A U.S. Departn 0f Justice Office of Professional Responsibility at IOW st I Washington, D. C. 20530 SEP 29 2003 MEMORANDUM 0 . 0 TO: Guy A. Lewis I Director Executive Office for U.S. Attorneys FROM: . Coimsel Ft Report of Investigation Regarding Judicial Criticism of Assistant United States Attorney Jeffrey J. Kent in US v. Danielson, (D. and US v. Danielson, 325 .3d 1054 Cir. 2003) INTRODUCTION AND SUMIVIARY On July I2, 2000, then United States Attorney for the District of Oregon (USA), Kristine Olson, wrote to this office to inform us of criticism by U.S. District Court Judge Ann Aiken regarding the conduct of Assistant United States Attorney (AUSA) Jeffrey J. Kent during the trial of United States v. Danielson. In that case, Danielson, who ran a hunting guide service, was charged with three counts of violating the Lacey Act, 16 U?s.c. 3372(a)(2)(A) and 3373(d), for selling and A transporting in interstate commerce blaclctail deer illegally taken or possessed. Danielson was convicted on one count. During the course of that trial, AUSA Kent attempted to cross-examine Danielson with statements Danielson had made to a government informant after he was indicted. The defense did not initially object to the cross-examination. The next day, the defense moved to I dismiss the charges on the groundsrof prosecutorial misconduct i.n violation of Danielson's Sixth Amendment right to counsel, and for failing to produce in discovery the tape recordings of the Agency Response 00301 infom1ant's meetings with Danielson. The district court ruled that the defense had waived any claim of a Sixth Amendment violation by its failure to object earlier. It ruled, however, that the i government had violated Federal Rule of Criminal Procedure l6(a)( when it failed to provide the defense with copies of taped statements made by the defendant to the undercover informant. The court ruled that the government would not be allowed to use the tape recordings or their contents to further cross--examine Danielson or in its rebuttal case. Judge Aiken commented at the time of her mling that Kent's conduct "was unprofessional and a clear violation ofthe discovery rules." She further stated that Kent, as an experienced prosecutor, knew or should have lcnow that the evidence needed to be disclosed. Later in the trial, Judge Aiken expressed disapproval for AUSz?jKent's provision ofthe g0vemment's trial memorandum to a reporter who published an article on the case during the trial. Judge Aiken also commented that she found the "personal animosity" exhibited by counsel in the case to be unwarranted and Lmprofessional} A After Danielson's conviction, he appealed to the Ninth Circuit on several grounds, including that the government improperly used the undercover informant to engage Danielson in conversation after he was indicted and represented by counsel. The defense argued that, in using the informant, the govemment violated Danielson's Sixth Amendment right to counsel. On May 19, 2003, the Ninth Circuit issued an opinion in the case, finding that the prosecution team deliberate_ly and affirmatively took steps, while Danielson was represented by counsel, that resulted in the prosecution team obtaining privileged information about Danielson's Trial transcript of April 28, 2000, at pages 42-43, 58?59. Judge Aiken's comments regarding animosity, at least some of which appeared to be directed to counsel on both sides of the case, are discussed in greater detail below. . Agency Response 00302 trial strategy? The Ninth Circuit found that AUSA Kent's attempts to insulate himself and the: prosecution team from the privileged information were insufficient and remanded the case to the district court for a hearing to determine whether the governmenfs actions were prejudicial to the defense. In remanding the case, the Court held that it was the government's burden to prove that it did not use any of Danielson's trial strategy information.] The Court did not reach the issue of whether the government should have produced the tape recordings under Rule 16, ruling instead that any violation of the rule was cured by the district court's suppression of the tapes and curative instruction. A OPR initiated an investigation. During the course of our investigation, we reviewed the trial transcript, the filings by both parties, including on appeal, and the intemal file on the matter kept 4 by AUSA Kent. We requested and reviewed a written response from AUSA Kent, which he submitted with supporting documentation. We also interviewed Kent, his supervisor AUSA John Ray, AUSA and Professional Responsibility Officer (PRO) Jim Sutherland with whom Kent consulted during the undercover investigation, Magistrate Judge Thomas Coffin, Oregon State Police Trooper David Owren, and a number of other witnesses} We requested an interview with Judge Aiken, but she declined to be interviewed because, due to the remand by the Ninth Circuit, the matter is still pending before her. We also interviewed Joan Goldfrank of the Department's Professional Responsibility Advisory Office (PRAO), with whom Kent consulted during the use of the undercover informant, and reviewed her contemporaneous notes of that consultation. 2 United States v. Danielson, 325 F.3d 1054 Cir. 2003). 3 The district court has not yet held the evidentiary hearing on this issue. . A transcript of our interviewvof AUSA Kent (Kent Interview along with a copy of an additional written response provided by Kent on August 8, 2003, are at Tab 1. AGENCY Response 00303 Based on the results of our investigation, we concluded that AUSA Kent committed intentional professional misconduct by intentionally violating Danielson's Sixth Amendment right to counsel. We liuther concluded that Kent committed professional misconduct by recklessly disregarding his duty of candor to both the district and appellate courts; (2) recklessly disregarding his obligation to produce the recorded statements of Danielson to the defense pursuant to Rule 16; and (3) recklessly disregarding his obligation under Department regulations regarding contact with . the media. Finally, we concluded that AUSA Kent's unprofessional conduct at trial constituted the exercise of poor judgment. In light of our conclusion that AUSA Kent engaged in professional misconduct, we recommend a range of discipline from a fifteen-day to a thirty--day suspension. In addition, pursuant to Department policy, we will refer our findings of professional misconduct to the Illinois Bar for its consideration after the disciplinary process is concluded. A I. STATEMENT OF FACTS A I A. US v. Danielson i 1. Indictment and Pre-Trial Investigation of Obstruction of Justice On March 18, 1999, William Danielson, a professional hunting guide who operated his own A guide service in Southern Oregon, was indicted for violations of the Lacey Act, (16 U.S.C. 3372(a)(2)(A) and 3373(d)), relating to the illegal sale, taking, and interstate transportation of deer, elk, and trophy antlers. Count One charged Danielson and others, including co--defendant Robert Howard, with illegal sale in interstate commerce of "numerous sets of deer and elk antlers." Count Two charged Danielson with the sale of an illegally killed deer to a hunting client, Billy Lingefelt, and interstate transportation of that deer. Count Three charged Danielson and one of his guides, Agency Response 00304 John McCollum, with sale of two illegally killed deer to another hunting client. AUSA Jeffrey Kent i was responsible for the investigation leading to the indictment and was assigned to take the case to trial. Danielson