The opinion of the court was delivered by: PATEL
On July 26, 1990, defendant Steven M. Marshank and two co-defendants were indicted and charged with federal statutory violations related to their alleged membership in an organization which imported large amounts of hashish and marijuana into the United States.
Marshank brings this motion to dismiss the indictment against him, alleging that the United States government ("government") violated his Sixth Amendment right to counsel and Fifth Amendment right to due process. Specifically, Marshank alleges that throughout the investigation of his case, his former attorney, Ronald Minkin, had an ongoing relationship with government agents from various federal law enforcement agencies and the Assistant United States Attorneys ("AUSA") assigned to his case. Marshank alleges that these agents and AUSAs, with full knowledge that Minkin was defendant's attorney, encouraged Minkin to actively aid the government's investigation of the defendant. Marshank further maintains that the government exploited the information they received from Minkin to arrest and prosecute him. This complicity, Marshank contends, occurred throughout the course of the investigation which led to a 1987 indictment of defendant, subsequently dismissed by the government, and continued during the investigation leading to the instant indictment.
After reviewing the arguments and submissions of the parties, the court found that further evidence was necessary in order to rule on the motion to dismiss and held an evidentiary hearing pursuant to Federal Rule of Evidence 611. The following witnesses testified at the hearing: 1) Ronald Minkin, the defendant's former attorney; 2) Peter Robinson, the AUSA assigned to defendant's case in 1987; 3) Lee C. Rasmussin, an F.B.I. agent who worked in the narcotics unit of the Organized Crime Division in Los Angeles from 1982 through January 1990;
4) Edward Ames, a U.S. Customs agent in San Francisco; 5) Seth R. Booky, a former associate of Marshank who was indicted for drug trafficking in 1987;
6) Robert Heng, a special agent with the Drug Enforcement Administration; and 7) Wayne N. Yamashita, a special agent with the U.S. Customs Service in San Francisco.
Taken together, the hearing testimony, the discovery material and the parties' moving papers tell the shocking tale of a criminal defense attorney who was oblivious to the professional norms of ethical behavior and a cast of overzealous government agents and prosecutors who facilitated the attorney's unethical conduct in an attempt to catch "a big fish." Most of the facts are substantially undisputed; some of them are in sharp dispute. The following narrative embodies the court's findings of fact.
The story began in 1986 when Ronald Minkin, a criminal defense attorney, approached AUSA James Walsh in Los Angeles on behalf of two clients, Gary Crawford and Gary Ohlgart. Although Crawford and Ohlgart had never been indicted and were not at that time under investigation, they wished to dissociate themselves from the drug business by providing information to the government in exchange for immunity from prosecution, complete anonymity and the promise that they would never have to testify in court. RT at 1-24. Minkin arranged a deal under these terms, on behalf of Crawford and Ohlgart, with AUSA James Walsh. Def. Ex. A.
In August 1986 several agents, including F.B.I. agent Lee Rasmussin, debriefed Crawford and Ohlgart in Los Angeles. RT at 2-399. Minkin was present at this meeting. RT at 2-399-400. Crawford, Ohlgart and Minkin provided information about suspects in a major marijuana and hashish smuggling operation. RT at 2-402. Those suspects included several of Minkin's former and present clients, among them Stephen Marshank, Seth Booky, and Robert Wehe. Minkin's Los Angeles law firm had represented Marshank in a divorce proceeding in 1982 and 1983, Def. Ex. Z, and Minkin had personally represented Seth Booky on a drug-related charge in Hawaii in 1983. RT at 3-660. Both Marshank and Booky had ongoing attorney-client relationships with Minkin. Minkin, Crawford and Ohlgart made a diagram which sketched out the relationships among the various individuals they named. The defendant's name appeared on the chart, which came to be known as "the matrix." Def. Ex. 1.
On February 5 and 6, 1987, another meeting was held in Los Angeles. This meeting was attended by members of the Organized Crime Drug Enforcement Task Force ("OCDETF"), DEA agents, United States Customs agents from San Francisco and Los Angeles and three Assistant United States Attorneys. A task force was formed to develop a plan of action which would lead to the indictment of Booky, and then with Booky's cooperation, to the indictment of Marshank. The task force included various agents from Los Angeles and San Francisco, including Ames and Rasmussin. Def. Ex. P; RT at 2-416. It was determined at this meeting that because Crawford and Ohlgart had been promised that they would not have to testify, an "inside individual" would be needed for the government to pursue the plan. RT at 2-404-05.
