US v. Lopez, No. CR-89-0687-MHP.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJames A. Twitty, Malibu, Cal., for Antonio Hernandez Escobedo
Citation765 F. Supp. 1433
PartiesUNITED STATES of America, Plaintiff, v. Jose Orlando LOPEZ, et al., Defendants.
Decision Date24 May 1991
Docket NumberNo. CR-89-0687-MHP.

765 F. Supp. 1433

UNITED STATES of America, Plaintiff,
v.
Jose Orlando LOPEZ, et al., Defendants.

No. CR-89-0687-MHP.

United States District Court, N.D. California.

May 24, 1991.


765 F. Supp. 1434
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765 F. Supp. 1435
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765 F. Supp. 1436
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765 F. Supp. 1437
John Lyons, Asst. U.S. Atty., Crim. Div., John T. Philipsborn, San Francisco, Cal., for National Ass'n of Crim. Laywers, amicus curiae

James A. Twitty, Malibu, Cal., for Antonio Hernandez Escobedo.

William L. Osterhoudt, San Francisco, Cal., for defendants.

OPINION

PATEL, District Judge.

INTRODUCTION

The past decade has witnessed a rapidly growing concern regarding the ethical conduct of lawyers. More and more citizens are lodging complaints alleging misconduct by attorneys, and state bar associations are becoming increasingly active in investigating and addressing such complaints.1 Even with these efforts, the public remains critical of existing mechanisms for lawyer discipline and has demanded more accountability from the legal profession.2

Rather than evading the new focus on lawyer misconduct, government attorneys and prosecutors often have found themselves at the center of it.3 The most recent report of the Attorney General's Office of Professional Responsibility indicates that there has been a notable increase in the number of complaints, both substantiated and unsubstantiated, of ethical violations by federal prosecutors.4 This growth undoubtedly arises from both the swift increase in the number of attorneys employed by the Department of Justice5 and

765 F. Supp. 1438
evolving efforts by the Department to limit the rights of suspects and defendants in certain areas.6 Many commentators have voiced concern over the increasing frequency of incidents of prosecutorial misconduct and the ineffectiveness or non-existence of sanctions designed to prevent such misdeeds.7

In the midst of these developments, the Attorney General has issued a policy directive which purports to exempt Department of Justice attorneys from one of the most widely-accepted and time-honored ethical rules governing the conduct of attorneys involved in litigation. The implementation of the Attorney General's policy in this case has resulted in the motion to dismiss now before the court.

BACKGROUND

Defendant Jose Orlando Lopez and co-defendants Antonio Hernandez Escobedo and Alfredo Tarango Olivas were indicted on December 15, 1989. Lopez, Escobedo and Olivas were charged with violations of 21 U.S.C. ? 841(a)(1) (distribution of cocaine and heroin); 21 U.S.C. ? 846 (conspiracy to distribute cocaine and heroin); and 18 U.S.C. ? 2 (aiding and abetting). The case was assigned to Judge Fern M. Smith, who denied bail to defendants Lopez and Escobedo on January 8, 1990.8

Shortly after the arrest of the three men, Escobedo's brother contacted attorney James Twitty concerning possible legal representation. Reporter's Transcript ("RT") 3/4/91, at 5. Twitty made several appearances on behalf of the three co-defendants at the outset of the case, primarily at bail and detention proceedings, while he endeavored to locate co-counsel. RT, 2/4/91 at 19; RT, 3/4/91, at 48. There is conflicting evidence in the record as to whether it was initially intended that Twitty would represent Escobedo or Lopez.9 In any event, Mr. Lopez eventually contacted attorney Barry Tarlow, RT, 2/4/91, at 19-20, who by January 11, 1990 was counsel of record for Lopez.10 Lopez alleges that Twitty was "not pleased" when he learned that Tarlow would represent Lopez, RT, 2/4/91, at 20, while Twitty contends that he enjoyed a good relationship with Tarlow. RT, 3/4/91, at 9-10.

