Vol. 10, No. 40	Covering Cases Published in the Advance Sheets through October 6, 2003

The Edwin Wilson Case: Another Saga of Government Lies and Deceit

• In Wilson, Judge Lynn Hughes of the S.D.Tex. threw out a 1983 conviction of former CIA operative, Edwin Wilson, for selling tons of explosives to Libya, after finding that prosecutors and high level Government officials knowingly used false testimony and deliberately hid evidence that supported Wilson’s defense that he was acting under the auspices of the CIA. Judge Hughes’ “Opinion on Conviction” is an explosive and hard-hitting expose of Government deceit and cover up at its worst.

Fourth Amendment Issues

• In McCain, Judge Patel of the N.D.Cal. held that a warrant affidavit, which suggested that the probable cause information was received from a “confidential reliable source” when in fact the information came from a wiretap, was so misleading as to constitute a reckless disregard for the truth; and accordingly required suppression of the evidence seized on the basis of that warrant.
  
  
• In Perkins, the Eleventh Circuit granted a suppression motion, holding that the police had unreasonably prolonged a traffic stop of two defendants, when they had no reasonable basis to detain them; and it specifically rejected the Government’s contention that the extreme nervousness and rapid breathing of one of the defendants established any reasonable suspicion of criminal activity.

Guidelines

• In Dowdell, Judge Michael of the W.D.Va. held that, even though the Government and the defendant made a mutual mistake in the plea agreement about which version of the Guidelines would govern the defendant’s sentence, and even though that mistake meant that the defendant’s sentence would be increased from a sentencing range of 78-97 months in prison to life in prison, the resulting discrepancy could not serve as the basis for any modification of the defendant’s sentence.
  
  
• In Kim, Judge Patterson of the S.D.N.Y. used the occasion of a relatively small downward departure to voice some strong criticism of the recent efforts by Congress to intimidate Federal judges by removing them from any meaningful role in the sentencing process and by subjecting them to “demeaning and unseemly treatment” - actions which, he argued, only increase the already “immense power” of the “less competent” Assistant U.S. Attorneys at the expense of a fair dispensation of justice.
  
  
  
• The Ray case from the D.Mont. presents an amusing contretemps between the U.S. Attorney’s Office and the Chief Judge from that district. Shortly after passage of the Feeney Amendment, Judge Molloy issued a standing order requiring the U.S. Attorney’s Office to assemble all the data required to meet the new detailed reporting requirements about each sentence imposed by every Federal judge. The U.S. Attorney’s Office vehemently objected to that job and asked Judge Molloy to rescind his order forthwith. In this Order, Judge Molloy politely declined to rescind or modify his original order - an act of defiance that will probably lead to a siege of the Montana courthouse by Federal troops.

U.S. v. Wilson, Crim. No. H-82-139 (S.D.Tex. 10/27/2003) (Judge Hughes)

Judge Hughes’ opinion in this case reads more like a novel about Machiavellian politics and intrigue rather than a legal decision. Sadly, it is a true and disturbing tale of massive deceit and calculated lies at the highest echelons of our own Government to obtain a conviction and divert attention from covert CIA activities. It is also one of the most stunning and scathing judicial indictments of prosecutorial misconduct and Government cover-up that we have ever seen.

In the late 1970s, Col. Muammar Gaddafi of Libya was the centerpiece of America’s then war on terrorism; and, typically, opposing minions within the Government were at odds about how best to deal with him. In a scenario that sounds vaguely familiar to our plans for other dictators deemed to represent the Axis of Evil, some Government agencies and officials wanted to buy Gaddafi off (but secretly, of course, so Israel and the American public wouldn’t find out); while others wanted to assassinate him, take over the country, and install a model democracy in Libya.

In the midst of all the ensuing (and vacillating) Government games, a former CIA officer-turned-arms dealer, Edwin P. Wilson, was indicted for illegally shipping tons of explosives to Libya. Actually, the case had such great career-making potential that hungry prosecutors from three different jurisdictions jumped in and brought charges against Wilson. Ultimately, he was convicted in both Virginia and Texas of illegally exporting firearms to Libya. Then, federal prosecutors from the Southern District of New York filed even more elaborate charges against Wilson; and he was also convicted of those charges. In the end, Wilson was sentenced to some 52 years in prison for his Libyan related crimes. The 75-year old Wilson has now been in prison since 1982.

Although all three of Wilson’s convictions were closely intertwined, this decision deals only with the Texas conviction. In that case, Wilson’s defense to the charge of shipping explosives to Libya was really quite simple: he said that he had acted - at least implicitly - under the direction and authority of the CIA.

