Federal Agents Cover Up Program Used to Investigate Americans

Just because you're a conspiracy theorist doesn't mean the Government's not making up fake investigation trials to conceal the real sources of tips.  Check out this Reuters article:
Exclusive: U.S. directs agents to cover up program used to investigate Americans

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.

The article goes on to say that the "unit of the DEA that distributes the information is called the Special Operations Division, or SOD" and it partners with two dozen partner agencies, "including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security. It was created in 1994 to combat Latin American drug cartels and has grown from several dozen employees to several hundred."

Here's one example of how a SOD tip would be concealed:

"You'd be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.' And so we'd alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it," the agent said.  . . . After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as "parallel construction."

Sound familiar?

As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.

Double Jeopardy Doesn't Bar Mistrial Caused by Prosecutorial Misconduct Unless Prosecutor Intended to Cause Mistrial

United States v. Dugue, No. 12-60529 (5th Cir. Aug. 9, 2012) (per curiam) (Reavley, Smith, Clement)

Here's what happened: The district court excluded 404(b) evidence prior to trial.  The Government later filed an exhibit list that included the excluded 404(b) evidence.  Dugue moved to exclude that evidence from trial, a motion the court granted.  During trial, while cross-examining Dugue, the prosecutor brought up the 404(b) evidence.  Why?  "The prosecutor claimed that, by raising his eyebrow and nodding his head, the district judge had given her permission to introduce the [excluded evidence.]"  The district court granted Dugue's motion for a mistrial, but refused to bar a retrial because it found that the prosecutor had not intended to "goad" Dugue into moving for the mistrial.

Dugue appealed, arguing that if it looks, walks, and quacks like a duck, it's a duck:

He alleges that “[w]here a Government attorney acts with reckless disregard for the Orders of the Court, under circumstances where only a mistrial can cure the resultant prejudice, the intent to cause a mistrial can be inferred.” This court has never adopted such a per se rule and we question whether such a rule would be sufficient to show that the district court clearly erred. Instead, we have followed the Supreme Court’s ruling in [Oregon v.] Kennedy[, 456 U.S. 667 (1982)].

In Kennedy, the Court made it clear that prosecutorial misconduct alone is not sufficient for a retrial to result in a double jeopardy violation: “Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, therefore, does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Retrial is not barred even where the prosecution engages in “intentional misconduct that seriously prejudices the defendant.” Once the court determines that the prosecutor’s conduct was not intended to terminate the trial, “that is the end of the matter for purposes of the Double Jeopardy Clause of the Fifth Amendment. . . .”

United States v. Wharton, 320 F.3d 526, 531-32 (5th Cir. 2003) (internal citations omitted). For Dugue to obtain retrial, he would need to prove that [the prosecutor's reference to the excluded evidence] was intended to cause a mistrial—a factual determination.

The court went on to hold that the district court's factual determination to the contrary was not clear error, so the retrial is not barred.  There was the obligatory scolding, as well:

The prosecutor displayed overreaching and unprofessional conduct in ignoring the district court’s two orders not to discuss the [excluded evidence]. Her excuse, that the judge’s head nod in response to her raised eyebrow implied permission to introduce previously excluded evidence, is certainly unacceptable. . . . The prosecutor’s improper behavior offers a reminder that attorneys should hew closely to the orders excluding evidence and seek clear permission when they are approaching those topics at a later point in trial.

Defense Suppression Victory; Court Upbraids Prosecutor for Improper Remarks During Closing Argument

United States v. Raney, No. 10-20007 (5th Cir. Feb. 9, 2011; rev. Feb. 10, 2011) (per curiam) (DeMoss, Elrod; Benavides, dissenting)

This case presents two you-dont-see-that-every-days: a rare Fourth Amendment win for the defense, and a stern warning to prosecutors to knock it off with the improper jury arguments.

So what happened here? Raney drove on the wrong side of the street to get around a long line of cars waiting to get into a gas station.  A police officer, who was standing in that lane directing traffic, motioned for Raney to pull over.  Raney did so.  Upon approaching, the officer could smell marijuana.  He ordered Raney out of the car.  A brown object resembling what the officer to believed to be a jazz cigarette fell on the ground.  Handcuffs and pat-down.  Gun in the waistband, ammo in the glovebox, and a felony conviction on the rap sheet = felon-in-possession charge.  The district court denied Raney's motion to suppress the gun and ammo, finding that the stop was justified due to a traffic violation: driving on the wrong side of the street.  A jury found him guilty of the FIP charge.  Raney appealed.

To make a long story short, the panel majority held that there was not an objectively reasonable basis for believing that Raney had committed the three traffic offenses the Government claimed in the district court (driving in the wrong lane, disobeying an officer directing traffic, and reckless driving), or any of the other claimed violations the Government offered for the first time on appeal.  In so holding, the court mentioned a couple of broader points that bear repeating.  First, "[o]ur case law is clear that unless a defendant actually committed a traffic violation, there is no objective basis for the stop in the context of a traffic stop."  Second, and relatedly, the good-faith exception is not available to salvage a stop based on an officer's subjective, but erroneous, belief that a traffic violation occurred.

