US v. Noriega

• Decision Date: 03 May 1991
• Docket Number: No. 88-0079-CR.,88-0079-CR.
• Citation: 764 F. Supp. 1480
• Parties: UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, Defendant.
• Court: U.S. District Court — Southern District of Florida

764 F. Supp. 1480

UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, Defendant.

No. 88-0079-CR.

United States District Court, S.D. Florida.

May 3, 1991.

COPYRIGHT MATERIAL OMITTED

Norman A. Moscowitz, Sonia Escobio O'Donnell, Marcella S. Cohen, Asst. U.S. Attys., for plaintiff.

Frank A. Rubino, Coconut Grove, Fla., Jon May, Miami, Fla., for defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT

HOEVELER, District Judge.

This action arises out of the government's review of Defendant Manuel Noriega's telephone conversations recorded by officials of the prison where Noriega is presently detained pending trial on various narcotics-related offenses. Noriega, asserting violations of the Sixth Amendment, the Fourth Amendment, Title III of the Omnibus Crime Control and Safe Streets Act, and Rules 16 and 17 of the Federal Rules of Criminal Procedure, moves to dismiss the indictment. With respect to the claims asserted under the fourth and sixth amendments, the court finds that the defendant's constitutional rights were not violated. The Title III claim, based on improper disclosure of intercepted communications, is not actionable in the context of a motion to dismiss and therefore not properly before the court. The court finds that the prosecution's method of obtaining the recordings and its failure to disclose these conversations in the course of discovery violated Rules 17 and 16, respectively, but that no resulting prejudice has occurred. Accordingly, the motion is denied.

I. BACKGROUND

Noriega has been detained at the Metropolitan Correctional Center ("MCC") in Miami since January 28, 1990. His trial is scheduled to commence on July 22, 1991. The present controversy concerns the government's review of Noriega's conversations, including attorney-client discussions, recorded at MCC and obtained by the government through subpoenas served on the prison's custodian of records.

For security reasons, MCC automatically records and randomly monitors all inmate calls made from the institution's telephones, with the exception of properly placed calls to an attorney. The recording system at MCC is set up so that all inmate telephones are linked to a central recording system which automatically records all calls placed through these phones. Since all recording is conducted through the central mechanism, the monitoring and recording capabilities on the inmate phones cannot be "shut-off" on an individual basis. Inmates who wish to make an unmonitored and unrecorded call must therefore use a staff telephone which is not linked to the central recording system.

Because Noriega is physically segregated from the other inmates and not permitted to use the inmate phone banks located in the main facility, a telephone was installed outside the door of his cell. Whenever Noriega used the telephone, he would give the guard the name and phone number of the person he wished to call. The guard, after dialing the number and confirming the identity of the voice on the other end, would then hand the receiver to Noriega through an opening in the door. Initially, Noriega's telephone did not have monitoring and recording capability because his phone was also used by prison guards. However, about two to four weeks after his arrival at MCC, this phone was replaced by a second telephone which was connected to MCC's central recording apparatus so that all calls placed on it were automatically taped. A sticker affixed to this second telephone advised Noriega that all calls made on that phone, with the exception of "properly placed" calls to an attorney, were subject to monitoring and recording by the Bureau of Prisons.

A telephone log maintained by MCC reveals that Noriega made over 1,400 telephone calls from February 1, 1990 through November 8, 1990, many of which were to Noriega's attorneys and other members of his defense team. As all of these calls were made through the telephone installed outside of Noriega's cell, the vast majority were recorded.

On February 8, 1990, the government served the first of eight subpoenas upon MCC for production of Noriega's tape-recorded conversations.¹ The tapes were sought for potential evidentiary and investigatory value in the underlying criminal prosecution. The subpoenas were actually subpoenas duces tecum, commanding the custodian of records at MCC to appear and testify in the courtroom of this division on various dates, beginning February 15, 1990 and running through August 18, 1990, and to bring telephone logs and tape recordings of Noriega's telephone calls, as well as telephone logs and tape recordings of any calls made by any inmate on behalf of Noriega. In fact, no hearings in this case were scheduled on the dates and times listed on the subpoenas. Moreover, although the subpoenas called for production at the courtroom, the tapes were picked up at MCC by a Drug Enforcement Agency ("DEA") case officer. Neither the defendant nor this court were aware that these subpoenas had been issued.

