United States v. Orman

• Decision Date: 12 July 1976
• Docket Number: Crim. No. 76-CR-5.
• Citation: 417 F. Supp. 1126
• Parties: UNITED STATES of America, Plaintiff, v. Guler ORMAN and Gunay Orman, Defendants.
• Court: U.S. District Court — District of Colorado

417 F. Supp. 1126

UNITED STATES of America, Plaintiff, v. Guler ORMAN and Gunay Orman, Defendants.

Crim. No. 76-CR-5.

United States District Court, D. Colorado.

July 12, 1976.

James L. Treece, U. S. Atty., by Daniel T. Smith, Asst. U. S. Atty., Denver, Colo., for plaintiff.

Daniel J. Sears, Federal Public Defender, Denver, Colo., for defendants.

MEMORANDUM OPINION

WINNER, District Judge.

Let it be said at the outset that no member of the United States Attorney's staff had advance knowledge of any of the worrisome activities of Drug Enforcement Administration agents which I shall discuss presently. In fact, the Assistant United States Attorney in charge of this case, Daniel T. Smith, was aghast as the facts crept out, and at all times he has acted in complete accordance with the highest ethical standards. He did not participate in, and he reported to the Court posthaste developments in the case which I find have irretrievably prejudiced the rights of defendant, Guler Orman, and she is the only defendant before me because her sister, Gunay Orman, has not been apprehended.

At first glance, the case has to do with a routine one-count indictment charging distribution of heroin. The indictment was returned January 6, 1976, and an arrest warrant issued that date. Defendant, a 22-year old girl, was arrested in Paris, France, under that warrant, on February 4, 1976. She was willing to return to the United States immediately and voluntarily, but France insisted on prolonged extradition proceedings, and the extradition order did not issue for more than three months. Defendant was brought back to this country on May 10, 1976, and she appeared before the magistrate the next day. She was represented by Daniel J. Sears, the public defender, who arranged for the attendance of Turkish interpreters, defendant being a native of Turkey who speaks and understands only bits of English.

Two days later, a motion for release without bail was filed. The motion grounded on the proposition that defendant had been held in custody in Paris under arrest for the offense charged in this Court and that the interim time limits of the Speedy Trial Act do not permit exclusion of the times permitted to be excluded under 18 U.S.C. § 3161(h). The result is illogical, but it is inevitable under the clear language of the Act. The Congressional history is clear:

"Failure to commence the trial of a detained person under this section the interim time limits section results in the automatic review of the terms of release by the court and, in the case of a person already under detention, release from custody." United States Code Congressional and Administrative News, Vol. 4, 1974 Legislative Session, p. 7416.

United States v. Tirasso, (1976) 9 Cir. 532 F.2d 1298, 44 L.W. 2478, holds, and I agree:

"The language of section 3164 is straightforward. We find no ambiguity in its interpretation. . . . Under the clear language of the statute the reason for delay is irrelevant, so long as it is not occasioned by the accused or his counsel.

"The legislative history, moreover, makes it clear that release of the defendant from custody, and nothing less, is the sanction, for delay beyond the ninety day period. . . .

"Section 3164 does not speak of detention within a particular district. Nor does it provide any periods of exclusion for delay caused by the special circumstances of difficult cases. . . .

"In light of these facts, the wisdom of the result Congress has decreed is questionable. . . . But this result is the only one open to us under the plain terms of the statute.

"It is discouraging that our highly refined and complex system of criminal justice is suddenly faced with implementing a statute that is so inartfully drawn as this one. But this is the law and we are bound to give it effect."

The motion for release under the Speedy Trial Act was heard on May 14, 1976, and defendant was ordered released on an unsecured bond conditioned upon the surrender of her passport to the Clerk of the Court. This hearing produced the first glimmer of troubles to come. Finding a Turkish interpreter in Colorado is no small task, but two Turkish students attending Colorado School of Mines were located. They planned a return to Turkey May 20, 1976, but they weren't much help at the hearing they did attend because it was apparent that they had difficulty communicating with defendant. Whether the communication gap was due to varying dialects of Turkish or was a result of the students' limited understanding of English, I was unable to ascertain. However, defendant's cousin lives in the Denver area, and he agreed to let defendant live with him while awaiting trial and agreed to assist her with her language difficulties. This was a particularly helpful development in light of the fact that the only qualified interpreter of Turkish we could locate wanted to charge more than the Administrative Office was allowed to pay.¹