was represented by Assistant Federal Public Defender Bryan Lessley. i After his indictment, Danielson was released on bond. According to the government, soon after his release, Danielson began soliciting Wayne Sava, a tenant in a mobile home that Danielson owned, to provide false testimony in Danielson's upcoming trial. Sava alerted the Oregon State Police (OSP) about Danielson's plans and agreed to cooperate with authorities. In December 1999, OSP Senior Trooper David Owren notified AUSA Kent about Sava's claim that Danielson solicited Sava to provide false testimony. Kent told OPR that he leariied from Trooper Owren that Sava was willing to cooperate in an investigation of possible obstruction by Danielson. Kent stated that he authorized the law enforcement officers to use Sava to investigate the allegations of obstruction, but instructed them to be careful not to probe into any legal strategies that Danielson might use for his defense at trial. Kent said that he simultaneously obtained approval . tok use Sava from PRAO. Sava began meeting with Danielson and recording the meetings on December 12, 1999. His last recorded meeting with Danielson was on January 23, 2000. a. Consultation with PRAO Kent told OPR that at the time that he authorized the agents to use Sava, he sought the advice of AUSA Jim Sutherland, the USAO's PRO, on the issue of contact with represented parties. Kent said that he was aware of the "b1ack letter law" on the issue that the government had a right to i investigate ?a new crime. Kent stated that he and Sutherland called PRAO and spoke with an attorney who advised him that it was proper to use Sava on a covert basis to investigate ongoing crimes. Kent told OPR that during the telephonic consultation with PRAO, the PRAO attorney Response 00305 asked if he "wanted a taint team." Kent said that he looked to Sutherland and Sutherland responded A that he did not think they needed one.5 Our review ofthe PRAO tile revealed that Kent and Sutherland's sole consultation with . PRAO was on January 20, 2000, over a month alter Sava began recording his meetings with Danielson. The file indicated that Kent and Sutherland told former PRAO Attorney Advisor Joan Goldfranlc? that they were concemed with the prohibitions on contact with represented parties under Rule 4.27 and the Burrows case,8_but that they wanted to obtain evidence of obstruction of justice to use in the govemment's rebuttal case in the Lacey Act prosecution. According to Goldfrank's notes, she told Kent that he should "set up a taint team," and ask the court for permission toiuse the evidence in rebuttal. Her notes indicate that she explained that ongoing criminal activity is excepted from the prohibition on contact with represented parties and is therefore not covered by Rule 4.2. b. Kent's Instructions Regarding the Use of Sava and the Handling of Information Obtained From the Investigation . Kent told OPR that he instructed Trooper Owren that the OSP could use Sava to investigate acts of obstruction of justice and new crimes, but that they had to be careful to instruct Sava not to 5 Kent Interview Tr. at 13. 6 Goldiank is currently a Magistrate Judge in the District of Columbia Superior Court. 7 Model Rules of Professional Conduct, Rule 4.2 (prohibiting a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless the lawyer has theconsent of the other lawyer or is authorized by law to do so). The pertinent provision of the Oregon Rules of Professional Responsibility, which apply here, differs from Rule 4.2 and will be discussed in detail below. 8 In re Burrows, 291 Or. 135, 629 P.2d 820 (1981) (holding that district attomey violated disciplinary rule when he communicated or caused others to communicate with rape and robbery suspect without attorney's consent, notwithstanding that such communication allegedly related to separate matter). A Agency Response 00306 probe into any potential legal strategy on the pending charges against him. He said he told the_ agents that they could only report information about new crimes to him and that he could not be informed of any "legitimate defense strategy."9 Kent said the agents would periodically update him on the type of evidence that was being developed on new crimes, including obstruction of justice. Kent told OPR that he met personally with Sava twice once because Sava was concerned about I his safety after Danielson had likely become aware of Sava's cooperation and could possibly harm him, and once for Kent to prepare him for possible rebuttal testimony at trial. Kent said he told Sava: said, cannot hear anything other than information about new crime evidence. I can't hear about defense strategy and pending charges unless it involves bribery or perjury or like that. mw Kent said that he also listened to portions of tapes Sava recorded of conversations between Sava and Danielson. Kent stated that the agents would play portions of tapes, based on tape counter numbers, which he asserted dealt only with new crimes. Kent said the agents also provided him with reports periodically, but that he put those reports away without looking at them. Kent said that he may have reviewed redacted transcripts that were provided to him by Trooper Owren, but that he I could not recall. Trooper Owren told OPR that Kent approved the use of Sava in an undercover capacity and told Owren to instruct Sava not to ask questions of Danielson about his trial strategy, but stated/that if Danielson brought up the subject, Sava could listen. Owren said that Kent met personally with Sava a few times and stressed that Sava should not "go into certain areas." Owren said that he was 9 Kent Interview Tr. at 17. Kent Interview Tr. at 35. 1 i Agency 00307 aware that Sava sometimes did not obey these directions and that he found Sava to be "overly ambitious" as a cooperator at times. For example, Sava asked Danielson if he planned to take the stand at his trial; asked in detail about Danielson's plan to argue as his defense to Count Two that Lingefelt had paid an extra $2500 for his wife to come on the hunt rather than for a second, illegal deer; and asked about a letter that Danielson had written to his attorney about the pending case. i Owren said that he believed he told Kent that Sava was asking inappropriate questions, but he did not recall Kent's response. Owren said that Kent was very busy and difficult to reach. Owren said he provided Kent with copies of transcripts and reports andassumed that it was permissible for Kent to review them. li According to the reports and transcripts made during the investigation using Sava, Sava recorded telephone conversations with Danielson and one in--person conversation using a body wire. Some of Sava's contacts with Danielson were not recorded, but Sava provided information about these contacts to Trooper Owren, who generated swnmary reports about them. From Sava's contact with Danielson, the government obtained evidence related to potential new crimes: that Danielson asked Sava to testify that he had been present during the transfer of trophy antlers not charged in the indictment; that Danielson asked Sava to attempt to influence the jury by emoting negatively during the government's case and making comments within hearing distance of jurors during breaks that the charges were frivolous; that Danielson asked Sava to pick I a seemingly influential juror after the jury was picked and to take the juror to dinner under the pretense of writing a book on these types of cases and attempt to sway the juror against the gove1?nmer1t's case; and that Danielson asked Sava