U.S. v. Ofshe

• Decision Date: 01 June 1987
• Docket Number: No. 86-5351,86-5351
• Citation: 817 F.2d 1508
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ronald Arthur OFSHE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1508

817 F.2d 1508

56 USLW 2011

UNITED STATES of America, Plaintiff-Appellee, v. Ronald Arthur OFSHE, Defendant-Appellant.

No. 86-5351.

United States Court of Appeals Eleventh Circuit.

June 1, 1987.

Mel Black, Miami, Fla., for defendant-appellant.

Leon B. Kellner, U.S. Atty., Neil Karadbil, Sonia O'Donnell, David O. Leiwant, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and VANCE, Circuit Judges, and ATKINS ^*, Senior District Judge.

ATKINS, Senior District Judge:

After entering a conditional plea of guilty, Ofshe appealed from an order denying his motion to dismiss the Indictment and an order denying his motion to suppress evidence. We find that (a) appellant's constitutional rights were not violated by the government's misconduct, and (b) the motion to suppress was properly denied. Thus, we AFFIRM.

I. STATEMENT OF FACTS

On or about December 2, 1982, Agent Sternaman, Drug Enforcement Administration (DEA), applied to the Honorable Norman Roettger for a warrant to search the premises at 2216 S.W. 60th Terrace, Miramar, Florida. ¹ Upon review, Judge Norman C. Roettger issued the warrant; unfortunately, it was also directed "To Honorable Norman C. Roettger, United States District Judge," and commanded him to search the premises within 7 days. On December 3, 1982, federal agents executed a search based upon this warrant at 2216 S.W. 60th Terrace, Miramar, Florida, and found four and one-half pounds of cocaine in a safe located in appellant's office. Along with the cocaine, the agents found other drugs and certain documents which detailed appellant's drug trafficking. In addition, the agents found other evidence, outside the safe, throughout the office.

Agent Sternaman had no direct knowledge or information regarding any illegal activities on the premises. Instead, he relied upon information supplied to him by another agent, Special Agent Thomas L. Chapman, who worked for the North Carolina Office Bureau of Alcohol, Tobacco & Firearms (ATF). Like Sternaman, Agent Chapman had no direct knowledge of any illegal activities. Rather, this agent obtained information from an unnamed informant who informed Chapman that he had obtained an unspecified amount of cocaine from an unspecified person in an unspecified manner from an office inside the premises on an unspecified date.

Agent Sternamen's application for a search warrant failed to inform Judge Roettger that the confidential informant had six prior convictions and was incarcerated and awaiting trial on charges of conspiracy to traffic methaqualone. The government later disclosed the identity of the confidential informant, Junior Gambill, when he was to be utilized as a witness. This disclosure included a recitation of his prior felony convictions.

In December, 1982, appellant Ofshe was arrested in Miramar, Florida, for possession with intent to distribute cocaine. He retained the services of Mel Black, Esquire, who handled the bond hearing, arraignment, initial discovery review and the preparation of a motion to suppress. Mr. Black still represents Ofshe.

In February, 1983, Ofshe retained Marvin Glass, Esquire, to act as co-counsel, and informed Black of his decision. Glass indicated that he would handle all communications with the government, including plea negotiations, and that Black would prepare the case for trial, and would investigate and file appropriate motions. This breakdown of duties was confirmed in a meeting between Black and Glass in March, although Black remained sole counsel of record until July 1, 1983.

Thereafter, while still acting as counsel for Ofshe, Glass contacted the United States Attorney's Office in Chicago, Illinois, and learned he was a target of the "Greylord" ² investigation. Being keen to diminish his own criminal responsibility, Glass offered to provide information to and cooperate with the government in identifying and investigating suspected drug traffickers. Therefore, Glass periodically met with Assistant U.S. Attorney (AUSA) Turow to provide useful information about certain alleged criminal activities.

Later, on June 8, 1983, Glass mentioned Ofshe as a possible target during a meeting with Turow. When Glass indicated that he was currently representing Ofshe in Fort Lauderdale, Turow warned him not to reveal any privileged attorney-client conversations but encouraged him to proceed as an informant. Glass then began to detail activities regarding certain individuals, whom he had met through Ofshe, who discussed a money laundering scheme. In addition, Glass told AUSA Turow about Ofshe's request that Glass find a buyer for "a ton of marijuana."

