean Blvd., #1200, Long Beach, CA 90802-4839. Edward Hall, 611 Civic Center Drive West, Santa Ana, CA 92701. Mark O. Heaney, Law Offices of Barry Tarlow, 9119 Sunset Blvd., Los Angeles, Ca. 90069. The National Lawyers Guild, Los Angeles Chapter, 8124 W. 3rd St., Suite 901, LA, CA 90048. James M. Simmons, 632 Brooks Ave., Venice, CA 90291, and La Chelle M. Woodert, 3540 Wilshire Blvd., Suite 838, Los Angeles 90010, individually and on behalf of Southern California Chapter of the National Conference of Black Lawyers.

Expressly exempted from this petition, and included only insofar as they are relevant circumstantially to the violations alleged herein, are defendants in capital cases, so as to avoid any possible claim of depletion of their appellate rights to pursue future habeas corpus petitions.

INTRODUCTION

More than nine months ago, in response to showings and admissions that the District Attorney had failed to abide by requirements of federal and state wiretap laws, this Court issued remedial orders. The relief afforded by this court was not restricted merely to Petitioners who were represented by the Office of the Public Defender or Alternate Public Defender, but extended to all criminal defendants who had been denied their right to notice or production. The instant proceedings are brought before this Court because the District Attorney has failed to abide by those orders.

Subsequent to the rulings and orders made by this court, one Petitioner obtained discovery which yielded information clearly establishing that misrepresentations had been made by the District Attorney to this Court and that the People are continuing to conceal, in violation of the orders of this court, their wiretap operations from Petitioners who are entitled to notice. Evidence of those misrepresentations and violations are presented in the exhibits attached hereto. Because the District Attorney has obtained a "gag order" regarding the above mentioned discovery, such evidence is presented herein under seal. Petitioner has prepared and attached summaries of the exhibit's contents, also filed under seal.

The Superior Court relies upon the District Attorney for the information needed to satisfy the Court's own legally mandated wiretap-related reporting requirements. Through its misrepresentations to the Court, the District Attorney has caused the Court to be unable to meet its own obligations. In these proceedings, Petitioners request that this Court provide alternative remedial orders so that each of them can avail themselves of the rights and protections the state and federal legislatures have prescribed.

The Fourth Amendment protections which attach in wiretap cases differ from those attendant to other types of searches. Thus, in order to obtain a wiretap warrant, the law requires the involvement of the District Attorney and the supervision of the court. The reason wiretap warrants differ from "ordinary" search warrants, which are obtained without a public prosecutor's approval and executed without court supervision, is that wiretaps are undetectable invasions of privacy which pose a substantial risk of abuse and misuse by overzealous police activity if limited in their use and thereafter carefully monitored. The Legislature imposed, as an additional protection, that the District Attorney, an elected official subject to the political process, be personally accountable for all wiretap warrants to insure objectivity and avoid unwarranted intrusion of the public's right to privacy. When the District Attorney violates that trust, by refusing to abide by the wiretap laws or the orders of this court, it is incumbent upon the Judiciary to take the steps necessary to reinstate confidence in the execution of our laws. These proceedings are brought to effectuate that goal.

Petitioners, a class of defendants in criminal cases who have standing to challenge the lawfulness of wiretap-derivative evidence but who continue to be denied the right to a full and fair suppression hearing as a result of the People's intentional failure to provide notice, inventory, and production as ordered by this court, by and through their attorneys, hereby allege as follows:

I. THIS COURT ORDERED THE PEOPLE TO DISCONTINUE CONCEALMENT OF WIRETAP OPERATIONS AND PROVIDE NOTICE, INVENTORY, AND PRODUCTION TO ALL PERSONS DENIED THOSE RIGHTS SINCE 1989

On April 17, 1998, this office filed a petition for writ of habeas corpus which alleged the Los Angeles District Attorney had an established practice and policy which violated the state and federal wiretap laws by failing to comply with the notice, inventory, and production requirements of 18 U.S.C. § 2518 and Penal Code sections 629.68 and 629.70.

On November 17, 1998, this court granted a portion of the relief sought in that petition and ordered the Office of the Los Angeles County District Attorney, then present in court, to search their records and, if compliance had not already been made, to then:

1. Comply with Penal Code section 629.68 and provide notice and inventory to all persons named in a wiretap application or intercepted as a result of a wiretap since 1989; and

2. Provide notice and comply with the production requirements of Penal Code section 629.70 for each case prosecuted in the County of Los Angeles since 1989 which was based on evidence which had either: A) Directly resulted through the use of a wiretap; or B) Had been developed from a lead obtained through a wiretap.

A copy of that order is attached hereto as Exhibit A and made a part of this petition.

II. THE PEOPLE AT ALL TIMES HAD THE ABILITY TO COMPLY WITH THE ORDERS OF THIS COURT

The People and their agents have, at all times since the making of that order, been in possession or control of all relevant records which would have allowed them to determine all persons entitled to notice, inventory, and/or production of wiretap-related documents and have had the ability to fully comply with the orders of this court. In addition to having exclusive access to all the relevant wiretap-related documents and correlative investigative reports, the People have at all times had access to databases which contain all information obtained from their wiretap operations, investigations which subsequently occurred, and a broad array of intelligence information regarding the identities and whereabouts of all affected persons. Therefore, all information necessary to effectuate service on all persons entitled to notice, inventory, and production has, at all times, been available. The People have had nine months, more than sufficient time to have complied with the orders of this court, and have failed to do so.

III. THE PEOPLE HAVE VIOLATED THE ORDER OF THIS COURT BY CONTINUING TO CONCEAL THEIR WIRETAP OPERATIONS

A. The Office of the Los Angeles County District Attorney Erroneously Denied to This Court, Under Oath, the Use of Wiretaps in the Cases Alleged in the Traverse, When in Fact Wiretaps Were Used

Petitioners now possess ample evidence to contradict the People's allegation that they are no longer concealing their wiretap operations.

