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

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

INTRODUCTION, OBJECTION, AND OVERVIEW

This reply is not intended to be an exhaustive point by point disputation of the defenses put forward by the District Attorney in their responsive papers. It serves instead as both a formal objection to the court's consideration of the District Attorney's claims and seeks to point out how the contentions asserted are evidence of yet other violations of the orders of this court.

I
THE DISTRICT ATTORNEY REMAINS
IN VIOLATION OF THIS COURT'S ORDERS

In summary, the People's response admits the wiretap relationship of another nine prosecutions, some of which had previously been falsely denied under oath, admit they failed to investigate another three prosecutions, simultaneously admit and deny the wiretap-relationship of two prosecutions, and adamantly deny any relationship of a wiretap in 37 prosecutions, including Duane Bowen.

Confronted with clear proof of their deceit to this court not once, but in two separate actions, the People admit that a telephone subscribed to the residence of Petitioners Octaviano Uicab and Reynaldo Garcia had been continuously wiretapped for two months prior to their arrests along with Petitioners Duane Bowen and Eleazar Flores. Yet the People continue to disavow any relationship between their wiretap and those arrests and instead incredulously allege it was a mere coincidence that LAPD narcotics Division Detectives arrested these defendants while others in that division tapped those defendants telephone lines. It must then also be a coincidence that the relevant logs for that wiretapped telephone were omitted from the Atel discovery provided to petitioners in violation of Judge Green's order/⁽¹⁾ that such logs be produced in their entirety and thereby coincidentally allowed the People to confidently criticize the evidence introduced against them based on the fact it "does not include any wire monitor logs demonstrating how this case is derived from any wiretaps." (Response, Exhibit 2, Case No BA155309.)

The People's unilateral determination that LAPD Narcotics Division Detectives could maintain such a wiretap for two months but not in any utilize it in their investigation is not only preposterous but itself a violation of this court's order which specifically prohibited the People from "simply determining on their own that it (the wiretap law) doesn't apply" in any given case or that evidence obtained was not "derived" therefrom.

Petitioners urge this court to look closely at the People's pleading for not only what is said, but for what is not said. Petitioners point out that the People do not deny the fact that the 21 telephones listed by Petitioners were wiretapped prior to judicial authorization or that 15 telephones were wiretapped without any judicial authorization whatsoever. They do not deny that they reported the wiretapping of 250 separate telephones as a single order./⁽²⁾ The People do not deny that persons specified in Petitioners' pleading were entitled to notice and inventory but never served, never deny that the identities of such persons were in fact "known," never reveal upon whom such notice and inventory was served, how, where, or when such service made, or whether service resulted in actual notice to all such parties.

Because the People have not complied with this court's order to fulfill their continuing duty to provide production of wiretap-related documents the People evade, sidestep, or completely misrepresent this issue entirely. They omit mention of this essential issue in their summary of Petitioners allegations. (Response p.2:11-16) Under the guise of a paraphrase, the people rewrite this court's order to their benefit and casually add, in parenthesis, production was ordered only as to those defendants who were "being prosecuted." This statement is in direct contradiction to this court's order that the People to produce wiretap-related documents Penal Code section 629.70 "in each case in Los Angeles County since the Wire Tap Law has been passed . . . if they have not already done so." (Response, p. 2:1-3; Order, p. 1.) The People allege the "Code section places no duty on them to investigate" but completely omit the fact that such duty has been imposed on the prosecution by United States Supreme Court mandate/⁽³⁾ as well as the direct order of this Court which required the People to "search their records" to locate all such persons entitled to notice and production.

The People do not explain why they continue to refuse to simply provide Petitioners with signed copies of all original wiretap applications, affidavits, orders, and transcripts. Nor do they provide any legal support for their assertion that their prior unlawful failure to fulfill the statutory and constitutional duty to produce such documents law has somehow be relinquished by obtaining convictions from unsuspecting defendants who have been completely denied their constitutional and statutory rights to litigate the legality of their wiretap operations. To the contrary, that duty is not only considered to be one which continues unless and until fulfilled, but one which was this court expressly mandated to be fulfilled in its November 18, 1998, order to search their records back to 1989 and comply with both Penal Code sections 629.68 and 629.70.