to participate in the planned theft of valuable coupon books from an upcoming wildlife convention in Reno, Nevada. However, as will be Agency Response 00308 discussed below, the government also obtained information about the pending charges and about_ Danielson's trial strategy. . Based on the information from Sava, the OSP notified Reno, Nevada law enforcement of Danrelson's intent to steal numerous coupon books and he was arrested on felony theft charges on January 26, 2000, while attempting to steal them. Danielson suspected Sava as the source of information to the authorities and Sava's cooperation with the government was terminated. i According to government records, Sava was provided with relocation monies in mid--February 2000, and moved to a secret location with the assistance ofthe USAO's Victim Witness Assistance Unit. AUSA Kent did not produce the tapes of Sava and Danielson to the defense in discovery. Kent argued at trial that he did not believe that he had to produce the statements. He stated: made a strategic decision, anticipating that Danielson, who obviously believes he can talk his way out of anything, [that] the tape would keep him honest, or would expose him for who he is, were he to testify."H 2. Trial In April 2000, the case proceeded to trial. At trial, Danielson's defense to Count One was that he had "leased," rather than sold, the deer and elk antlers in question. His defense to Count Two I was that the government did not prove its case beyond a reasonable doubt. His defense to Count Three was that, while the client in question admittedly did not have the proper permits to kill deer, Danielson had instructed his codefendant that the client could not hunt and it was his codefendant who had committed an illegal act and not Danielson. April 28, 2000 Tr. at 7. ii Agency Response 00309 a. Attempted Use of the Obstruction Evidence Danielson testified at trial. Early in Danielson's cross--examination, Kent asked Danielson about attempts to influence witnesses. He then asked Danielson, do anything in this case to to win, wouldn't you?" Danielson replied, "I'm not guilty." Kent then requested a sidebar conference with the judge and the judge sent the jury out ofthe courtroom. Kent advised the couit and defense counsel that he planned to cross--examine Danielson with evidence of "rigging this jury." Kent stated he would establish that Danielson had stated that he had bribed a grand jury witness and had instructed someone "on how to reach this ury." After discussion with the court and cotmsel, the jury was recalled and the government continued cross--examination. Defense bounsel made no objection on Sixth Amendment or Rule 16 discovery violation grounds. I The following morning, defense counsel filed motions to suppress the statements and moved for a mistrial, invoking Danielson 's Sixth Amendment right to counsel and the government's failure to produce the tape recorded statements of the defendant in pre--trial discovery- The defense cited the case of Massiah v. United States, 377 U.S. 201 (1964), in which the Supreme Court reversed a conviction where a government informant had installed a hidden radio in the defendant's car in order to obtain incriminating statements. In response, AUSA Kent told the court: i [A]fter conferring with people in my office and in turn the Department of Justice in Washington, D.C., we made a decision to periodically put a wire on [Sava] to gather information relating to ongoing and future crimes relating to obstruction of justice. He was specifically advised not to elicit any information conceming the defense in this case. And I specifically instructed him when I talked to him not to give me any information related to that. -10- Agency Response 00310 What Massiah is about, the case cited in the defense motion, is basically penetrating the defense camp to gather information on apending case. This was a new, independent` investigation, which also happened to have some bearing on this case, obviously. And the Department of Justice authorities on ethical considerations endorsed what we were doing.'Z Kent argued that he was not required to provide the tapes to the defense under Rule 16 because Rule 16 only required the government to provide statements ofthe defendant that "pertain to the . . . case on trial. The court recessed to allow the attorneys to research the issues. Af`ter the recess, the court found that the defendant had failed to make a timely claim of a Sixth Amendment violation because defense counsel failed to object the previous day when the government had first disclosed the existence of the tapes. It denied the motion for a mistrial, but i granted the motion to suppress the evidence, finding that the government had a duty under Rule to disclose the evidence of def`endant's statements made on the tapes, "if not the tapes The court reasoned that even if the investigation regarding the informant were initially separate, the investigation and the case were closely intertwined and once the defendant began making statements about the trial, the tapes should have been disclosed. The court added: I want to clearly express the court's surprise and disappointment in the govemment's conduct regarding failure to disclose the tape and the statements. The conduct in my opinion was unprofessional and a clear violation of discovery rules. Fm surprised because as an experienced prosecutor, government counsel knew or should have known that this evidence needed to be disclosed regardless of government counsel's view of the defendant or his alleged conduct. The failure to disclose has caused unnecessary delay and hardship on the jmry, the parties, counsel, the court and the corut staff The court finds the personal animosity exhibited in 12 April 28, 2000 Tr. at 5-6. April 28, 2000 Tr. at 6-7. (The quotation is of AUSA Kent; these particular qualifying words do not appear in Rule 16 itself) *4 April 28, 2000 Tr. at 6-7. i Agency Response 00311 this case unwarranted and unprofessional. And it will not be tolerated further. And for future reference, parties, counsel will check their emotions and their personal vendettas at the door.'5 The court gave the jury a curative instruction, instructing it to disregard the questions Kent had asked on cross examination. b. The Government's Trial Memorandum and the Publication of an Article on the Case During Trial On ebmary ll, 2000, prior to the commencement of trial, Kent filed with the court a trial memorandum which outlined the charges against the defendant. The memo stated that the incidents charged in the indictment were "but a fraction ofthe illegal activity Danielson has engaged and included information about Danielson 's prior felony convictions for burglary, theft, and assault, and his arrest on felony theft charges a few weeks earlier in January 2001. The trial memo stated that Danielson was notorious among hunters because of his illegal hunting activities, and added that he "has even stolen money and jewelry from hunting clients"; cheated clients by failing to deliver trophy deer or delivering inadequate services; failed to pay sub--guides money he owed them; and illegally hunted animals who came to feeding areas. The brief also included an exhaustive list of allegations about Danielson's business practices, including hiring "criminally inclined sub--guides," and using stolen photographs in his brochures. The memorandum stated: Danielson seems conscienceless, oiten seducing otherwise law abiding hunters to join him in the great illegal pursuit ofthe trophy. He has trampled on real property rights, violated