In their responses to the allegations filed herein, the People admitted their failure to provide notice, inventory, and production, and submitted to this court a list of 99 criminal cases which they alleged represented all the state and federal wiretap cases prosecuted by the Office of the Los Angeles County District Attorney. (Exhibits B and C.) The People thereafter argued that a hearing was unnecessary because their voluntary disclosure had rendered the issue moot.

In rebuttal, Petitioners submitted evidence of 19 additional defendants who were entitled to notice and production because their cases were believed to have been derived from a wiretap but were "still undisclosed."(1) Petitioners alleged there were still "far more" defendants who were being denied their rights, and compliance with state and federal wiretap acts would only be accomplished through a full adversary hearing.

In response, the People submitted to this court an affidavit in their supplemental return which alleged that three of the cases listed in the Traverse had been omitted by mistake,(2) one was unknown because Petitioners failed to provide a case number,(3) and, as to the misdemeanor cases Petitioners listed, the People simply refused to investigate, admit, or deny that such cases were related to a wiretap.(4)

As to the remaining felony cases listed in the Traverse, the People submitted to this court an affidavit with attached exhibits, which alleged that they had reviewed their files and records, spoken to their deputies, and determined that those cases did not involve an underlying wiretap.(5)

In reliance on that sworn statement, this court found it unnecessary to hold a hearing to determine the identities of any remaining Petitioners who were still being unlawfully denied notice and production. Instead the court explained the broad standing definitions in the State Wiretap Act and ordered the People to comply if they had not already done so.

In January of 1999, Petitioners discovered evidence(6) which established that Petitioner MacClean's prosecution in Case Number BA149378, which the People's Supplemental Return filed in November of 1998 had asserted under oath in did not involve the use of a wiretap,(7) was in fact the direct result of information obtained from the Atel Wiretap Operation.(8)

After providing Deputy District Attorney Robert Schirn with evidence of this fact, Counsel for Petitioners requested, but never received, admission from the People of the wiretap-related nature of MacClean case. Prior to the expiration of the time within which to file an appeal, Petitioners requested confirmation that the People performed a diligent search of their records for additional wiretap-related cases not previously disclosed, as required by the orders of this court. Instead, upon subsequent inquiry, Counsel for Petitioners was informed by Deputy Schirn that the People considered themselves in full compliance with the orders of this court. When an oral inquiry was made regarding whether there had been any new independent search or confirmation, counsel was informed that any further relief would need to be obtained from the court.

Prior to seeking that relief, the applications and orders for the Atel Wiretap Operations provided Petitioners in this proceeding, and a small portion(9) of the wire monitor logs subsequently obtained through the criminal discovery process in Petitioner Salcido's case, were reviewed by Petitioner in an attempt to determine if the People were otherwise in compliance with the orders of this court.

That review has disclosed that not one, but 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. (10) Attached hereto in sealed Exhibit F, and incorporated herein by reference as if fully set forth herein, is the evidence establishing those cases listed in the Traverse which were suspected of involving a wiretap were indeed wiretap-related cases.

Moreover, Petitioners have discovered that this was not the only instance in which the People misrepresented to the court the extent of their wiretap operations. On August 25, 1998, an additional false denial was made to this court in the case of People v. Duane Herman Bowen, Case No. BA 155309. (Exhibit D-"Bowen.") Petitioner's attorney Roger Rosen(11) suspected the use of a wiretap and requested, through formal discovery procedures, compliance with the mandatory notice and production requirements of the law. In opposition to that motion, the People filed with this court an opposition which alleged "THERE WAS NO WIRETAP." (Exhibit D, "Bowen," Attachment No. 10, p. 3.) As can be seen from the evidence attached hereto in Exhibit D, there was, in fact, a wiretap.

B. The People Have Failed to Comply With This Court's Order to Notify All Petitioners Who, Since 1989, Have Been Entitled to Such Notice

In spite of 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 People have failed and refused to provide such notification.(12) The declarations filed by Deputy District Attorney Peter Cagney alleged, under oath, that the People had already provided in June of 1998, such notification for a number of their wiretap operations, including those targeting the Atel and Downey Cellular Telephone Companies and that the People were then in the process of providing such notification in all remaining wiretap operations. (Exhibit E, p. 5, item 14.)

Between January and June of 1999, Petitioners made a cursory review of those cases in which the People admitted they concealed a wiretap as well as relevant portions of the People's wiretap records thus far disclosed. Review of the cases revealed that the People were able to conceal their wiretap operations from both Petitioners and the Courts by failing, and often refusing, to explain why a surveillance was being conducted, or by making false allegations that the source of the information was a confidential reliable informant rather than a wiretap. Review of the wiretap records revealed far more arrests than what the People had alleged.

This Office then began an investigation of cases suspected of being related to a wiretap because they contained similar factual scenarios.(13) This Office also collected and compiled information from wiretap records.(14) In an attempt to determine if the People were complying with the orders of this court, Petitioners attempted to locate evidence which would independently establish that defendants in suspected cases had standing to challenge the People's wiretap operations. Because wiretap-related documents are still being unlawfully concealed, such documentary evidence has most times been unavailable.

However, in spite of the scarcity of records available for review, Petitioners have been able to obtain documentary evidence that establishes defendants in 50 additional cases have standing to challenge any and all evidence derived from the wiretap operations conducted by the Office of the Los Angeles County District Attorney. The attached evidence reveals that these defendants or their co-defendants were the target of a wiretap, resided in a location where intercepted conversations occurred, were investigated and arrested as a result of the People's wiretap operations or were personally intercepted by a wiretap. (Exhibit F.) In many of these cases the evidence discovered established not only that such defendants had "standing" to challenge any evidence which may have been derived from the wiretap, but that such wiretap actually "tainted" their prosecutions because information obtained by law enforcement through the monitoring of conversations directly led to their investigation and arrest.

Inquiries were made of defense attorneys involved in those suspected cases, as well as random businesses and individuals who had been intercepted, to determine if the People have provided them with notice and inventory. (15) Those inquiries revealed that such notification had never been provided by the Office of the Los Angeles County District Attorney. (Exhibit L.)