A flurry of motions ensued. Among the motions were a motion to disclose the identity of the informer and a motion raising Fourth, Fifth and Sixth Amendment questions. The motion to disclose the identity of the informer was heard first, and an in camera evidentiary hearing was held at which two DEA agents testified. They were in agreement with the Assistant United States Attorney and with each other that disclosure of the informer's identity would probably result in the death of one or more persons. However, it was manifest that under the principles of Roviaro v. United States, (1957) 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, and United States v. Martinez, (1973) 10 Cir., 487 F.2d 973, the informer's identity would have to be disclosed or the case would have to be dismissed because as was brought out in the in camera hearing the informer might provide defendant with a complete defense.

The Drug Enforcement Administration opted for disclosure of the informer's identity:

"THE COURT: The decision by the Drug Enforcement Administration to disclose the identity of the informer even though it puts human lives in risk is a considered decision that has been reviewed by appropriate authorities, and you are representing to the Court at this time that you will disclose it even though you have expressed the belief to the Court that one or more people may be killed as the result, is that correct?

"AGENT FARABAUGH: With extreme reluctance, we have reached that decision due to the other ramifications of the case, yes.

"THE COURT: You say `we have reached it,' at what level has the decision been reached?

"AGENT FARABAUGH: At the level of the regional director here in Denver and with headquarters' concurrence."

At a later hearing² it leaked out that the decision to disclose the informer's identity resulted from a short telephone conference call among John R. Enright, Farabaugh, Burke, Baker and a Mr. Cusack in Washington, made the day of the first in camera hearing.³ Enright testified that he knew little about the facts of the case; that he had never seen the file; that he didn't know what defendant was charged with; that he made no particular review of the facts; that the decision to issue a possible death warrant for innocent people didn't take very long to reach and that he knew of no jeopardy to human life if the informer's identity be disclosed. This conclusion and Enright's testimony were contradicted by the investigative file in the case, the testimony of the agents who did have familiarity with the case, the statement of the Assistant United States Attorney, and a confidential teletype of September 5, 1975, signed by Enright, in which he acknowledged the grave risk which would result from disclosure of the informer's identity and in which he said that the informer had agreed to supply information only "on condition the identity not be divulged." Additionally, the Drug Enforcement Administration investigative file shows a memorandum on October 10, 1975, in which Agent Baker repeated fears for the personal safety of the informer if the identity be made known.

The casual ease with which the decision to issue a possible death warrant for innocent persons was made by Enright, Farabaugh, Burke, Baker and Cusack is eye opening in light of the agonizing the public, the courts and the press have undergone in facing the question of imposing the death penalty for persons convicted of crimes after the fullest of due process. It was only July 2, 1976, that the Supreme Court upheld the death penalty for a limited group of convicted murderers. Gregg v. Georgia, ___ U.S. ___, 96 S.Ct. 2909, 49 L.Ed.2d ___, Proffitt v. Florida, ___ U.S. ___, 96 S.Ct. 2960, 49 L.Ed.2d ___, Jurek v. Texas, ___ U.S. ___, 96 S.Ct. 2950, 49 L.Ed.2d ___, Roberts v. Louisiana, ___ U.S. ___, 96 S.Ct. 3001, 49 L.Ed.2d ___.

The DEA Agents Manual directs that disclosure of an informer's identity be avoided whenever possible, and it says that if other more important investigations will be jeopardized, the decision may be to dismiss rather than to disclose. Nowhere in the Manual is there any mention of the possibility of dismissal to avoid breaking a DEA promise to hold secret an informer's employment by the DEA or of a possibility of dismissal to save a life. Sec. 6612.77 of the Agent's manual requires documentation of every contact with an informer. It requires that "Every agent is responsible for insuring that any information derived from a cooperating individual is documented . . .." I mention this because there is no documentation of certain claimed contacts between the informer and DEA agents which are most important to the resolution of this case. The agents testified to several all important contacts — four or five of them — but none of the vital contacts are mentioned in the investigative file, and what was said at those times is crucial. The promises made the informer may be determinative of an entrapment defense or they may be pertinent to Sixth Amendment violations by the DEA. Why those...