There is no explanation why notice and inventories were sealed when these wiretap operations have long since concluded and been made public record. In fact, other than to argue that these otherwise public documents somehow come within the ambit of Penal Code section 629.66, which actually refers to the sealing of applications and orders which authorize interception, there no reason why any such "application" to serve notice and inventory had to be made. The wiretap law simply requires that the court "cause notice and inventory to be served," regardless of whether or not an application is made.

The People attempt to justify their unlawful conduct by claiming their wiretap operations resulted in seizures of narcotics, contraband, and narcotics proceeds. However, a closer review of the People's own records disclose that the money, and not necessarily the contraband, were of primary importance in these wiretap operations. Far to often law enforcement officers would initiate pursuit of those suspects they knew from conversations overheard were in possession of the currency and would attempt to retrieve contraband only after the funds were securely obtained. Moreover, when and if asset forfeitures were sought, such proceedings were instituted in federal court where the police and District Attorney's Office are provided a far greater share of the money than in state court where the funds are allocated for community use. However, in some cases, it not even clear where the money seized as a result of their wiretapping has gone./ ⁽⁴⁾ (Exhibit A.) Moreover, any funds seized were substantially depleted by the District Attorney's wiretap expenditures. (Exhibit B.)

It is clear from the fact that the People still continue so fervently to resist compliance with the production requirements of the law, and seek in desperation to avoid any public review of their wiretap operations by requesting a limited judicial in-camera inspection, that their only prospect for self-preservation is the hope of evading thorough scrutiny of their actions in the adversary setting. However, all hopes of using this court to obtain a temporary safe harbor to further delay compliance was lost on January 18, 1999, when the People knowingly and intelligently failed to pursue judicial review or relief from the orders of this court.

II
PETITIONERS CONTINUE TO BE ENTITLED TO ENFORCEMENT OF
THIS COURT'S PREVIOUS ORDERS AND REQUEST THAT OF NOVEMBER 1, 1999 BE SET FOR COMPLIANCE WITH THOSE ORDERS

The People's failure to adequately submit legally admissible evidence to refute Petitioners evidence, denies them the right to have assertions considered. However, if and when the District Attorney introduces any such rebuttal evidence, such evidence would mandates, at minimum, an full and fair evidentiary hearing wherein Petitioners are afforded the right to controvert that evidence and test the credibility of those allegations through cross-examination.

However, regardless of whether or not the People are able to refute the evidence Petitioners have introduced against them, Petitioners continue to be entitled to enforcement of this court's previous order and hereby request that a date for production of all wiretap-related documents and transcripts be set for November 1, 1999. This court should, therefore, accept the People's offer to produce such records and provide them to Petitioners on that date. Moreover, the People having themselves implicitly waived their right to object to the distribution of the Atel wire monitor logs by publishing in their Response the contents of the wire monitor logs they thereby placed said documents in the public realm and have in a de facto fashion obliterated any prior protective orders in respect to said documents.

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. The People do not deny that they disobeyed the order of Judge Green by failing to produce the entirety of the Atel wire monitor logs and allege instead that if such discovery concerns existed they would have been litigate in the Salcido criminal action. The further claim petitioners failed to inform the court that Petitioner Salido plead guilty. However, explained in footnote 18 of the Affiidavit of Violations, "The People evaded full enforcement of the order by offering Petitioner Salcido the equivalent of a time-served plea bargain."

2. The People cite to that portion of the instructions which allow the court to authorize in one order separate wiretap devices installed as a result several different telephone extensions all belonging to a single suspect

3. United States v. Donovan (1977) 429 U.S. 413, 439, fn. 26, 97 S.Ct. 658, 50 L.Ed.2d 652.

4. Petitioner's attorney has attempted, unsuccessfully, to locate the whereabouts of $1,237,740 which was surreptitiously taken from a from a car on September 24, 1996, as a result of information learned by monitoring an unauthorized telephone. LAPD claimed that forfeiture division of the District Attorney's office obtained all wiretap seizures, but that division denies any such litigation. Nor do the records of federal court forfeiture actions show any such legal action. A final search by the US Customs Office was similarly unfruitful.