C. Over Three-Hundred Defendants Are Now Known to Have Standing to Challenge Wiretap Operations Conducted by the Los Angeles District Attorney

Contrary to initial prosecution representations, which minimized, masked, and concealed the number of defendants who were entitled to challenge the People's wiretap operations by claiming that there were a total of 85 cases in which wiretap surveillance techniques were utilized, and that defendants in only 58 of those cases were denied information concerning the wiretap surveillance while their cases were pending,(16) it is now known that at least three hundred defendants had standing to challenge the People's wiretap operations and another 125 suspected cases are still being investigated. (17) Yet only a handful of these defendants have been provided with notice and inventory and fewer still have been provided copies of wiretap related documents and transcripts.

The People's refusal to fully comply with the notification orders of this court has also allowed them to evade challenges to their most egregiously illegal wiretap operations such as Atel. As can be seen from Exhibit F, the People engage in two totally different types of court-authorized wiretap operations. One appears to comply with the requirements of exhaustion, specificity, lawful execution, and notice. The other, however, is broad-based, widespread, clandestine and illegal. Notice, inventory, and production of these wiretaps are never provided. Defendants intercepted by the latter type of wiretap, who are not immediately arrested, subsequently become the target of what appears to be a lawful wiretap. While the People readily disclose the apparently lawful wiretap, they intentionally fail to provide notice, inventory, and production in the other.

Exhibit F documents this procedure by tracking the extensive wiretapping conducted against the telephones of the Beltran Family and their associates in the Atel Wiretap Operation. The People's failure to fully provide notice, inventory, and production allowed them to conceal the true source of the information used to obtain wiretap orders for the telephones of Fermin Beltran. While Fermin was notified of the apparently legal "spin-off" wiretap, he was never given notice, inventory, and production of the Atel Wiretap Operation, in spite of the fact that we now know he had standing to challenge those orders. (Exhibit F, Wiretapping of the Beltran Family.) Listed by the People as a case in which their wiretap operations were disclosed, this defendant was actually denied his rights and barred from challenging illegal tainted evidence.

It is believed and alleged that these scenarios are not isolated instances but established protocol in wiretap cases and one reason why wiretap orders obtained by the Los Angeles County District Attorney remain concealed. It is believed, and thereby alleged, that the defendants arrested as a result of the Telemundo and Downey Wiretaps were similarly denied their rights. To date, the People have refused to produce to those defendants the records pertaining to the wiretapping of public pay phones as a result of an order issued by Judge Lance Ito on March 19, 1993. It strains credulity to think that this $300,000.00 wiretap operation which lasted one month and cost six times more than the average wiretap did not result in at least one subsequent investigation. The District Attorney admitted as much to the California Attorney General when it reported that this wiretap enabled them "to get an inside look at the operation in this country of a cell of a Columbian drug organization" and "greatly benefitted" law enforcement in "obtaining future targets." (California Attorney General Report on Interceptions of Criminal Conversations, 1994 p. 6.)(18)

It is believed, and hereby alleged, that enforcement of the orders of this court will reveal that many defendants in cases where the wiretap is alleged to have been "revealed" were in fact similarly denied their rights. (19)

D. The People Have Failed and Refused to Comply with this Court's Order to Provide Wiretap-Related Documents

The 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. In spite of the fact that requests for such production have been made, most Petitioners have never been provided with copies of the wiretap applications, orders, and transcripts to which they are entitled.(20) Moreover, fewer have been provided with the transcripts of intercepted conversations. These violations of the orders of this court have denied Petitioners with standing to challenge the use of wiretap-derivative evidence the ability to do so, as required by Penal Code section 629.70.

E. Non-Compliance With The Discovery Orders of Other Courts Has Also Lead to Concealment of Wiretap Operations

Subsequent to this court's orders, named Petitioner Salcido was found to have standing to challenge the legality of the "Atel Wiretap Operation" in his criminal prosecution and the People were ordered to make available for inspection and copying the tapes and wire monitor logs for that wiretap order.

Compliance with discovery regarding this "single" wiretap order, "one" of more than one hundred orders obtained by the People, illustrates the massive scope of the wiretap operations which have occurred. The tapes in the Salcido case from the Atel Wiretap Operation could not be hand-carried to court for inspection as usual because their retrieval required the use of a forklift. Production of officers' notes summarizing the conversations overheard given to Petitioner Salcido amounted to over 65,000 pages of wiretap monitor logs. More alarming was the fact that in spite of the court's order to produce, a subsequent inventory of the logs, a task which took almost a month to accomplish, revealed that the People had only produced logs for about 1/3 of the telephones tapped.(21) It 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.

F. The People Have Misrepresented to the State and Federal Authorities the Number of Wiretaps they Have Obtained

As explained throughout these proceedings, each telephone authorized to be intercepted is required to be reported. (22) The Office of the Los Angeles County District Attorney has yet again misrepresented to Congress, the California Legislature, the United States Courts, and the Public the number of wiretaps they have obtained (23) Of note is the fact that the wiretap order referred to in the People's Return as Atel # 2, issued by Judge Ouderkirk on June 20, 1996, was reported as a "single" wiretap when it in fact intercepted over 250 telephones.

Exhibit N, attached hereto and incorporated by reference, is a Wiretap Report generated by the Los Angeles County Public Defender's Office containing information obtained from the actual wiretap orders and inventories referred to in the state and federal wiretap reports which Petitioners have in their possession. A comparison of the three reports discloses that the Office of the Los Angeles District Attorney reported a total of 39 wiretaps in 1998 when in fact at least 324 telephones had been wiretapped.

IV. THIS COURT CAN NO LONGER TRUST THE PEOPLE TO FULFILL THEIR OBLIGATIONS UNDER THE WIRETAP LAW

A. The People's Sworn Misrepresentations to this Court Have Been Intentional

The People's misrepresentations to this court may be alleged as grossly negligent but appear more likely to have been knowingly and intentionally made. This is established by the fact that when they submitted to this court their false statement, under oath, denying the use of a wiretap in the cases listed in the traverse, they had in their possession and control the evidence and information necessary to substantiate Petitioners' claims that such wiretaps were used. Petitioners themselves submitted into evidence and served upon the People in support of the Traverse prior to the People making the sworn false denial, an L.A.P.D police report which revealed, and in some instances admitted, the relationship between the suspected cases and the People's wiretap operations. (24) Moreover, that document had been provided to Petitioners by the Major Narcotics Division of the District Attorney's Office itself.