To rebut that claim and to disassociate itself from Wilson’s activities in Libya, the Government introduced an affidavit from Charles A. Briggs, the third highest ranking official of the CIA, in which Briggs swore that - with one minor exception - Wilson had stopped working for the CIA in 1971. The affidavit also stated that the CIA had not asked Wilson “to perform or provide any services, directly or indirectly” on behalf of the CIA.

After deliberating for one day, the jury asked the judge to re-read the Briggs affidavit to them. An hour after the re-reading, the jury found Wilson guilty.

Many years after his conviction, Wilson discovered, through various Freedom of Information Act requests, a series of internal Government documents that proved that the Briggs’ affidavit was false and that the prosecutors knew it was false before they used it at trial. Based on that discovery, Wilson had the good fortune to have David Adler, Esq. of Houston, TX appointed as his counsel.

Adler, himself a former CIA case officer, began the tedious task of poring over more than 300,000 classified records stored in a Washington, D.C. vault; and he filed a new appeal on Wilson’s behalf based on his discoveries. On viewing the evidence presented by Adler, Judge Hughes bluntly concluded that the Briggs’ affidavit was “nothing but a lie” - and on that basis he vacated Wilson’s Texas conviction as a gross miscarriage of justice.

Judge Hughes’ finding that the Briggs’ affidavit was “nothing but a lie” was just the beginning of his hard-hitting and far-ranging condemnation of the Government’s massive fraud and cover-up in this case. He noted, for example, that “[t]hree days after trial but before sentencing, the government admitted internally that the [Briggs’] affidavit was false” - but it did nothing to disclose that falsity to the defense or the courts. Caustically stating that “honesty come hard to the government,” Judge Hughes said that he had “identified about two dozen Government lawyers who actively participated in the original non-disclosure to the defense, the false rebuttal testimony, and the refusal to correct it.”

Significantly, burying the truth in this case wasn’t limited to the Government’s lawyers: in Judge Hughes’ mind, it was both directed and countenanced by “high public officials.” For example, Judge Hughes pointedly stated that “among the people who knew the government - through the CIA and the Department of Justice - was both failing to disclose records of Wilson’s work and offering a false affidavit was the CIA’s general counsel. Yet the Department of Justice refused his request to correct or not use the false affidavit.” He then concluded:

“In the course of American justice, one would have to work hard to conceive of a more fundamentally unfair process with a consequently unreliable result that the fabrication of false data by the government, under oath by a government official, presented knowingly by the prosecutor in the courtroom with the express approval of his superiors in Washington.”

Judge Hughes also berated the Government for its protracted attempts to hide and to justify what had happened, charging it with “mov[ing] the walnut shells constantly hoping that the pea will not be found.” Asserting that the pea had now been found, he concluded that “even with the Washington jig around the text of the [Briggs’] affidavit, the government cannot make its words coincident with the ‘truth, whole truth, and nothing but the truth’.”

In his impassioned conclusion, Judge Hughes stated: “America did not defeat the Axis because it locked up Japanese Americans. America did not defeat the Soviet Union because it tried to lock up its philosophic fellow-travelers here. America will not defeat Libyan terrorism by double crossing a part-time, informal government agent The government's preparation, presentation and preservation of false evidence are not the process that is due from the government. . . The government has no legitimate interest in buying or presenting false evidence from outsiders - it has less than none in lying to the Court itself.”

U.S. v. McCain, 271 F.Supp.2d 1187 (N.D.Cal. 2003) (Judge Patel)

The defendant in this case, Aisha McCain, was charged with conspiracy and violations of federal drug and weapons laws. After her arrest, she filed a motion to suppress evidence of drugs seized in a search of her apartment, arguing that the warrant affidavit was misleading. In applying for the warrant, the police inspector stated in his affidavit that he had “obtained information derived from a confidential reliable source (CRS)” that the defendant had a narcotics relationship with a cocaine trafficker “known to the CRS.” (Id., at 1189). The officer further described how the CRS had provided truthful information within the preceding two months which had led to the arrest of another cocaine dealer.

When McCain challenged the accuracy of the police officer’s affidavit, the Government “readily” admitted that the CRS described in the affidavit “was not a human informant but a federally authorized wiretap of the cellular phone of a co-defendant.” (Id.). The Government explained that it had deliberately described the wiretap as a CRS in order to protect the confidentiality of the Federal wiretap so as not to compromise the ongoing investigation. The Government also argued that if the magistrate had known that the CRS was a wiretap and not a person, he would have deemed the information even more reliable. (Id., at 1194).