personal property rights, extorted money from honest hunters, and sought to prostitute the integrity of all around him . . . all aiter the gratuitously inane restoration of his gun rights by a Southern Oregon justice of the peace.'" *5 April 28, 2000 Tr. at 42-43. This is a reference to the factithat Danielson, as a convicted felon, could not possess a weapon until a Justice of the Peace in Oregon restored his right to carry a fireann. i -12- A Agency Response 00312 Kent attached exhibits supporting most of the allegations in the memorandum. The trial memorandum stated that all of this infomation was "relevant and prefatory to the government's motion that it be allowed to introduce evidence of four instances of these scores of illegal and unethical activities" under Fed. Rule Evid. 404(b) (emphasis in original). The government then outlined four specific instances of hunting violations by the defendant including: a 1990 hunt where the defendant guided an illegal hunt in a restricted area without the proper tags; a 1993 hunt where the defendant encouraged a client to shoot a deer with a rifle during a period in which only bow hunting was allowed and told the client that he used to poach frequently and sell the trophy antlers to clients; a 1997 incident where the defendant encouraged clients to huntiat night and from vehicles; and a 1996 incident where the defendant attempted to sell a "found" deer to a I hunter. On February 10, 2000, the defendant filed a motion in Zimine to preclude the goverr1ment's evidence of "0ther crimes" under Rule 404(b). On February 22,-2000, the court issued an order allowing evidence as to the two prior hunts in 1990 and 1996, but denying the government's motion to present evidence as to the hunts in 1993 and 1997. A During trial, on April 27, 2000, an article by a newspaper reporter named Mike Stahlberg entitled "Oregon Outfitter Finds Himself in Middle of a Federal Case," appeared in the Eugene Register-Guard. The article stated that it is unusual to have a federal case over violations of hunting laws, so he felt it was "wortha lool<[, [e]specia1ly given that the government filed court documents describing the defendant in the case as 'one of the most notorious guides in the country."' The article went on to note that, while AUSA Kent did not say so in his opening statement, it is apparent from reading the govemment's trial memorandum "that this is a federal case because prosecutors believe Danielson has systematically engaged in hunting abuses over the past 10 years." The article 0 -13- . Agency Response 00313 quoted the government's statement in the memorandum that Danielson "has almost single-handedly brought Oregon hunting into disrepute with hunters all over country? It also stated that Danielson . was convicted of felony burglary and theft charges. It concluded: "lt remains to be seen, ofcourse, whether the govemrnent can prove its allegations to the jury's satisfaction. But if Danielson did half the things the government alleges, his certainly deserves to be a federal case." A defense investigator contacted Stahlberg and learned that he had obtained the trial memorandum from Kent. On the morning the article appeared, therefore, the defense moved to i i dismiss based on outrageous government conduct because of AUSA Kent's release of his Dial memorandum to the local newspaper. The judge asked the jury whether they had seen the article or heard any reports by any person regarding the contents of the article. All jurors indicated that they had not heard about the article or read the article." The court then denied defense counsel's motion to dismiss, but stated: . I do not need to tell you, Mr. Kent, that there are judges that I have served with in state court who would have you perhaps in contempt right now for sending a trial memo to the Register-Guard and find that conduct not professional. I am taking no such action please sit down. Please sit down. I But I do find it disturbing that I found this this most of the nature of the evidence that . was not going to be allowed in court in a newspaper article. I find that disturbing and it makes a trial difficult. I'rn taking no action. This case is not to be dismissed on that basis. The jurors have not read that article. But I think common corutesy, if the Register-Guard wants to come and look at the files and understand what's before the court, it's a public body, it's a public record, they can come and do that. Butl don't find that behavior necessarily acceptable. fl would caution you in cases that I have, I would appreciate until the rulings are made not- not initiating that A kind of contact. Because it makes selecting a jury and makes trying these cases all the more difiicult. *7 April 28, 2000 Tr. at 56-58i . Agency Response 00314 . I'm taking no action. This case is not to be dismissed on that basis. The jurors have not read; that article. '8 Kent told the court that he had "no idea" that Stahlberg was going to publish an article in the middle of trial. He stated: "In fact, it was my impression he was going to do a combined article sometime in the future about another guiding case that was being prosecuted in Portland, and this one." He added that he was "offended" that the court had criticized him without listening to his explanation. *9 Kent told OPR he discussed the Danielson case with a friend named Bob Zagorin, who was A the Director ofthe Oregon Guides and Packers Association. Zagorin was familiar with Danielson {because of the numerous complaints about him the Association had received from out--of-state hunters. 'Kent stated that Zagorin told him he was going to call Stahlberg about the upcoming trial and Stahlberg called Kent before the trial. I Kent said he gave Stahlberg a copy of the trial i memorandum "kind of as a gesture of friendship."2? He said that Stahlberg had mentioned another Oregon hunting case on the telephone and that he believed that Stahlberg "said something like, 'Maybe l'll try to do a piece on the two of these. Kent told OPR that this statement gave him the impression that Stahlberg would do an article at a later time. Kent asserted that he was shocked when the article appeared during trial and denied that he was trying to contaminate the jury. Kent admitted that the court had ruled on the government's motion to use evidence of "other crimes" April 28.2000 rr. at sx-59. *9 April 28, 2000 rr. at 171-172. 20 Kent Interview Tr. at 78. We interviewed Bob Zagorin, but he did not recall the details of his contact with Kent or Stahlberg on this issue. I Kent Interview Tr. at 79i . 4 -l5? Agency Response 00315 under Rule 404(b), and had denied it in part, at the time that he provided the memorandum to Stahlberg}2 Kent told OPR that his purpose in filing the trial memorandum was to set forth the full backgrormd of Danielson "in hopes that we would get in evidence,"23 Kent stated that he included information about Danielson's convictions in the memo to "give the judge a sense of this individual? He stated: I wanted to give the judge a flavor of this defendant because in this type of case, there's kind of a natural tendency to discount a case like this. You know, what's a hunting case doing in federal court'? Andwhen you lay out the profile of Danielson, including his criminal history, it provides a background as to why it's here The judge has a lot of discretion on evidence, . . . Ithink in my experience, . . . judges who have a sense of a defendant, you know, not being the most upstanding person and also capable of deceit and so on might be more liberal in exercising their discretion to allow evidence.2" c. Incident with Federal Defender Weinerman Prior to the conclusion of the trial, AUSA Kent informed the court that Trooper Owren's wife, Susan Owren, had witnessed inappropriate behavior in the courtroom the previous day. Susan in Owren told the court that a man, who she later identified as Chief Public Defender Craig Weinerman, had been sitting in the courtroom and began mumbling to himself then shaking his head. She stated that Weinerman was disagreeing with AUSA Kent and started gesturing with his hands and saying, "That's not right.'l Kent told the court that he had been concerned when Susan Owren first told him about an unidentified man behaving inappropriately, because it appeared that the unknown individual was engaging in the type of behavior that Danielson had asked Sava to 22 Kent Interview Tr. at 80. 