Nor can the People claim that the false denials were based on an ignorance or misinterpretation of California's Wiretap Act. As can be seen from the sealed evidence, many of the defendants who the People denied under oath fell within the "traditional" federal standing status, had in fact been either the identified target of the wiretap order, intercepted by the wiretap, or reside in a residence from which conversations were intercepted. The false denials of the People were, therefore, in violation of both the state and federal wiretap acts. The People's failure in this regard cannot be tolerated by this court.

B. The People's Refusal to Comply With the Orders of this Court Was Intentional

The passage of more than nine months has provided the People with sufficient time to have effectuated full compliance. The People and their agents have continually entered into databases the names, telephone numbers, and addresses of all persons intercepted, along with summaries of their conversations and subsequent investigations, which would have made identification, compilation, retrieval, and the mailing of notices in compliance with this court's order a relatively straightforward task to accomplish during the time thus far provided.

Although tardy effectuation of service may have required more effort for some individuals than would have been necessary had notice been served within 90 days as required by law, all individuals contacted by petitioners and listed in Exhibits F and L were readily available for acceptance of service, their whereabouts known by the People as a result of either incarceration or continued utilization of the same telephone. Therefore, as to each person listed in Exhibits F and L, the failure to provide notice is clearly an inexcusably intentional refusal to comply with orders of this court. And as to those Petitioners for whom there is representation through counsel, notice, inventory, and production of the wiretap-related records and transcripts to their attorneys, as requested, could easily have been accomplished.

C. The People Have a Motive to Continue to Resist Disclosure of Wiretaps

1. The Evidence Discloses That Wiretaps Were Conducted Without Legal Judicial Authorization

Review of a small portion of the wiretap applications, orders, and wire monitor logs has revealed that numerous telephones were wiretapped prior to obtaining judicial authorization. While the state and federal law provides that under exigent circumstances wiretap authorizations may be orally authorized, written authorization must be obtained within 48 hours of that oral approval. (Pen. Code section 629.56.) As can be seen from the wiretap orders themselves(25) and the information disclosed in Exhibit N which summarizes the information contained in the discovery provided by the People, not only did the People violate state and federal law by failing to obtain written judicial authorization within the 48 hour period, in many instances it appears that no written judicial authorization was ever obtained. (Exhibit N.)

2. Concealment of Wiretaps

Contrary to the law, in many cases the People never disclosed to the courts the fact that the information used to support probable cause for an arrest warrant, search warrant, or wiretap order was obtained from a wiretap. Instead, the People and their agents have continuously withheld that information and misled courts in affidavits which were made under penalty of perjury that falsely alleged the source of the information was a confidential informant. However, just as the "official information privilege provided in Section 1040 does not extend to the identity of an informer," it has long been held that a wiretap can in no way be classified a "confidential informant." (Comment to Evid. Code § 1040; People v. Otte (1989) 214 Cal.App.3d 1522, 1533; People v. McShann (1958) 50 Cal.2d 802, 810.)

In addition to those cases established in Petitioner's Traverse,(26) and attached hereto under seal, evidence of false statements under oath alleging as the source of information a "confidential informant" rather than a wiretap has since been condemned in the Central District Federal Court. (United States v. $265,260.32, Alvarado, (1999) Case No. CV 97-4442 AHM.)

According to the opinion and order of the Federal Court, Efrain Rodriguez Alvarado was a customer of the Atel Cellular Telephone Company. His was one of the first of some 350 telephones tapped in the Atel Wiretap operation. The police overheard communications regarding the transfer of over $250,000 from a Mexican bank-account to a Home Savings of America bank in Whittier, California. The money was obtained by Mr. Alvarado through the sale of a home he had inherited and was intended to be used to purchase a home in the United States. L.A.P.D. Officer Johnny Sanchez admitted that there were no conversations overheard on the wiretap which in any way referenced drugs, even in code. Yet the information was "handed-off" through supervising Detective Robert Baker to Detectives Judy Barham and Margarita Hermosillo, who alleged in an affidavit under oath to Los Angeles Superior Court Judge Pounders that a confidential reliable informant had stated that unknown male Hispanics were on their way to the bank to collect narcotics-related funds. The warrant was issued by Judge Pounders, the money was seized, and a federal forfeiture action was instituted.

It was not until L.A.P.D. Detective Johnny Sanchez was on cross-examination more than a year and half later that there was finally an admission that no confidential informant existed and in fact the only information known about Mr. Alvarado was that which was obtained from the Atel wiretap.

In response to the Federal Court's outrage on learning that the officers lied under oath to obtain the search warrant, the L.A. City Attorney, acting as a Special Prosecutor in the federal case, asserted that the officers informed him that Judge Pounders "was fully aware that her affidavit was not true" but signed the warrant anyway "because he was aware that in general there was an ongoing undercover investigation involving wiretaps." In response the court "expressed amazement that a lawyer representing the government would rely upon such statements from a detective who herself executed a false affidavit and then would advocate to [that] court a position that was dependent upon a finding that a state court judge had been complicit in a violation of the law."

A copy of the Federal Court ruling and order is attached hereto as Exhibit Q, and incorporated by reference as if fully set forth herein.

3. Overbreadth of Wiretap

It appears from the wiretap operations thus far reviewed that broad wiretap operations targeting pay phones and cellular telephone companies invade the private conversations of many people other than the target.(27)

This is substantiated by the fact that in spite of their length and high cost, these wiretap orders, often fail to produce the very evidence which they were allegedly sought to obtain. The owners of the targeted telephone companies are never charged with the criminal offenses they were allegedly conspiring to commit although their customers, previously unknown but "incidentally" intercepted, are charged with such criminal offenses, usually after they themselves become the target of a new wiretap order. By either adding the customers' telephone numbers to the list of "previously unknown co-conspirators" of the telephone company, or piecing together in an affidavit information obtained from all wiretaps previously stored in a database, the People are able to completely evade the "exhaustion" requirements (Pen. Code § 629.50(d)) of the state and federal laws and expand the wiretap operation without the need to conduct any investigation whatsoever. By simply concealing from the courts the source of the information, and evading the notice and inventory requirements by alleging a "continuing investigation," the wiretap operation against the "corrupt telephone company" transformed to focus wholly on the friends, family, and associates of the customers, who were in no way even remotely connected to the telephone company, while the suspicions about the alleged target diminished with each passing month, the wiretap failing to produce any substantiating evidence .

