United States District Court, N.D. California
ORDER DENYING DEFENDANT YOUNG'S KASTIGAR MOTION
RE: DKT. NO. 934
William H. Orrick United States District Judge
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
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.
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
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.
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.
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).
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.
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.
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).
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