23 Kent Interview Tr. at 80. 2" Kent Interview Tr. at 82-83-. -16- Agency Response 00316 engage in. He later learned, however, that the individual was Weinerrnan, supervising attomey of his opponent, Bryan Lessley. The court questioned Weirrerman about his behavior. Weinennan denied behaving inappropriately and testified that he had a long and contentious history with AUSA A Kent and that Kent would take any opportunity to impugn his integrity. Weirrerman stated that Kent had a tendency to try to bully and intimidate witnesses and use unfair methods of cross~examination. Weinennarr said he believed that Kent was engaging. in those tactics and that he was upset that defense counsel Bryan Lessley was not objecting. He admitted that he was muttering to himself, I but asserted that it was not in a demonstrative way and that he did not intend to communicate with the jury. The court commented that she did not notice a.ny misbehavior by Weirremran, stated that his demonstrative behavior was unacceptable. d. Jury Verdict I The defendant was convicted on Count Two and acquitted on Counts One and Three. He was eventually sentenced to 18 months in prison. e. Comments by the District Court about Unprofessional Behavior As discussed above, in reviewing the issue ofthe governrnent's failure to produce the Sava tapes pursuant to Rule 16, the court commented: "The court finds the personal animosity exhibited in this case unwarranted and unprofessional. And it will not be tolerated further. And for future reference, parties, counsel their emotions and their personal vendettas at the door."25 In addition, at the defendant's sentencing on April 5, 2001, the court stated: Although almost a year has passed since your conviction, it is apparent from the submissions to the court and other information that emotion and personal hostility between government A 25 April 28, 2000 Tr. at 42-43li le -17- Agency Response 00317 counsel and you continue to fuel this case. Frankly, this case needs to come to an end, at. least as far as this court is concerned, I am aware that some cases get under the skin of counsel more than others. I also understand that some defendants view their cases as games of one-upmanship with the government. However, it is the role of the court to remain above the fray, disassociate itself from the personal animosity between the parties, and discharge its duties impartially.26 Kent told OPR that Danielson engaged in very hostile behavior in the courtroom during trial, . attempting to "stare down" Trooper Owren, his wife, Kent, and Kent's wife. Kent stated that the. judge "undoubte_dly accurately perceived that I was emotionally involved in the case at that stage."" A 3. Post-Trial Motions On July ll, 2000, Danielson moved for a new trial, judgment of acquittal, and arrest of judgment. On October 13, 2000, the government filed its response to the defense allegations that the government had violated the defendant's Sixth Amendment right to counsel, and that the statements obtained from the defendant should have been produced pursuant to Rule a. Sixth Amendment Violation 'I`he government asserted in its response to the defense post--trial motions that it acted properly in investigating ongoing, new, and separate criminal activity by Danielson and therefore did not violate his Sixth Amendment rights. Kent argued in his brief that it would have been a "dereliction of duty not to investigate overtly or covertly the defendant's conduct" to determine if there was potential ongoing criminal activity, including obstruction of justice in the pending proceeding. Kent asserted that he had taken "great care to insulate himself from any incidental 26 April 5, 2001 Hearing Transcript at 3. We attempted to interview both Judge Aiken and defense counsel on the issue of unprofessional conduct. Both declined to be interviewed because, due to the remand ofthe case by the Ninth Circuit, the matter was still pending. 27 Kent Interview Tr. at 62. -13- Agency Response 00318 information relating to legitimate defense strategy in the pending case." He also asserted that he i had checked with both the office PRO and PRAO and that PRAO "approved the course of the investigation as lawful and appropriate? The government also argued that, while statements by a defendant elicited in violation of his Sixth Amendment rights are not admissible in the case-in-chief they are admissible to impeach the defendant's testimony and in the government's rebuttal case. Kent concluded that the govemment's conduct was "in fact lawful, ethical, appropriate, necessary and even imperative to root out this defendant's elaborate plans to sabotage the justice system that was to adjudicate criminal charges against him."Z8 . . Kent submitted affidavit with the government's response to the defendant's motion for a new trial, dated October 13, 2000, that stated: I repeatedly advised the law enforcement officers involved in this case to focus as exclusively as possible on the new offenses of obstruction of justice in the forms of bribery and subomation of perj ury and any other new or separate criminal conduct that Danielson might have been or is currently engaged in I consistently told law enforcement officials that insofar as information relating to lawful defense trial strategies might be developed incidental to their efforts to investigate obstruction of justice issues, I did want to be advised of such matters. I told them that as to undercover recordings, I only wanted to be told about and listen to portions relating to obstruction of justice matters and any other criminal conduct separate and independent of the pending charges. Government counsel was not advised by the law enforcement officers or Wayne Sava of any lawfitl trial strategy issues. Government counsel in fact did not review the transcripts, tapes or reports relating to, Wayne Sava's cooperation except when specifically directed by the officers or Wayne to portions relating to new and independent criminal conduct. When Wayne Sava carne to our offices in April, 2000 to be prepared to testify in rebuttal at trial, I asked him to independently listen to the tapes, read the transcripts, and review the reports and to advise me only of the parts that fit the parameters above. (Emphasis in original.) 