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United States v. Young

United States District Court, N.D. California

March 9, 2017



          William H. Orrick United States District Judge


         The government's use of a confidential informant to engage in a day's long recorded conversation with defendant Jaquain Young while he was in a holding cell in federal court at 450 Golden Gate Avenue, San Francisco, California has precipitated significant motion practice over the last eighteen months to insure that the government is not using and will not utilize any wrongfully obtained information. See Dkt. Nos. 463, 895 and 1073. This Order denies Young's motion under Kastigar v. United States, 406 U.S. 441 (1972), that the government impermissibly learned his privileged trial strategy as a result of the conversation.

         To review, the government was aware of the potential for invading the attorney-client privilege as a result of using the informant and employed a taint procedure to redact parts of the conversation that were arguably inadmissible because Young's right to counsel under the Sixth Amendment had attached for the then-pending charges. The prosecutors have consistently represented in open court that they have not listened to or had access to the tainted communication. I required the government to provide Young with written discovery concerning its procedures and notes regarding this matter. Assistant United States Attorney Hasib, the taint prosecutor, filed a detailed declaration describing his work and method of maintaining the confidentiality of the transcript of the conversation. Dkt. No. 1081. I further ordered a special hearing to elicit testimony from the two case agents who set up and oversaw the conversation and maintained the recording after it was concluded. Dkt. No. 1103.

         After reviewing the evidence and testimony and considering the arguments of counsel, I find that the members of the prosecution team, including the case agents, have been successfully insulated from Young's privileged trial strategy information. The prosecution team cannot use information that it has never learned, and so it has met its burden to show that there has been no prejudice under United States v. Danielson, 325 F.3d 1054 (9th Cir. 2003). Consequently, no additional hearings on this matter are necessary, and Young's Kastigar motion is DENIED.


         On April 4, 2013, Young was indicted for (1) attempted enticement of a minor to engage in prostitution, in violation of 18 U.S.C. § 2422(b); and (2) attempted enticement of an individual to travel for prostitution, in violation of 18 U.S.C. § 2422(a). United States v. Young, No. 13-cr-00229-EMC (N.D. Cal. filed Mar. 13, 2013) at Dkt. No. 10. The underlying criminal complaint explains that the FBI and SFPD had been conducting an investigation into CDP, “a racketeering enterprise suspected of sex trafficking, distribution of controlled substances, gun trafficking, robbery, and murder, ” and that Young “is a member of CDP and a subject of the investigation.” Id. at Dkt. No. 1 ¶ 12.

         In August 2012, as part of this investigation, an undercover SFPD officer posed as a minor online and made contact with Young through Facebook. Id. ¶ 13. After exchanging a number of messages with Young over the course of several months, the undercover officer arranged to meet with Young in San Francisco. Id. ¶ 22. Young was arrested on March 11, 2013 while walking towards the arranged meeting place. Id. The pimping charges followed. According to briefing submitted by the government in the pimping case, Young was with another CDP member when he was arrested on March 11, 2013. Id. at Dkt. No. 20 at 3.

         On June 18, 2014, Young was brought to the courthouse at 450 Golden Gate Avenue, San Francisco, for a hearing before the Hon. Edward M. Chen on the pimping charges. FBI Special Agents Jake Millspaugh and Joseph Atneoson arranged to lock Young in a holding cell with another inmate who was acting as an informant and who was wired so that his conversation with Young could be recorded. The agents instructed the informant that he should not discuss Young's pending case but that he should “feel free” to initiate conversation “on the stuff . . . we're interested in.” Opp. at 3-4 (Dkt. No. 738).

         The informant proceeded to capture approximately 6.5 hours of conversation with Young. The government represents that all portions of the recording regarding the then-pending pimping charges (approximately 38 minutes of the recording) were excised by a “taint reviewer, ” and that the prosecution team in this case has not been exposed to the excised portion. I previously suppressed the 38 minutes of tainted conversation and have rejected the government's requests to review them. Dkt. Nos. 475, 895.

         On October 6, 2016, I issued an interim order on Young's Kastigar motion, explaining why further evidence and testimony was necessary to determine “the extent to which the government's taint team procedures eliminated its intrusion into the attorney-client privilege when it recorded a day long conversation between its informant and defendant Jaqu[a]in Young.” 10/5/16 Order at 1 (“Prior Order”)(filed under seal)(Dkt. No. 1073). The purpose of the hearing was to examine whether “all members of the prosecution team, including the lead investigator, were successfully insulated from ever learning Young's privileged trial strategy information.” Id. at 5. I determined that I would first hear the testimony of the case agents and then decide if a second hearing would be necessary to resolve Young's motion. See 10/5/16 Order at 1. The case agents' testimony occurred on December 16, 2016. Dkt. No. 1103.


         The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” U.S. Cost. Amend. VI. This right, meant to assure fairness in the adversarial criminal process, attaches when the government initiates adversarial proceedings against a defendant. Massiah v. United States, 377 U.S. 201, 205 (1964). The Sixth Amendment right is offense-specific, and “[g]overnment actions that deliberately elicit incriminating statements from an indicted defendant in the absence of counsel” violate it. United States v. Danielson, 325 F.3d 1054, 1067 (9th Cir. 2003).

         In Danielson, the Ninth Circuit applied a two-step test to identify Sixth Amendment violations in cases where the government's interference with a defendant's attorney-client relationship results in the prosecution team obtaining the defendant's trial strategy. See Id. at 1069-70 (adopting the First Circuit's burden-shifting analysis requiring a showing of actual prejudice, with a Kastigar “gloss” placing the burden of showing non-use on the government). First, the defendant must make a prima facie showing of prejudice by pointing to affirmative acts by the ...

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