V. THE ORDERS OF THIS COURT MUST BE SCRUPULOUSLY ENFORCED TO ASSURE ALL PETITIONERS THEIR RIGHTS

The People have had sufficient opportunity to comply with the orders of this court. Their failure to voluntarily do so requires court intervention.

The law requires that the convictions of all Petitioners denied knowledge of wiretap derivative evidence, be reversed and they be so provided the right to move for exclusion. (People v. Filson (1994) 22 Cal.App.4th 1841.)(28) However, without enforcement of this court order to provide notice of the use or existence of a wiretap, most Petitioners cannot even obtain knowledge their rights were violated.

The post-conviction revelation of the existence of a wiretap requires suppression of any evidence which Petitioners can establish was tainted by such wiretap. (United States v. Apple (4th Cir. 1990) 915 F.2d 899.) However, without enforcement of this court's order to produce wiretap related documents, Petitioners cannot make the necessary showing of taint.

Petitioners now seek only enforcement of the prior orders of this court and a means by which they may expeditiously enforce their rights and any additional orders this Court may determine are necessary to achieve compliance by the People.

[List of Exhibits]

In support of this affidavit, the following exhibits have been lodged with this court at the time of the filing of this affidavit, and are incorporated herein by reference:

Exhibit A - A copy of the order of this court.

Exhibit B - A list of all Admitted State Wiretap-Related cases.

Exhibit C - A list of all Admitted Federal Wiretap-Related Cases.

Exhibit D - Summary of Evidence and Evidence establishing that Petitioner Duane Herman Bowen's prosecution in BA 155309 was related to a wiretap. Filed under seal.

Exhibit E - The People's sworn affidavit denying that the Cases Listed in the Traverse were related to a wiretap.

Exhibit F - Undisclosed Cases: Filed under seal.

1. A list of Petitioners who can establish they have standing to challenge wiretap derivative evidence yet have never been provided with notice, inventory, or production.

2. Filed under seal is evidence in support of these allegations for each listed case.(29) For the convenience of the court the evidence is preceded by a brief summary of its contents and presented in the following order:

a. Undisclosed Cases denied as wiretap-related in the traverse.

b. Undisclosed Wiretap Investigations of the Beltran Family

c. Undisclosed Cases which arose in 1995.

d. Undisclosed Cases which arose in 1996.

e. Undisclosed Cases which arose in 1997, Parts I and II.

f. Undisclosed Cases which arose in 1999.

Exhibit G - A copy of the order obtained by the People which barred the Public Defender's Office from use or disclosure of the wire monitor logs in the Atel Wiretap operation; and

A copy of the ex parte order, issued by the court in camera, under seal, and in the absence of the presence of the District Attorney, which exempted Petitioners from such order for the purpose of establishing these violations and introducing, under seal, the evidence to support such allegations.

Exhibit H - A list of cases suspected of being related to wiretap.

Exhibit I - Copies of the requests for compliance with the orders of this court made by Petitioners and the People's response thereto.

Exhibit J - A chart depicting the periods that state wiretap operations were ongoing and which suspected and admitted state wiretap-related cases occurred during or soon after each such wiretap and a chart depicting the actual length of L.A. County wiretaps.

Exhibit K - Declaration of Susanne Blossom regarding the impossibility of obtaining copies of orders delaying notice. Filed under seal.

Exhibit L - Declaration of Kathy Quant, Deputy Public Defender regarding compliance with the court's order to provide notice. Filed under seal.

Exhibit M - A list of all known telephones wiretapped in the Atel Wiretap Operation and an inventory of the telephone logs obtained by Petitioners.

Exhibit N - A Wiretap Report generated by the Los Angeles County Public Defender's Office containing information obtained from the actual wiretap orders and inventories regarding the number of telephones known to have been actually wiretapped, and the jurisdiction of the judges issuing such orders.

Exhibit O - California Attorney General's Wiretap Report for 1998.

Exhibit P - The 1998 Wiretap Report from the Administrative Office of the United States Courts.

Exhibit Q - A copy of the Federal District Court ruling and order in United States v. $265,260.32, Alvarado, (1999) Case No. CV 97-4442 AHM.

Exhibit R- A sampling of logs and prints out of the Special Investigations Division (S.I.D.) database. Filed under seal.

WHEREFORE, Petitioners hereby respectfully request that this court itself:

1. Find that those Petitioners in Exhibits D and F have standing and are thereby entitled to production of all required wiretap-related records and transcripts;

2. Serve notice and inventory, or cause persons under its control other than the Office of the Los Angeles County District Attorney, to serve such notice and inventory, in compliance with the prior ruling and orders of the court;

3. Provide production of required wiretap-related, or cause persons under its control other than the Office of the Los Angeles County District Attorney, to provide production, of required wiretap-related records and transcripts to all who have standing to challenge a wiretap order.

4. Set a date for compliance with the orders of this court.

5. Order the reversal of convictions in all cases where a Petitioner was denied, as admitted or established herein, full and complete knowledge of their right to challenge wiretap derivative evidence prior to acceptance of a plea or prior to the introduction of such evidence in any trial, hearing, other proceeding.

6. As to all Petitioners who are presently in custody whose convictions are so reversed, set reasonable bail.

7. Recall all bench warrants issued for Petitioners who were denied, as admitted or established herein, full knowledge of their right to challenge wiretap derivative evidence prior to conviction or the introduction of wiretap derivative evidence at a trial, hearing, or other proceeding.

8. Cause a copy of the notice and inventory to be served and placed in the court file of every wiretap-related case admitted or established herein, including all cases wherein arrest warrants or bench warrants were issued.