28 Government's Response to`Pbst Trial Motions, at 17. -19- Agency Response 00319 Kent stated in the affidavit that he met with Sava in December and told him that, because of certain rules of law, he did not want to be advised of any information other than that relating to new and separate criminal conduct. He also asserted that he told Sava not to solicit trial strategy information I from Danielson and stated: I further explained that if Danielson continued to obsessively volunteer such information on his own, that to protect his cover and cooperation he could continue to receive that information but that I did not want to be advised of these matters unless, of course, the strategy included ille_gal activities such as subomation of perjury. He also asserted: gained no meaningful insights into 1j defense trial strategies from Wayne Sava's c0operation." (Emphasis in original.) As an example, he stated that he did not know that Danielson's wife would testify at trial.29 A In response, the defense asserted that significant aspects of Kent's claim that he insulated himself from trial strategy information were not supported by the evidence. It asserted that the evidence showed that Sava was violating the prohibition on eliciting trial strategy information; that the law enforcement officers were preparing reports and transcripts showing that this was happening; and that all of the materials were being copied to AUSA Kent. The defense stated that the officers were providing the information to Kent from the beginning and that Kent did nothing to stop them. It also asserted that Kent had to have read some of the transcripts because _he asked the defendant about some ofthe subjects in them, and the questions were "specific to the point of quoting from the A i 29 One of the transcripts of conversations between Sava and Danielson reflected a discussion of whether Danielson's attorneys plamied to call his wife at trial. 30 Defendant's Reply to Gove;ntnent's Response to Post--Verdict Motions, November 3, 2000, at 16. I Response 00320 Kent argued in his response to the defendant's post trial motions that the defense was making "much ado" about government counsel having the reports and transcripts ofthe Sava investigation in his office. Kent again asserted that he had not read the reports and transcripts, but also asserted; At any rate, the defense disclosed most of its tailored defense strategy before trial in the form of defense witness statements and proposed exhibits For example, a basic reading of [the defense investigator's] report of interview disclosed that the defense was devising a strategy regarding the Lingefelt part ofthe case that Danielson had "received money for non--hunting participants" such as Mrs. Lingefelt and the claim that the second deer had came from "someone [who] gave" a tagged deer head to Mr. Lingefelt Thus, much of this tailored defense was revealed through pre--trial disclosure of perjury-riddled defense witness statements and forged and altered defense exhibitsil Kent concluded, in his final reply to post-trial motions: Government counsel has been a prosecutor for twenty-five years and has never before this case been accused of intentionally unethical or dishonest behavior. In this case, government counsel properly authorized claims of obstruction to be investigated and relevant . conversations to be taped after consultation with ethics advisors in the Department of Justice; thereafter he insulated himself from revelations of defense strategy except to the extent it was based upon acts of obstruction and other independent criminal activity, made no secret in his discussion in his office and elsewhere of his intent to save the material for rebuttal if Danielson testified, fully believing and still believing, as has been his long--tenn practice, that Rule 16 permits such a strategy Thereafter he participated in a very difficult week-long trial that was under tight court--imposed time constraints while the supervisor of defense counsel made faces during his cross-examinations (as Wayne Sava had been asked to do). He was constantly wary ofwhat tricks Danielson and his operatives . would pull. The atmosphere was further intensified by Danielson's disconcerting staredowns of the spouse of the senior trooper and spouse-to-be of the prosecutor --.and of course the senior trooper and prosecutor. Danielson, the most devious defendant government counsel has ever encountered, was assisted throughout the trial in presenting forged documents and perjured testimony in unprecedented dimensions. However, he was confident that all of Danielson's illegalities would be exposed during his cross-examination of Danielson and rebuttal evidence of Wayne Sava's dealings with the defendant. What has happened to govemment counsel for his considerable effort and hard work has been a slew of criticism for unlawful, unethical, dishonest, and prejudicial conduct when he Government's Additional Response to Defendant's Reply to Government's Response to Post- Verdict Motions, Decemberl2, 20UO, at 8-9. -2 I Agency Response 00321 fully believed and still believes that his conduct, consonant with his career, was lawful, ethical, honest, and fair as a vigorous advocate for the public interest. I This is not to criticize the court. These difficult issues were sprung upon the court under tight time constraints without the benefit of government memoranda that ideally should have anticipated the issues. However, the central fact is that the govemment's case was impaired far more than the defense case was in any way prejudiced. Government counsel again apologizes for his own heightened emotions in parts of the extremely "t1ying" case}2 . At oral argument before the district court on the motions, Kent was questioned by the court about what material he reviewed: COURT: [I]t's clear in looking at all the documents that in his conversations with you that you were checked or given copies of absolutely everything, and that you acknowledge receiving everything and having it on your desk, but you read only those portions that were called to your attention to the issues of concern as specified more directly in your affidavit. KENT: Yes, with this one modification: That they weren't on my desk. I mean, Ireceived them. I threw them in a file called the Wayne Sava file, and stuck them in a drawer. b. Rule 16 Violation In response to Danielson's motion for a new trial, the govemment again argued that Rule 16 did not require production ofthe statements, and that production ofthe statements was therefore not required until after the testimony ofthe witness on direct examination under 18 U.S.C 3500 (the Jencks Act). Kent argued that a comprehensive reading of Rule and the Jencks Act together indicated that, while a defendant has "a right to his statements made 'to a person then known to the defendant to be a ovemment a ent' [phraseology used twice], he has no right to statements made to even unknown undercover agents much less unknown undercover informants 32 Government's Additional Response at 17-18. -22- . Agency Response 00322 such as Mr. Sava, whose safety is typically even more at risk." (Emphasis and brackets in original.) w. He argued that the requirement under the Rule to provide any "relevant written or recorded statements made by the defendant" should be construed in the context of the language of the entire Rule, which in the same sentence indicates that the requirement to produce "any written record e? containing the substance of any relevant oral statement" is restricted to only those made "in response to interrogation by any person then known to the defendant to be a government agent." AUSA Kent stated that, while the government often engaged in more liberal discovery practices, "this was a case that called for a more cautious discovery policy" because of Danielsonis several attempts to intimidate, influence and bribe witnesses and tamper with the jury." Heiargued that discovery of these statements was not required in this case because ofthe need for "secrecy and protection" of Sava and his fiancee. Citing tothe Advisory Committee Notes to Rule 16, AUSA Kent wrote that "[t]he federal rules of discovery are deliberately designed to protect witnesses from potential intimidation and harassment. "34 c. Unprofessional Conduct The issue of unprofessional conduct was addressed again during the litigation of the post- I trial motions. In the government's response to the defense post--trial motions, Kent stated: Obviously, the trial in this case was bitterly contested. Emotions indeed crested. For my own exhibition of emotions, I apologize to the court and counsel. I have always cherished the legal system, problems and all, and efforts to corruptly subvert it strike at the core of my value system and my emotion. 