Before the tapes were reviewed, the trial team took steps to shield itself and its case agents from any attorney-client conversations that might be contained on the tapes. Pursuant to procedures established by the prosecutors and memorialized in a memorandum dated March 6, 1990, the tapes were to be screened first by an "outside" Spanish-speaking DEA agent unconnected with the case to ensure that no attorney-client conversations were on the tapes. If a tape consisted of attorney-client communications, the outside agent was to immediately seal and segregate that tape from the others. If only portions of a tape contained attorney-client communications, then only a sanitized copy or transcript would be provided to case agents and prosecutors.

Beginning in April, 1990, the outside agent reviewed an initial batch of 21 tapes produced by MCC. The agent then made an edited set of these tapes to include only those conversations potentially relevant to the case. This edited set was then turned over to a DEA case agent assisting the prosecution. A second batch of 71 tapes was then obtained from MCC. None of these additional tapes were screened by the outside agent, although some and possibly all were screened by an official at MCC. Twenty-two tapes out of this second batch were reviewed by Jose Blandon, a government witness in the case against Noriega. Additionally, 31 tapes (including the 22 reviewed by Blandon) were turned over to a DEA case agent, who listened to only some of these tapes. Finally, a last batch of 70 tapes was obtained by the DEA. However, none of these tapes were reviewed, as the prior batches had yielded nothing of apparent value to the prosecution. Thus, out of 162 tapes subpoenaed, only 52 tapes were actually examined.²

The Blandon review occurred under the direction and supervision of several DEA case agents who were subsequently briefed by Blandon on the results of his review. One of the conversations Blandon heard involved an attorney-client discussion of two potential government witnesses, whom Noriega had learned of from an article in The Miami Herald newspaper. Blandon conveyed the substance of this conversation to at least one of the DEA agents, Steven Grilli, and also described this conversation in a memo he prepared for the prosecution's use. Grilli did not discuss the attorney-client conversation or the results of the Blandon briefing with the prosecutors, apparently because he viewed the information obtained as essentially worthless.

At some point, Grilli sent a copy of the Blandon memo to Pat Sullivan, the lead prosecutor. Sullivan proceeded to read the memo but stopped when he came upon the first few sentences of the attorney-client conversation described by Blandon. Sullivan then got in touch with the outside agent and instructed him to conduct a further check to determine whether the particular tape containing this discussion consisted of any attorney-client conversations. The agent erroneously reported back that there were no attorney-client conversations on the tape. Nonetheless, Sullivan stated that he never resumed reading the memo.

In addition to the attorney-client discussion memorialized in the Blandon memo, a few other attorney-client conversations are contained in the tapes subpoenaed from MCC and reviewed by the DEA agents, as revealed by summaries of these tapes submitted by the government in connection with the motion at hand. Thus, despite the screening procedures put in place, some of Noriega's attorney-client conversations slipped into the hands of the DEA case agents assisting the prosecution.

The government's examination of Noriega's telephone conversations was brought to light when copies of some of the tapes subpoenaed by the government were obtained by the Cable News Network ("CNN") from an undetermined source. Network representatives, intending to air a story on the government's actions in this regard, approached Noriega's lead attorney, Frank Rubino, and played portions of the tapes in its possession. Among the conversations played for Rubino was the attorney-client discussion reviewed by Blandon. Noriega subsequently moved to dismiss the indictment, contending principally that the government's invasion of the defense camp violated his Sixth Amendment right to counsel. Blandon's exposure to Noriega's conversations, and the effect that exposure might have on his appearance as a witness, is an issue not presently before the court.

II. DISCUSSION

A. The Sixth Amendment Right to Counsel

In determining the Sixth Amendment claim, the threshold inquiry is whether Noriega had a reasonable expectation of privacy in his conversations with his defense team recorded at MCC. Under the established law of the Eleventh Circuit, the Sixth Amendment protects attorney-client communications from government intrusion only if they are (1) intended to remain confidential and (2) under the circumstances were reasonably expected and understood...