9. Unseal and review all wiretap orders and records previously provided this court by Los Angeles County based telephone companies to determine which telephones were ordered intercepted.



WHEREFORE, to ensure that Petitioners future rights are adequately protected, Petitioners additionally request that this court:

10. Set aside, and refrain from making, any order that the Office of the Los Angeles County District Attorney or their agents maintain sole custody and possession of wiretap related records and instead obtain, retain, and maintain duplicate wiretap records which are or should be under the control of this court.

11. Obtain duplicates of documents and database files presently in the custody and control of the Office of the Los Angeles County District Attorney or their agents, which contain relevant information regarding the identities of all persons who have standing to challenge a wiretap which law enforcement authorities have a "routine duty to supply the judge" after the execution of all wiretap orders. (United States v. Donovan (1977) 97 S.Ct. 658, 670.)

12. Appoint persons under its control other than the Office of the Los Angeles County District Attorney, to make a diligent search of the duplicate wiretap records and databases and disclose, to those who claim the source of evidence used in a court proceeding was derived from a wiretap, whether such evidence was in fact derived from a wiretap.

13. Allow the Los Angeles County Public Defender to release and/or make available to the attorneys of all Petitioners who have standing to challenge a wiretap, for the purpose of investigating and litigating wiretap-related actions, all portions of the wiretap-related documents in the possession of the Los Angeles Public Defender;

14. Itself, or through persons under its control other than the Office of the Los Angeles County District Attorney, make a diligent search of the duplicate wiretap records and databases and disclose, to all Petitioners all wiretap orders they have standing to challenge;

15. Accurately inform the California Attorney General and the Administrative Office of the United States Courts of the actual number of wiretaps which have been authorized in Los Angeles County, including the fact that the Atel # 2 wiretap operation reported by the People as being a "single" wiretap order issued on June 20, 1996, actually concealed some 250 separate wiretap orders; and

16. That the court refuse to grant wiretap applications submitted by the Los Angeles County District Attorney and any other prosecuting agency unless and until such prosecuting agency is in full compliance with the notice, inventory, and production requirements of law.

Dated: September 20, 1999

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA



By ______________________________
KATHY QUANT
Deputy Public Defender

By ______________________________
MICHAEL FISCHMAN
Deputy Public Defender

VERIFICATION

STATE OF CALIFORNIA
ss.
COUNTY OF LOS ANGELES



I, the undersigned, declare under penalty of perjury as follows:

I am an attorney at law, duly licensed to practice in all the courts of California, and I am employed as a Deputy Public Defender for the County of Los Angeles.

In this capacity, I represent Petitioners in the foregoing traverse filed in the above-entitled petition for writ of habeas corpus and I make this verification as their attorney acting on their behalf in that the allegations made therein are more within my knowledge than theirs.

I have read the foregoing Affidavit in Support of Violations filed in the above-entitled petition for writ of habeas corpus and know based upon my own personal knowledge and through reading of the exhibits, documents, declarations, and transcripts incorporated therein, that the matters alleged therein are true, and to the extent that any allegation is based on information and belief, I declare that I have been so informed and do so believe such information.

Executed this 20th day of September, 1999, at Los Angeles, California.



_________________________________
KATHY QUANT
Deputy Public Defender

POINTS AND AUTHORITIES

I

THIS COURT HAS THE POWER TO ENFORCE ITS ORDERS

Petitioner has previously briefed the law governing notice and inventory in wiretaps. That briefing is incorporated by reference herein, but will not be repeated. This court has already ordered the District Attorney to comply with the law governing notice. As shown, the District Attorney has failed to comply with this court's order.

This court should enforce its previously issued order. This court has the power to do so: "(a) Every court shall have the power to do all of the following: . . . [¶] (4) To compel obedience to its judgments, orders, and process,  . . . in an action or proceeding pending therein.'' (Code of Civ. Proc. § 128.) "Every judicial officer shall have power: . . . [¶] 2. To compel obedience to his lawful orders as provided in this Code." (Code of Civ. Proc. § 177.)

Case law also provides that a court retains the power to enforce its orders. "A court has inherent power to exercise reasonable control over all proceedings connected with the litigation before it.'' (Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 230; see generally 14 Cal.Jur.3d, Contempt 5, II Jurisdiction to Punish, 5 Inherent Power of Court.)

This court has to power to compel the District Attorney to comply with its order, and to enforce execution of that order:

"Every court has power to compel obedience to its judgments and orders (Code Civ. Proc., §§ 128, subd. 4, 177), and a court of equity retains inherent jurisdiction to oversee and enforce execution of its decrees. (Witkin, Cal. Procedure (2d ed. 1970) Judgments, § 79, p. 3240; see, e.g. Lesser & Son v. Seymour, 35 Cal.2d 494, 500 [218 P.2d 536]; Green Trees Enterprises v. Palm Springs Alpine Estates, 66 Cal.2d 782, 788 [59 Cal.Rptr. 141, 427 P.2d 805]; Vallelunga v. Gomes, 102 Cal.App.2d 374, 382 [227 P.2d 550].)" (Brown v. Brown (1971) 22 Cal.App.3d 82, 84; see also Vallelunga v. Gomes (1951) 102 Cal.App.2d 374, 382.)

As part of this court's inherent power to compel obedience to its orders, this court has the power to itself examine the records at issue herein, or appoint another (perhaps a special master, cf. Pen. Code § 1524) to do so.

II

REVERSAL IS REQUIRED FOR ALL PETITIONERS

UNLAWFULLY DENIED THEIR RIGHTS

Pursuant to the combined authorities of state and federal, statutory and constitutional law, as well as the previous orders of this court, all defendants since 1989 who were either named in a wiretap order, intercepted thereby, resided in a place where communications were intercepted, or had criminal investigations resulting therefrom, were entitled to be notified of that fact and/or provided copies of the relevant wiretap applications, orders, and transcripts. (Pen. Code § 629.68, 629.70, 1054(e), 1054.1(b), 1538.5; 18 U.S.C. §§ 2510, 2517, 2518, U.S.Const., 4th Amend.) The duty to disclose and produce wiretap-related records is not dependant on the prosecutor's use or intended use of those statements, but it is premised on those statutory and constitutional rights and obligations, and as such are "continuing obligations" owed to each Petitioner until such time as they are fulfilled. (United States v. Lanoue (1995) 71 F.3d 966; 977.)