33 Government's Additional Response at 22-23. Government's Additionaldiesponse at 24. A -23~ Response 00323 The district court held a hearing on the post trial motions on December 13, 2000. At that hearing, Judge Aiken again expressed her displeasure with the demeanor of counsel. She stated: First I need to tell you that it was difficult to even come in here this morning because ofthe tenor of the documents filed by both counsel, As they were arriving in my office and I would read them individually, I was perplexed and astounded that we were having a continuation of the emotion and, to use a term I don't really approve of using in the courtroom, the venom that was displayed in the courtroom and carried out in the written papers filed. I arn frankly astounded. So I am going to tell you both at this moment, this hearing will be conducted with dignity and respect, with voices that are in speaking tones, with language that is commensurate with the room in which we find ourselves. Not interrupting, Not speaking over people. Simply presenting the case that's before us. If there are any displays or behaviors by anybody that begin into that realm, I will get up and leave the bench and return when I am told that emotions are contained and behavior is back in check. I didn't believe when I came to the federal court that I would ever, ever have to experience what occurred during this trial in terms of behavior and in terms of language, and I certainly didn't believe I would ever read the kind of language I find in the documents. So it's fair warning to both of you that that's how I expect you to comport the rest of this day. d. District Court Ruling on Post--Trial Motions On January 22, 2001, the district court issued an opinion denying the defense motion for a new trial or judgment of acquittal. The court disagreed with the defendant's contention that the questions by Kent based upon the tape recordings had tainted his credibility to such a degree that his conviction should be overturned. The court found that the goverr1ment's use of information obtained from the taped statements with Sava was a small part of the totality of the evidence presented. The court added that the defendant had put his own credibility in question through his demeanor during trial. The court stated: "Defendant's hostility toward the govemment and law enforcement officials and govemment counsel was thinly veiled during the government's case-in- -24- Agency Response 00324 chief and cross-examination. Finally, the court pointed to the curative instruction it gave to the jury, to disregard the evidence obtained from the tapes, The court concluded: "Considering the totality of the circumstances, I find that defendant's trial, although not perfect, was indeed fair." 4. Kent's Explanations to his Office After trial, Kent prepared a memorandum dated June 28, 2000, for his supervising attorney, AUSA Ray, at the request of then U.S. Attorney Olson regarding the issues Judge Aiken raised at trial. The memorandum stated that, after consulting with Sutherland and PRAO, "we were advised that in the opinion ofthe DOJ Ethics attorney it would be proper to investigate and record such conversations relating to these new crimes of obstruction." Kent asserted that heiiwrote a A memorandum to the Criminal Division Chief} consistent with office procedure relating to consensual recording of conversations, and then told the law enforcement officers that they were authorized to debrief Sava regarding these matters, but that he should be instructed not to actively seek information on the defense's trial strategy and, if such information was volunteered by the defendant, that the officers should insulate Kent from such information. Kent also asserted that he and Sutherland, after conducting research when the issue was raised at trial, were "satisfied that the explicit language of Rule 16 did not require the government to tum over either rebuttal evidence or statements of the defendant made to someone not known by the defendant to be a government agent." Kent stated: i While my comments to the court over a difference of opinion regarding the law would normally be deferential, the court's staccato accusations of contemptuous and unprofessional conduct provoked a more vigorous and forceful defense of my integrity, especially after not being allowed a timely opportunity to either present the law or defend my decision and conduct. -25- Agency Response 00325 5. Appeal The defendant appealed on the grounds that the government's use of Sava violated the defendant's Sixth Amendment right to counsel because Danielson was represented by counsel when Sava engaged him in conversation and the government used the information against Danielson at trial. Danielson argued that the government used Sava to penetrate the defense camp and gain information about Danielson's strategy in order to prepare to counter it at trial; that the government injected information gained from the informant into its case, both in the presentation of the prosecution's case and in cross-examination of Danielson and other defense witnesses; and that the government failed to disclose the taped statements of Sava and Danielson in violation ofP5ule 16.35 The g0vemmer1t's`response was similar to its post--trial motions before the district court. At oral argument in the Ninth Circuit, Kent again asserted the officers allowed him to listen A only to portions of the audio tapes, or directed him to portions of the transcripts, that related to obstruction or a new crime. He asserted, "The transcripts that came into my office were filed away and were never looked at until this case was concluded."3' The Court engaged Kent in the following questioning: A The Court: And when you say direct your attention to that portion ofthe transcript [that . constituted new crimes,] you would then read that portion of the transcript? Kent: Just those portions, correct. The Court: And would you have on your desk, when you read those portions would you have the full transcript? 35 The defendant also appealed on the grounds that the district court erred in admitting evidence of three other incidents as "other act" evidence under Fed. R. Evid. 404(b). 