The agents initially decided to target Robert Wehe, who was already the subject of a sealed indictment, for the "inside individual" role. RT at 2-405. Ron Minkin had represented Wehe in the past, id., and Wehe was chosen because Minkin told the agents that he [Minkin] could "bring him in. " RT at 2-412. Minkin contacted Wehe and mediated an agreement between Wehe and the government in which Wehe agreed to surrender and cooperate with the government. Def. Ex. D at 2. After his arrest while represented by Minkin, Wehe provided information about the defendant to the government. RT at 3-578.
Minkin informed the government agents that he had represented Booky in Hawaii in 1983 and that Booky would be likely to cooperate. RT at 2-419-21. The plan to elicit Booky's cooperation in exchange for a plea agreement, RT at 2-421-22, changed in May 1987 when Minkin called Agent Ames and informed him that Booky was involved in a large marijuana deal. RT at 3-562. Ames testified that at the time he received the telephone call from Minkin he was aware that Minkin had represented Booky in the past. RT at 3-562.
Based upon Minkin's information, AUSA Robinson authorized the arrest of Booky. On Memorial Day 1987, Agent Ames and the Sonoma County Sheriff's Department arrested nine individuals, including Booky, for the sale of one thousand five hundred pounds of marijuana. Ames Decl. at 6. Agent Ames never informed Booky that Minkin was the person who provided the government with the information leading to his arrest. RT at 3-565.
Although there are some inconsistencies in the testimony of the various witnesses, it is clear that prior to Booky's arrest the government agents and the AUSAs on the case were aware that Minkin had represented Booky in the past and would probably represent him after he was arrested. AUSA Robinson, for example, stated that he "understood from Ames that Minkin had represented Seth Booky in the past and would likely initially represent Booky" after his arrest. Robinson Decl. para. 8. Booky himself had considered Minkin to be his attorney since 1983. RT at 3-686.
The government also knew that Minkin had provided the information that led to Booky's arrest either directly or by relaying information from Crawford and Ohlgart. RT at 3-586. While AUSA Robinson denies that he knew at the time that the information leading to the arrest of Booky had been supplied by Booky's own lawyer, he concedes that he was aware that incriminating information concerning Booky had come from Crawford and Ohlgart, whom he knew were represented by Minkin. RT at 2-277. Robinson admits that he was aware that this situation represented a serious conflict of interest. RT at 2-278-79. Agent Ames testified that he told Robinson at the time of Booky's arrest that he [Ames] had received the information leading to Booky's arrest directly from Minkin. RT at 3-586.
Robinson never raised the issue of conflict of interest with Minkin or Booky during the plea negotiations although he was aware that Minkin's clients, Crawford and Ohlgart, acting under a cooperation agreement negotiated by Minkin, had provided the information leading to Booky's arrest. RT at 2-280. Nor did Robinson ever raise the issue of conflict of interest with the court. RT at 2-285.
Subsequently, Booky entered into a representation agreement with Minkin which guaranteed Minkin one third of all sums the government paid to Booky as a result of his cooperation. This included any monies Booky might receive for information leading to forfeiture of property.
Def. Ex. H. Although Minkin continued to represent Booky, Booky's attorney of record was Vincent Oliver, who rented space in Minkin's law office. Oliver acted as a "front attorney." RT at 3-577. Both Robinson and Ames were aware that Minkin actually represented Booky. RT at 2-284, 3-577. The only court appearance Minkin made for Booky was at his sentencing on January 29, 1988. RT at 2-285.
During the time between Booky's arrest on May 31, 1987 and Marshank's indictment on September 16, 1987, the task force investigation centered on Marshank and Daniel Hartog, who was suspected of running a large scale marijuana and hashish smuggling operation. With Minkin's assistance, the government used Booky to investigate both Hartog and Marshank. Booky was "wired" to record conversations with Marshank and engaged in other "active work" on the government's behalf. RT at 3-530. The government used Booky in this capacity, knowing full well that Booky's lawyer, Minkin, represented: 1) Crawford and Ohlgart, who had provided incriminating information about Booky and Marshank; 2) Bobby Wehe, who had provided incriminating information about Booky and Marshank; and 3) Booky himself, who was actively obtaining and providing incriminating information about Marshank. RT at 2-269, 3-530. In addition, Minkin told the government that he was likely to represent Marshank and that Marshank was likely to cooperate with the government. RT at 2-269.