The purpose of the notice requirements in the wiretap acts is "to afford all defendants an opportunity to make a pretrial motion to suppress." (S.Rep. No. 1097, 90th Cong., 2d Sess. 105-06, reprinted in 1968 U.S. Code Cong. & Ad.News 2112, 2195; United States v. Melendez-Carrion (2nd Cir. 1986) 790 F.2d 984, 994.) The constitutional right to move to a full and fair hearing to suppress illegally obtained evidence has long been statutorily codified in California and embodied in the procedures set forth in Penal Code section 1538.5. That right is one which cannot be arbitrarily and unilaterally denied by the People. It is a right guaranteed to all. (People v. Filson (1994) 22 Cal.App.4th 1841.)(30) And while a defendant may waive the right to make such a motion, such waiver is only valid if it is knowingly and intelligently made.

"The valid waiver of a right presupposes an actual and demonstrable knowledge of the very right being waived. It is the intelligent relinquishment of a known right after knowledge of the facts. The burden is on the party claiming the existence of the waiver to prove it by evidence that does not leave the matter to speculation, and doubtful cases will be resolved against a waiver." (People v. Russo (1994) 30 Cal.App.4th 1001, 36 Cal.Rptr.2d 218, 221; People v. Vargas (1993) 13 Cal.App.4th 1653, 1657-1663, internal quotations and brackets omitted, emphasis added.)

Therefore, to the extent the People attempt to assert that Petitioners waived their rights to move to suppress wiretap evidence by either the failure to make such a motion or entering a plea of guilty, it is incumbent on them to prove to this court that any such waiver was made with full knowledge of the existence of the wiretap.

Any claim that Petitioners suffered no prejudice warranting reversal because such taped statements may not have "been introduced into evidence" is equally without merit. The mere asking of questions based on statements overheard through a wiretap is itself considered a "disclosure" which was "derived" from the wiretap and as such is prohibited absent production. (Gelbard v. United States (1972) 92 S.Ct. 2357.) In fact, the mere act of asking such an "improper question alone can require a mistrial," especially where, as here, prejudice necessarily occurred. (United States v. Lanoue (1995) 71 F.3d 966; 977.) As in Lanoue, disclosure of the taped communications was not simply delayed, but denied altogether until after it had already been used by the government, thereby completely denying the defense any use of the information. As such, "a mistrial [is] the only appropriate remedy. (United States v. Lanoue (1995) 71 F.3d 966; 977-979.) As in Lanou, prejudice here abounds because the failure to disclose denied Petitioners the opportunity to effectively prepare for trial, investigate the circumstances surrounding the arrest, design an intelligent trial strategy, refresh their recollection, impeach officers/witnesses, make determinations regarding the credibility, and "mitigate culpability." (Ibid.) Concealment not only denied Petitioners' the right to have all such derivative evidence excluded at a probable cause hearing, bail hearing, preliminary hearing, suppression hearing, 995 hearing, trial, or sentencing hearing, it denied them the right to themselves employ the material. (Ibid.)/(31) Moreover, it denied to all affected the right to counsel by depriving their attorneys the ability to competently render advice on the strength of evidence, the available defenses, the desirability of plea bargaining, or an informed decision regarding whether or not to waive certain rights or take the matter to trial. (Ibid.)/(32)

While clearly the People's actions in failing to disclose were intentional, that fact is, for the purposes of the relief sought herein, immaterial. The statutory and constitutional rights which have been wrongfully denied Petitioners are still owed. Their judgments must be reversed until such time as they are afforded their rights under the law.

Dated: September 20, 1999

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER

OF LOS ANGELES COUNTY, CALIFORNIA

Kathy Quant,

Michael Fischman,

Deputy Public Defenders



By ______________________________

KATHY QUANT

Deputy Public Defender

By ______________________________

MICHAEL FISCHMAN

Deputy Public Defender

1. See Traverse, pp. 21-22.

2. Referring to Roberto Esparza (BA149554), Isabel Morante (BA096050), and Rafael Flores, respectively.

3. Duane Herman Bowen, BA 155309. It is surprising that the People's diligent search failed to locate this case number. A simple search for the name in their own database or the courts' would have provided the answer. Moreover, the interviews with their Deputies, as alleged in the return, should have revealed the case had been on this court's calendar on August 28, 1998, at which time the People filed with this court a written denial of the existence of a wiretap which Exhibit D proves in fact existed. (Exhibit D; see also below discussion in section III(A).)

4. Israel Hidalgo (6LC03008), Jose Aceves Venegas (6EL10762), Dora Leticia Perez (7CM10333), Rafael Dominguez (8CM03550.), Manuel Beltran (7EL10472 01), Samuel Garcia Moreno (94M10092).

5. Those cases alleged in the Traverse to be "still undisclosed" but denied by the People under penalty of perjury were as follows: Alberto Mac Clean BA149378; Adolpho Lopez A06761757; Octaviano Uicab BA154809, Desiree Arnold BA149378; Paul Allen Johnson BA149378; Duran Mullen BA149378; Noel Benitez BA149051; Asmed Escareno BA156160; and Sylvia Elisa Quintero BA151807.

6. It should be understood that, at the time the People made that sworn denial, the substance of the information obtained in the Atel Wiretap Operation had never been disclosed. A cursory review of those logs, which were subsequently ordered disclosed, unquestionably confirmed the existence of additional wiretap-related cases.

7. People v. Alberto Mac Clean, Case Number BA149378.

8. A copy of the People's sworn affidavit denying that Mac Clean's case was related to a wiretap is attached hereto as Exhibit E. A summary of the evidence, as well as copies of the logs, arrest reports, and records directly linking the wiretap to Petitioner's arrest, is attached hereto as Exhibit F and entitled "MacClean." Both exhibits are incorporated by reference as if fully set forth herein.

9. The logs from only forty-two telephones wiretapped have been reviewed. To date, this office has discovered evidence establishing that the Los Angeles County District Attorney has been involved in the wiretaps of at least 537 telephones.