As it happens, the district court did not make any findings on the Government's disobeying-an-officer and reckless-driving arguments.  But interestingly, the court of appeals refused to remand for additional fact-finding on whether Raney committed those offenses: because "the record has . . . been developed as to these arguments[, w]e will not afford the government a second opportunity to present evidence to the district court in an attempt to meet their burden of proof."  The court therefore vacated the order denying the motion to suppress, and rendered an acquittal.

Now for the schadenfreude . . .

Read more »

Prosecutor's Misleading Rebuttal Argument at Trial Not Plain Error

United States v. Vargas, No. 08-40704 (5th Cir. Aug. 21, 2009) (Higginbotham, Smith, Southwick)

If a prosecutor successfully moves in limine to exclude from evidence an exculpatory statement that the defendant made at the time of his arrest, may she nevertheless strongly imply in the rebuttal portion of her closing argument that the defendant did not try to exculpate himself when he was arrested? No. Is it obviously wrong for her to do so? Surprisingly, no. At least not in this case.

The scenario is familiar: tractor-trailer pulls up to an interior Border Patrol checkpoint, agents find a boat-load of marijuana concealed among legitimate cargo, issue at trial is whether the driver (Vargas) knew of the marijuana. Of course, there was circumstantial evidence that Vargas knew he was running a load. But there was also this: when Vargas was arrested at the checkpoint, "[h]e waived Miranda and, in response to questioning, stated that he had been working for P&M Trucking for seven months and that he had 'just hooked up the trailer and left.' He also said 'I didn’t know there was any drugs inside the trailer.'"

Prior to trial, the court granted the Government's motion to keep out Vargas's statement, unless he testified. Vargas did not testify. In closing argument, his lawyer naturally argued that the owner of the trucking company (Garza) used Vargas as an unwitting dupe to haul the marijuana. In rebuttal, the prosecutor argued:

And what he chose to tell the Border Patrol, being charged with possession of marijuana, over a million dollars, a million dollars there at the checkpoint, it gets more valuable as it goes north, all he chose to say to them when he was asked some questions is saying, “I work for P&M, I’ve been there for seven or eight months, I picked it up and I was just going to drop it off.”

* * *

It seems like he wants you to believe just that, that he did pick it up at P&M. Because he didn’t say anything differently to the Border Patrol at that time, didn’t say he went to Enrique’s [Garza], “I got it from him.” He never said that.

* * *

Everything he did on the night of his arrest says to you the defendant knew, because you never heard, “Enrique Garza did it, let me tell you about him.” Wouldn’t that be reasonable? Wouldn’t that be the reasonable thing to say at that time?

The defense did not object. The jury found Vargas guilty.

Vargas pressed a prosecutorial misconduct claim on appeal, which of course was subject to plain error review.

On the threshold question—was there error?—the court rejected the Government's argument that it was simply responding to a defense theory Vargas brought up for the first time in his closing argument. "[A] prosecutor may not argue the absence of evidence she well knew existed." Here,

[t]he prosecutor lingered on the point, making specific statements that could be read as implying Vargas made no exculpatory statements, when, in fact, he had. . . . In a case where the single contested issue was Vargas’ knowledge, and in which the prosecutor used a motion in limine to have Vargas’ exculpatory statement excluded from evidence, the high ground would have been to steer clear of arguments that infer no such statement was made—especially when that argument was made only after the defense had had its last opportunity to exercise the right to introduce the statement should it become relevant. At best, if not ill-advised effort, it was a hazardous undertaking.

Nonetheless, the court surprisingly concluded that the error was not clear or obvious:

There are two possible readings of the prosecution’s closing. Alone, the argument suggested no exculpatory statement was made, when the government knew it had. But in context of the argument, it answered the defense’s theory of the case first raised in its closing. In light of these two possible readings, the remarks do not rise to the level of obvious error, evidenced in part by the absence of an objection by defense counsel whose competence is evident in this record.

I disagree. As the court stated earlier in the opinion, "a prosecutor may not argue the absence of evidence she well knew existed." Just because the prosecutor does so in the course of an otherwise permissible rebuttal doesn't make the error any less clear. It was perfectly permissible for the prosecutor to address the evidentiary support, or lack thereof, for the defense's theory of the case; it was not permissible for her to mislead the jury by implying that Vargas never exculpated himself when she not only knew full well that he did, but actively sought to keep that statement from the jury in the first place. (It is also troubling that the court cited "the absence of an objection by defense counsel whose competence is evident in this record" as support for its conclusion.)

Even though Vargas was poured out for failing to satisfy the second plain error prong, the court nevertheless went on to address the third, which was whether the prosecutor's improper remarks affected Vargas's substantial rights, "here the fundamental fairness of the trial." And the court held that they did not, because "[t]he statements were limited to a few moments of the trial, albeit in closing argument, and the jury had ample evidence on which to convict Vargas." "Perhaps the remarks made the trial imperfect," the court said, "but it was fair."

This, too, is a questionable holding. Regardless of the weight of the evidence against the defendant, it's hard to see how a trial can be fair when the prosecutor successfully keeps exculpatory evidence away from the jury, and then implies—when the defense no longer has any opportunity to respond—that it doesn't exist.