Judge Patel rejected those arguments and granted the motion to suppress, stating that the Government’s argument “demonstrates a fundamental misunderstanding of the role of the warrant application in the protections established by the Fourth Amendment. . . . . ‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime’.” (Id., citing Johnson v. U.S., 333 U.S. 10, 14 (1948)).

Under the facts of this case, Judge Patel concluded that the police officer deliberately drafted his affidavit to conceal the existence of the wiretap - and in so doing the affidavit was “so misleading as to constitute a reckless disregard for the truth.” (Id., at 1193). In addition, she concluded that the officer’s genuine belief in the overall existence of probable cause did not excuse that reckless disregard for the truth. “In attempting to disguise the nature of the source, [the officer] summarized the conversations [heard in the wiretaps] in a manner which presented his own interpretations as direct factual evidence.” (Id., at 1195).

U.S. v. Kim, No. 03 Cr. 413 (RAP) (S.D.N.Y. 10/21/2003) (Judge Patterson)

In October, 2002, Steven Kim, a 57-year old naturalized citizen from Korea traveled to New York from his home in Illinois to draw attention to the suffering of the North Korean people. He went to the United Nations, jumped the fence, and fired several rounds of bullets from his revolver at the Secretariat building, at an 85 degree angle so no one would be hurt. He then tossed pamphlets in the air describing his native country as “a nation groaning under the weight of starvation and dictatorial suppression.” He then put his gun down and waited to be arrested.

Subsequently, Kim pled guilty to using a handgun to assault foreign officials, in violation of 18 U.S.C. § 112. His plea agreement stipulated that he would be sentenced for “aggravated assault” as defined in U.S.S.G. § 2A2.2, which resulted in an adjusted Guideline sentencing level of 19, and which called for a sentencing range of 30 tom 37months in prison. Under the terms of the plea agreement, neither party was permitted to seek a departure from the 30-to-37 month stipulated range.

To the great consternation of the Government (as evidenced by press reports of some amazingly brazen questions about how a Federal judge would dare to interfere with a sentencing structure designed by the prosecutor), Judge Patterson sua sponte questioned whether a person making a political statement had the requisite intent for the use of the aggravated assault Guideline; and he ultimately concluded that this case required a departure from § 2A2.2 because the crime committed was not within the “heartland” of that Guideline. Thus he departed downward by one level and imposed a sentence of 27 months.

Beyond that departure, Judge Patterson’s decision was particularly noteworthy because of his strong statements about what is wrong with the sentencing process, particularly in the context of the recently enacted Feeney Amendment. He wrote in part:

“In their latest attack on the third branch of the government, Congress not only attempted to restrict the ability of trial judges to impose fair sentences based on the particular facts presented in each case, but also . . . required that the Department of Justice report to Congress all cases in which the trial judge departs from the guidelines in non-cooperation cases. Evidently, Congress sought to deter any departures by the implicit threat to trial judges that, if they are considered for appellate positions, they will be subjected to the type of demeaning and unseemly treatment which nominees to the courts of appeals have undergone at the hands of Congress in recent years.

“The requirement that such departures be reported to Congress overlooks the obvious fact that trial judges are more qualified to determine a proper sentence than the assistant U.S. attorneys making the reports. U.S. attorneys already have immense power in the criminal justice process under the Sentencing Guidelines. In plea agreements, prosecutors determine what offenses are charged and what facts are stipulated. ‘Given that over 90 percent of federal criminal cases are the result of plea agreements, the plea negotiation process essentially has become a sentencing negotiation.’

“Trial judges have many more years of experience in sentencing, both under the United States Sentencing Guidelines and prior thereto, than the Assistant U.S. Attorneys (AUSA). Each trial judge sentences far more defendants in a year, than an individual AUSA prosecutes. Thus, the report on departures required by Congress are by a party less competent, less familiar with, and less involved in, the difficult decisions which the sentencing judge must make under the guidelines to perform the traditional role of an independent, fair and just arbiter. If, as a result of Congress' increasing pressure to eliminate any departures from the Guidelines, trial judges' sentencing decisions do not comply with the basic tenets of fairness and justice, the confidence of our citizens that the courts play an independent and fair role in the dispensation of justice will be diminished or lost. Then our system of justice will be regarded as subservient to the other branches of government - the system that prevailed for so many years behind the Iron Curtain.”

Copyright © 2003 Punch and Jurists, Ltd.