10. As a result of litigation in People v. Salcido, Case No. BA159367, Judge Green in Department 123 ordered disclosure of wiretap documents pertaining to the Atel Wiretap Operation. However, the Los Angeles County District Attorney thereafter obtained an order restricting the Public Defender's Office from using or disclosing those documents without the approval of the court. Petitioner thereafter sought and obtained, ex parte, in camera relief. The heretofore previously sealed exemption order allowed this Office to use and disclose to this court, under seal, any and all evidence necessary to establish that the People are in violation of the orders of this court. Attached hereto as Exhibit G, and incorporated herein, is a copy of that order permitting submission of such documents in support of this affidavit to this court under seal.
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11. Attorney for co-defendant Gastelum in the Gaxiola case.

12. No court records are available to determine whether or not the People have subsequently obtained judicial relief from the notice requirements. See Exhibit K, Declaration of Susanne Blossom regarding the impossibility of obtaining copies of any such orders delaying notice which may or may not have been made by the People.

13. 179 cases were suspected of being related to a wiretap. (Exhibit H)

14. Over 700 names and addresses were obtained from a review of wiretap records for approximately seventy-five telephones. (Exhibit L.)

15. In addition to defendants in criminal cases, random inquiries of approximately 30 individuals and businesses listed in Exhibit L revealed that at least 2/3 had never received notice.

16. District Attorney Gil Garcetti's press release dated June 1, 1998.

17. To the extent that the allegations establishing these violations are supported by those documents, they are hereby submitted to this court under seal in Exhibit F and incorporated by reference as if fully set forth herein.

18. In light of the information now known and previously provided this court regarding the number of telephones wiretapped yet considered "one wiretap order," and a telephone company's stated policy to continue wiretaps on hard line telephones so long as the bill is paid, this and all other wiretap orders for public pay phones are suspected as having tainted countless prosecutions.

19. Exhibit J is a chart which depicts both the duration of wiretap operations in Los Angeles County as well as admitted and suspected state wiretap-related prosecutions which occurred while those operations were ongoing, to assist the court in appropriately determining standing.

20. Attached hereto as Exhibit I are copies of the requests made by petitioners and the People's response thereto alleging they were in full compliance.

21. Exhibit M lists of all known telephones wiretapped in the Atel Wiretap Operation. Those telephones for which logs were at least partial logs produced are marked with an asterisk (*). Those telephone numbers for which no corresponding order could be located are separately listed in the last page of the Exhibit. The People evaded full enforcement of the order by offering Petitioner Salcido the equivalent of a time-served plea bargain.

22. See Traverse p. 11: "If one application results in two orders authorizing interception of communication, then two reports must be filed with the Administrative Office. (Reporting Procedure of US Courts, p. 3.)"

23. State and federal wiretap reports from 1989 to 1997 which were introduced into evidence in Exhibits A and C of the Supplemental Petition, are incorporated herein by reference as if fully set forth herein. The state and federal wiretap reports for 1998 are attached hereto as Exhibits O and P and incorporated by reference as if fully set forth herein.

24. The report, attached to the Traverse as Exhibit K, and attached herein in Exhibit F as well, is incorporated by reference.

25. Previously introduced in this case.

26. Traverse pp. 39-43, and Exhibit L, which are incorporated herein by reference.

27. The scope of the wire-monitor logs for the Atel Business lines which are marked "evidentiary" demonstrate clearly the scope of the government's failure to "minimize" (Pen. Code § 629.58) and the reason for such failure. The attached S.I.D. printouts show how all information from those intercepted conversations is entered into the database and easily retrieved with a full synopsis of the conversation or only as a list of telephones intercepted. A sampling of the logs and database reports are attached hereto as Exhibit R and incorporated herein by reference as if fully set forth. A comparison of the number of interceptions to the number of "incriminating" interceptions, as revealed in the previously admitted state and federal wiretap reports, establishes that there is no effort by law enforcement to limit the wiretap to just those who are suspected. The S.I.D. printout shows how all conversations, regardless of their non-incriminating content, are entered into the database. Those previously admitted wiretap reports are incorporated by reference as if fully set forth herein. The state and federal wiretap reports for 1998 are attached hereto as Exhibits O and P and incorporated herein by reference.

28. These pleadings request only "reversal" of judgments so as to now afford to Petitioners their right to fully and fairly litigate a motion to suppress which had previously been wrongfully denied. (United States v. Apple (4th Cir. 1990) 915 F.2d 899.) Neither suppression of evidence, nor the dismissal of the action, are herein requested as relief. Moreover, as to those petitioners who have pled guilty, their right to decide whether or not to withdraw their plea will not even arise unless a court determines, after full and fair litigation of the suppression motion, that there in fact exists evidence which must be suppressed. (People v. Le Blanc (1997) 60 Cal.App.4th 157, 149; People v. Hokit (1998) 66 Cal.App.4th 1013, 1020.)

29. While the evidence in many cases also establishes that the Petitioners' prosecutions were "tainted" by such evidence, that fact is irrelevant to this request.

30. That right is even retained after a plea of guilty is entered. (Pen Code. 1538.5(m), People v. Hobbs (1994) 7 Cal.4th 948, 956.)

31. See also States v. Salerno (2nd Cir.1986) 794 F.2d 64, 69; United States v. Farese (5th Cir. 1980) 611 F.2d 67, 71; and Dunlap v. Superior Court (1991) 169 Ariz. 82, regarding the right to wiretap disclosure prior to its use or introduction in such hearings.)

32. See also People v. Kasim (1997) 66 Cal.Rptr.2d 494, 56 Cal.App.4th 1360, and Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, reversal required for even inadvertent failure to provide favorable evidence; Thompson v. Superior Court (1977) 53 Cal.App.4th 480, 486, "statements" written or electronically recorded must be produced; and People v. Jackson (1996) 41 Cal.App.4th 1232, 49 Cal.Rptr.2d 114, 123, holding the People's intention regarding the introduction of the such statements is immaterial because 1054.1(b) "omits 'relevance' as a disclosure condition."