Booky eventually entered the Federal Witness Protection Program. Prior to that time the government's only access to Booky was through Minkin. Booky was hidden by Minkin and only Minkin knew his location. RT at 3-758. The government thus benefitted from Minkin's role as a conduit between Booky and the government agents and AUSAs. RT at 3-759.
After Booky's arrest, the government agents believed that in order for Booky to remain a viable active informant, he would have to convince his confederates that he had not "rolled over" and was still fighting the prosecution of his case. Minkin, Booky and Agent Ames agreed that Booky should act as if he were not cooperating with the government and as if Minkin were defending him. RT at 3-569. During the summer of 1987 Booky began to put pressure on his confederates, including Marshank, to pay for his supposed defense and to provide him with living expenses. See Heng Decl., Exs. B, C, E. Marshank paid ten thousand dollars to Minkin for Booky's defense and expenses. RT at 3-596. Booky ostensibly requested the payment to convince his confederates that he had not become a government informant. RT at 3-576.
The government was aware that Booky was pressuring Marshank for money to pay Minkin's fees. Booky had several phone conversations with Marshank in which he indicated that he needed money to pay Minkin for his defense. These phone conversations were recorded by the government. Heng Decl., Exs. C at 5-8, Ex. E. Agent Ames testified that he told Robinson about the payment of money by Marshank to Minkin, RT at 3-587-88, 3-598, and that Robinson must have been aware of the payments because in the summer of 1987 he was the AUSA on the case and was aware of the contents of the taped Booky phone conversations. RT at 3-528.
The government, however, allowed both Booky and Minkin to keep the money. None of the money paid to Booky and Minkin was ever seized. RT at 3-596-98. The government subsequently used the payment of Minkin's fees as evidence against Marshank in the first grand jury proceeding against him. RT 3-673.
During the time between Booky's arrest and the defendant's indictment, Booky received over twenty thousand dollars from various sources. RT at 3-645. Minkin received ten thousand dollars from Marshank for Booky's ostensible defense. Grand Jury Proceedings, Testimony of Ronald Minkin, June 28, 1990, at 27-28. Minkin testified that he gave half of that sum to Oliver and returned the other half to Booky for living expenses. RT at 1-186.
During the 1987 pre-indictment investigation of Marshank, then-AUSA Robinson knew that Minkin was representing Marshank. RT at 2-269, 2-323-24. Robinson also knew that Minkin had told Agent Ames that Marshank would probably cooperate with the government because Minkin had been Marshank's lawyer previously. RT at 2-328, 2-350. In addition, Robinson was aware that the government would use information from Minkin's other clients to indict Marshank. RT at 2-333. Minkin's role, assigned to him by the government, was to encourage and bring about Marshank's cooperation. RT at 2-324.
After the decision was made to indict and arrest Marshank, the grand jury heard testimony from several witnesses. All of the witnesses who provided testimony against Marshank were clients of Ron Minkin. RT at 2-272. The grand jury witnesses were Seth Booky, Robert Wehe, and a government agent who summarized a statement taken from David Vandrell, another of Minkin's clients. RT at 2-270, 2-352.
Although the government was ready to arrest Marshank following his indictment on September 16, 1987, his whereabouts were unknown. RT at 3-535. Agent Ames called Agent Rasmussin, who gave Minkin's telephone number to Ames. RT at 2-496. Ames then phoned Minkin. Minkin made inquiries to determine where Marshank was, RT 1-61-62, informed Ames that the defendant was in Florida, and provided the agent with Marshank's exact location. RT at 3-535.
Acting upon the information provided by Minkin, Ames flew to Florida, found Marshank and arrested him on October 2, 1987. RT at 3-536. By the time of the defendant's arrest, Agent Ames and AUSA Robinson knew that Minkin was representing Booky, RT at 3-527, and that Booky and Minkin had provided the government with the information leading to Marshank's arrest. RT at 3-528.