AUSA Turow sought and received permission to place a Nagra body bug on Glass and conduct an electronic surveillance of the conversations between Glass and his client. These conversations included some unplanned discussions about his Florida case including the timing and likelihood of success of the motion to suppress. This electronic surveillance was done with Glass' consent while acting as Ofshe's attorney and as a "cooperating individual" for the government. To guard against improper conduct, AUSA Turow testified that the agents installing and monitoring the body tape were given very strict guidelines to instruct Glass not to violate any attorney-client privilege. ³

Glass, of course, was not told at the time of the electronic surveillance that he had to withdraw from representation of Ofshe. Indeed, Glass was not told to withdraw for several months. Eventually, however, he was told to withdraw, but the United States Attorney did nothing to confirm his withdrawal or otherwise determine the status of the case. Significantly, the government did not file a motion to disqualify Glass or take any other action to inform the defendant of the conflict of interest, although it was aware of the conflict since June 8, 1983. Thus, the government allowed the ineffective representation to continue for over 10 months.

In February, 1984, Judge Gonzalez, who was presiding over Ofshe's case, learned that Glass had been enlisted as an informant against his client and ordered the United States Attorney to disclose this fact to the defendant. Glass appealed Gonzalez's decision and did not move to withdraw until April, 1984. Even then he continued to hide the fact that he was working as an informant, with governmental consent, until February, 1985. Since the court file was sealed, defendant Ofshe could not discover the reasons for Glass' withdrawal or about the appeal taken by Glass.

Although Black was prepared for trial in April of 1983, Glass instructed him to file a motion for continuance which was to include a waiver of speedy trial. Later, the day after Glass began giving information to the United States Attorney in Illinois, Glass had Ofshe execute a written formal waiver of speedy trial. At Glass' instructions, additional continuances and waivers of speedy trial were filed in May and June, 1983. Nevertheless, by July, 1983, both sides had announced at calendar call that they were ready for trial.

On June 28, 1983, the parties appeared at court before Judge Gonzalez for the actual trial. On that day, AUSA Hursey advised that he needed a few days to locate his witnesses. Glass and Hursey then left the courtroom and went into a private conference without the presence of Ofshe or Black. During their private meeting, Glass convinced Hursey to dismiss the Indictment based on Glass' representation that Ofshe would cooperate and provide the information. Glass further offered to waive reindictment and allow the government to file charges by Information. Subsequently, Hursey returned to the courtroom and moved for dismissal of the Indictment without prejudice. The motion was granted by the court.

As Glass, Ofshe, Black, and private investigator David Waters were leaving the Courthouse, they discussed various matters which required legal attention since Ofshe's case had been dismissed. Glass stated he would secure all property originally seized or given to secure the personal surety agreement, including an automobile that was in forfeiture. Based on that representation, Black did no further work on the forfeiture proceeding.

Later, the government reinstituted criminal proceedings against Ofshe. In August, 1983, Black received a Notice of Arraignment on an Information and called Glass who told him that would take care of it. Black then prepared a motion to dismiss the Information, but did not file it because Hursey told him that Glass had agreed to waive the filing of an Indictment.

Black testified he next appeared on December 9, 1983 at a sounding of the case for trial. He then spoke to Glass who told Black he would have another attorney appear at court. Neither Glass nor any other attorney appeared. Fortunately, the case was taken off the calendar and continued through February, 1984.

In February, 1984, the defense announced they were ready for trial, however, the case was not set for trial until March, 1985. Ofshe did not request any continuances from January, 1984 until March, 1985. His request for continuance from the March, 1985 trial setting was based upon problems in reassembling the dormant file, locating missing witnesses, discovering and investigating the reasons for Glass' in camera appeal from Gonzalez's order, and researching the grounds for the motion to dismiss.

Black first learned, on February 16, 1985, through a letter from Chief Assistant United States Attorney Joseph McSorley that Glass was a government informant and had worn a body bug during his conversations with his client, Ronald Ofshe, on June 14, 1983. Naturally, Black was concerned. Ofshe was also concerned.

AUSA Turow testified in detail about the procedures employed to assure there would be no violation of any attorney-client privilege. He stated that he and his superiors discussed the matter...