36 325 ma at 1064. A . -26- Agency Response I 00326 Kent: No, I would not. The Court: That is to say,?you had a redacted transcript? i Kent: Yes I dealt with redacted transcripts. The Cotutz That is to say you never had a page in front [of you] that had on it any typewriting that was material that you weren't supposed to have your attention directed to? Kent: Correct" a. Ninth Circuit Opinion on Sixth Amendment Violation The Ninth Circuit found that the prosecution team in this case "de1iberately and affirmatively took steps, while Danielson was represented by counsel, that resulted in the prosecution team's obtaining privileged information about Danielson's trial strategy. The Ninth Circuit concluded that Danielson's Sixth Amendment right to cotmsel attached when the government initiated adversarial proceedings against him. As such, government actions that deliberately elicited incriminating statements from an indicted defendant in the absence of counsel are improper under the Sixth Amendment. The Court stated, however, that the right to counsel is "offense-specific," so Danielson therefore had a right to counsel only on the offenses for which he had been indicted, and on any other offenses that could be considered the "same 0ffense." The court found that the government's use of Sava to obtain statements regarding separate_0ffenses for which Danielson had not been indicted, such as subomation of perjury and jury tampering, was therefore not an I 37 325 F.3d at 1064. Agency Response 00327 impermissible intrusion into the attomey--client privilege and did not violate Danielson's Sixth Amendment rights. The court found, however, that the infomation Sava sought and obtained was not limited to infomation regarding separate offenses. Rather, the tape recordings contained discussions of Danielson's trial strategy. The Ninth Circuit opinion reviewed the government's use of Sava in detail, finding numerous examples of reports that contained trial strategy information and which were provided to Kent. For example, Sava's first meeting with the police on December 8, 1999 was summarized by Trooper Owren in a memorandum dated December 14. A box at the top ofthe cover A sheet indicated that the memorandum was routed to Kent. The memorandum includedstafements by Sava that Danielson would rely, as a part of his defense strategy, on the existence of a lease agreement- rather than a sale for the deer and elk antlers. Another example was the transcript of a January 13, 2000 meeting between Sava and Danielson, which was forwarded to Kent on February 14, 2000 with a cover memorandum stating: "transcribed excerpts of the conversation regarding Danielson talking about the upcoming trial." In this transcript, Danielson stated several times that he did not plan to plead guilty and would rely on the government's obligation to prove its case beyond a reasonable doubt, and that he intended to blame people who worked for him for any illegal acts.38 . The Court recounted two other examples of such information forwarded to Kent: (1) A January 5, 2000 memorandum by Trooper Owren about Danielson's plan to argue at trial that he had leased, rather than sold, antlers he was charged with selling. The Court found that the memo did not contain any evidence of obstruction of justice or other new crimes; and (2) A January 22, 2000, transcript . of conversations between Sava and Danielson, in which the Court found that Sava asked Danielson about his trial strategy and Danielson discussed his trial strategy as to Count Two of the indictment and indicated that he intended to testify at trial. He also stated that he planned to testify that the money he was paid for a second, illegal deer was actually the fee for his wife to accompany him on the hunt. There was also discussion of a letter that Danielson had written to his attorney. il -28- Agency Response 00328 The court analyzed the government's actions under Weatherford v, Bursey, 429 U.S. 545; 1977), in which the plaintiff sued a law enforcement agent who had worked as an undercover agent on the plaintiff criminal case for violating his Sixth Amendment rights. The plaintiff was arrested with the police officer when they jointly vandalized a Selective Service office. After the arrest, the officer continued to act as if he were a co-defendant, and even retained an attorney. The officer met twice with the plaintiff and his attorney and trial strategy was discussed at those. meetings. The district court in Weatherford found that the officer had not sought to be invited to the meetings and . that he had not initiated any topics of discussion at the meetings. It therefore concluded that the plaintiffs Sixth Amendment rights had not been violated. The Fourth Circuit reversed andheld that "whenever the prosecution knowingly arranges or permits intrusion into the attorney--client relationship the right to counsel is sufficiently endangered to require reversal and a new trial." The Supreme Court reversed the Fourth Circuit and held that, where "there was no purposeful intrusion," "no communication of defense strategy to the prosecution," and "no tainted evidence," there was no Sixth Amendment violation. The Supreme Court explained that the officer would have jeopardized his undercover status if he had not participated in the meetings. ln addition, it emphasized that the officer had not passed the information he gained to any of his superiors or the prosecution team. The Ninth Circuit concluded thatKent's actions were materially different ffom Wecztheq'ord. First, it found that, unlike in Weatherford, Sava "'purposeii1lly intru[ded]' himself into the attomey- client relationship." Sava initiated conversations about trial strategy and nothing would have been eopardized by refraining from such questions. The court stated that Sava was not a passive listener in his conversations with Danielson, but rather asked direct questions designed to elicit trial strategy -29- Agency Response 00329 information. In addition, the court focused on the fact that, after Sava reported privileged trial strategy infomation to police, the prosecution team was on notice of a potential Sixth Amendment violation. The court found that, although Kent stated in his affidavit that he instructed Sava . sometime in December not to solicit trial strategy information from Danielson, it was clear that Sava ignored whatever instruction he received. The court added that there was nothing in the record to indicate that any such instruction was repeated after it became apparent that Sava was continuing to gather and report privileged information about Danielson's trial strategy. Second, the court found that, unlike in where the ofticer did not communicate the defense strategy to the prosecution team, "Sava reported regularly and extensively to the police workmg with Kent what he had learned about Daniels0n's trial strategy? This information was then sent on to Kent. Finally, the court addressed the issue of prejudice. The court adopted the position that, where a defendant makes a showing that a government informant acted affirmatively to intrude into the attomey-client relationship and thereby obtained privileged information, the burden shifts to the government to show that there has been no prejudice to the defendant as a result of these communications. The government must therefore establish that it did not use the privileged information, either directly or indirectly. The court acknowledged that it is a heavy burden on the government to prove that itsevidence was derived from a legitimate source wholly independent of the privileged information. The court stated, however: We do not believe that adopting [this] approach imposes an unreasonable burden on the prosecution. It is true that once the government has improperly interfered with the attorney- elient relationship and thereby obtained privileged trial strategy information, the prosecutor has the "heavy burden" of showing non-use. But the prosecution can avoid this burden either by not improperly intruding into the attomey-client relationship in the first place, or by insulating itself from privileged trial strategy information that might thereby be obtained. -30- Agency Response 00330