Agent Ames stated that after he arrested Marshank he read the defendant his Miranda rights and then suggested that he call legal counsel. Ames provided Marshank with a telephone to make the call. Ames Decl. 9:16-21; RT at 3-536-38. Agent Yamashita testified that it is highly unusual for a government agent to suggest that a suspect contact legal counsel upon making an arrest and that the standard procedure for Customs agents is to avoid any mention of attorneys after suspects are given the Miranda warning so as not to damage the possibility of obtaining an interview with the suspect. RT at 3-723-24. This, obviously, was not a concern of Agent Ames in this case. As expected, Marshank called Minkin. RT at 3-537.
Minkin flew to Florida to represent Marshank. RT at 3-538; Def. Ex. L. Agent Rasmussin testified that both Ames and Minkin called him either from Florida or immediately before they went to Florida; thus, Minkin conferred with the government before meeting with his client. RT at 2-441. By this time Rasmussin was aware that Minkin represented Booky, RT at 2-444, and that Minkin was going to Florida on business involving Marshank. Id.
In Florida, Agent Ames met first with Minkin and then with Minkin and Marshank. RT at 3-530-31. Ames never informed Marshank that Minkin had provided the government with information concerning Marshank's whereabouts or that Minkin and his clients had supplied the government with the information that led to Marshank's indictment and arrest. RT at 3-553-54. The meeting between Ames, Minkin and Marshank was off the record for the most part. Minkin, however, did recommend to the defendant that he disclose on the record the existence of two false passports. RT at 3-532. Minkin told Ames that he would put the passport discussion on the record as a "sign of good faith." Ames Decl. at 11. At a bail hearing the following week, Marshank's admission was used by the government to argue for detention of the defendant without bail. RT at 3-532. Ames had no knowledge of the passports before learning about them from Minkin. RT at 3-590.
Agent Ames had concerns about Minkin's ability to represent Marshank in light of their potential conflict of interest. RT at 3-524-25. The agent testified that before interviewing Marshank he called Robinson from Florida and expressed his concern about Minkin acting as the defendant's lawyer. RT at 2-526. Ames testified that Robinson told him to proceed with the arrest and to bring Marshank back to San Francisco. Robinson said they would "sort it out later," RT at 3-526-27, and did not instruct Ames to raise the issue of conflict of interest with the court, the U.S. Attorney in Florida, or with Minkin himself.
Ames never informed Marshank or the court of the potential conflict of interest. RT at 3-554.
Contrary to Minkin's predictions, Marshank refused to cooperate with the government following his arrest. After Marshank's arrest Minkin spoke with DEA Agent Heng. Agent Heng testified that Minkin was disappointed that his client had refused to cooperate. RT at 3-823. Minkin complained that his client was "crying hysterically" and that, rather than taking advantage of Marshank's state, Agent Ames had "dropped the ball" by putting the defendant back in jail. Def. Ex. Y; RT at 3-796, 3-823. In addition, Minkin lamented to Robinson that Agent Ames "blew it" because the agent was not "heavy enough" with Marshank. RT at 2-358-59.
Agent Ames flew with Marshank from Florida to California. RT at 3-557. During the trip Ames had conversations with Marshank about substantive matters related to Marshank's case, even though the agent was aware that Marshank was represented by counsel. RT at 3-557-60. After Marshank was returned to San Francisco, he dismissed Minkin and retained his current counsel.
Marshank's ex-wife, Jane Wechsler, stated that she called Minkin on October 6, 1987, after learning of Marshank's arrest, to see if she could be of any help. In her sworn declaration, Wechsler recounted that Minkin claimed "he was the only person who could handle Steven's case, that if Steven knew what was best he would keep Minkin as his lawyer and would cooperate with the government 'one hundred percent.'" Wechsler Aff. para. 6. Minkin also allegedly told Wechsler that Marshank would have to pay Minkin one million dollars and that federal agents would see to it that Marshank was able to obtain money from foreign bank accounts. Wechsler Aff. paras. 8,9. In addition, Wechsler contends that Minkin suggested that it would be helpful for government agents to arrest Julie Aldwell, a friend of Marshank's with whom he was purportedly involved in drug smuggling. Wechsler Aff. para. 18. Minkin allegedly told Wechsler that Aldwell's arrest would help Marshank "come to his senses," since Aldwell would be forced to inform on Marshank in order to save herself and Marshank would then "feel the noose tightening around his neck." Id.