United States v. Meinster
| Decision Date | 23 October 1979 |
| Docket Number | No. 79-165-Cr-JLK.,79-165-Cr-JLK. |
| Citation | 478 F. Supp. 1131 |
| Parties | UNITED STATES of America, Plaintiff, v. Robert Jay MEINSTER et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Dennis J. Cogan, Philadelphia, Pa., George A. Kokus, Miami, Fla., for Robert Jay Meinster.
Arnold C. Stream, Monasch, Chazen & Stream, New York City, for Robert Elliot Platshorn.
Melvyn Kessler, Miami, Fla., for Lynne Platshorn.
Rebekah J. Poston, Miami, Fla., for Eugene Arter Myers.
Samuel Sheres, Hallandale, Fla., for Randall Gene Fisher.
Gerald Kogan, Miami, Fla., for Modesto Echezarreta-Cruz.
Michael L. Brodsky, Miami, Fla., for Richard Elliot Grant, Jr.
Arthur W. Tifford, Miami, Fla., for Mark Stephen Phillips.
Denis Dean, Miami, Fla., for Cari Jerry London.
Bruce H. Fleisher, Coral Gables, Fla., for Ronald Benton Elliot.
ORDER DENYING EVIDENTIARY HEARING ON PROSECUTORIAL MISCONDUCT
This matter arose upon the motion of defendants Meinster and Robert Platshorn for an emergency evidentiary hearing to determine prosecutorial misconduct. The government opposes the defendants' motion, denying the occurrence of any such misconduct. Neither the defendants' motion nor the government's response cites any relevant case law. Apparently, the basis for the defendants' motion is their contention that (1) conversations among Harry Brown (a government informant) and the two defendants, and (2) conversations among Drew Gordon (an alleged government informant), the defendants, and Arnold Stream (Platshorn's attorney) violated the defendants' right to effective assistance of counsel in conducting their defense.
Defendants request that they be granted a separate evidentiary hearing on their allegations. There is, however, no need for a further hearing on these matters. Defense counsel have already had more than an ample opportunity to investigate the circumstances of Brown's meetings with Meinster and Platshorn in the extensive suppression hearing which preceded the bond revocation hearing.
With respect to the allegations involving Gordon, Atlee Wampler (the head of the Miami Organized Crime Strike Force) appeared in court on September 19 before all defense counsel and explained the circumstances surrounding the government's contact with Gordon. Wampler and others who had contact with Gordon have since filed sworn affidavits with the Court which restate the circumstances of their contact with Gordon.
With respect to the alleged prosecutorial misconduct involving Brown, the Court has already ruled from the bench that the testimony of Brown and the use of his tape-recorded conversations with the defendants in the bond hearing did not violate Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The reasons for the Court's prior ruling were that (1) Massiah only proscribed use of allegedly improper testimony at trial and not in a bond hearing (which does not decide the guilt or innocence of the defendants); (2) in the instant case, Brown's testimony and the tape recordings were not the product of an ongoing investigation by the prosecution team, but rather the by-product of an independent investigation by an independent team of government attorneys; and (3) the prosecution team has never been informed of the results of this separate investigation. Hence, the Brown testimony and tape recordings were not the fruits of conduct which violated the defendants' Sixth Amendment right to effective assistance of counsel. The Court now also holds that no prosecutorial misconduct was evident.
With respect to alleged prosecutorial misconduct involving Gordon, a purported government informant, the defendants contend that Gordon insinuated himself into a conference among the defendants and one of their attorneys. In his affidavit, Platshorn's counsel charges that Gordon's presence "constituted a carefully engineered, specifically designed scheme by the office of the Federal Prosecutor — and probably the Department of Justice — to cause a Government agent to perpetrate sic the confidentiality of that meeting in order to provide the Government with advance knowledge of our tactics and defense plans." For the sake of this motion, the Court assumes that, as stated by Stream, defense strategy was discussed at the conference in which Gordon was present. Stream asserts, not in his motion but in his affidavit, that these facts require "the dismissal of these proceedings on grounds of debasement of the law enforcement system." Presumably, dismissal is the ultimate remedy the defendants seek. Because of the disposition of this motion, the Court does not reach the question of whether such a drastic remedy constitutes a proper remedy for the alleged prosecutorial misconduct.
In Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), a convicted defendant filed a civil complaint under 42 U.S.C. § 1983 against an informant and his superior alleging a deprivation of the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. In that case, the Supreme Court held that the presence of a government informant at a conference between the defense attorney and his client did not constitute a per se violation of the Sixth Amendment. Reviewing prior cases, the Court noted that "the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial." 429 U.S. at 552, 97 S.Ct. at 842 (emphasis added). The Court also dismissed an argument strikingly close to the instant defendants' argument:
429 U.S. at 555-56, 97 S.Ct. at 844 (emphasis added).
Finally, the Court concluded that "there being no tainted evidence in this case, no communication of defense...
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