The record indicates that the posture of the defendants' case and the dynamics of the litigation changed after Tarlow was retained to represent Lopez. At the outset of the case, Twitty discussed possible disposition of the charges against Lopez and Escobedo with Assistant United States Attorney ("AUSA") John Lyons, who was assigned to the case. RT, 3/18/91, at 88. Lyons made it clear to Twitty that he would consider a disposition of the case only if both Escobedo and Lopez agreed to enter into a plea agreement. RT, 3/4/91, at 57-58.

Upon entering the case, attorney Tarlow took the position that Lopez had a viable defense and discussions with the government concerning disposition of the charges against Lopez and Escobedo ceased. RT, 3/18/91 at 88-89. Tarlow avers that Lopez retained his services to "vigorously defend and try the case" and that Lopez had no interest in cooperating with the government. Tarlow Decl. at ? 10. Tarlow informed Lopez that it was his general policy

765 F. Supp. 1439
not to represent clients in negotiations with the government concerning cooperation and that if Lopez were interested in cooperation, Tarlow would not represent Lopez in any plea negotiations. Tarlow Decl. at ? 10

It also appears that the litigation became more combative after Tarlow arrived on the scene. RT, 3/4/91, at 14-15. Twitty alleges that Lyons did not like Tarlow, RT, 3/4/91, at 14, that the AUSA was "aggravated" by Tarlow's litigation style, RT, 3/4/91, at 53-55, and that there was "no question" that Lyons believed "that the case could be more easily resolved without Tarlow's participation." RT, 3/4/91, at 44. The principal source of conflict between Lyons and Tarlow in the early stages of the case apparently was a dispute concerning what discovery was to be made available to Tarlow. Second Decl. of Lyons at ? 33. In spite of this ongoing dispute, Lyons characterizes his relationship with Tarlow as generally "amicable." Second Decl. of Lyons at ? 38.

Responsibility for preparation of the defense case was divided among Tarlow, Twitty and Harold Rosenthal, who was retained to represent Olivas. Tarlow authorized both Twitty and Rosenthal to speak with Lopez when necessary in preparation of their cases. Tarlow Decl. at ? 18; Twitty Decl. at ? 13. Twitty appears to have been given responsibility for a "joint investigation" in the Lopez and Escobedo cases; as a result he generally spoke with both Lopez and Escobedo during his visits to FCI Pleasanton, where the two men were incarcerated awaiting trial. RT, 3/4/91, at 56-57.

Sometime in March or April 1990, Escobedo contacted Twitty by telephone and expressed interest in reopening discussions with the government concerning the possibility of plea agreements. RT, 3/4/91, at 16-17, 65. Lopez and Twitty differ substantially on what transpired following this call.11

Lopez contends that Escobedo contacted Twitty to determine if a plea offer made by the government at the outset of the case was still open. RT, 2/4/91, at 48. According to Lopez, Twitty communicated with the government and then apprised Escobedo and Lopez that the government would consider probation in return for cooperation, RT, 2/4/91, at 49-50, but a plea agreement would be possible only if both men were included. RT, 2/4/91, at 50.

Lopez maintains that he was encouraged by Escobedo to participate in new negotiations with the government. At the time, Lopez apparently was distraught over the safety of his children, whom he believed were being abused and in danger because of certain activities of their mother. RT, 2/4/91, at 22-23, 53-54. Lopez agreed to meet with the government to discuss a possible plea agreement in order to obtain early release and to be closer to his children. Id.; RT, 3/4/91, at 17.

Lopez asserts that he discussed with Twitty the possibility of meeting with the government and that Twitty told him it was not necessary for Tarlow, Lopez's attorney, to be present at any such meetings. RT, 2/4/91, at 21. Twitty also allegedly represented to Lopez that Lyons believed it would be easier to reach a plea agreement if Tarlow were not present. RT, 2/4/91, at 56-58. Lopez contends that he agreed to go ahead with the meetings without Tarlow because he believed it would be easier to work out a favorable disposition of the case in Tarlow's absence and because he was concerned about the expenses involved were Tarlow to participate. RT, 2/4/91, at 18-21.

Lopez also maintains that he was told by Twitty and Lyons that meeting with the government without Tarlow's consent or knowledge would not jeopardize his relationship with Tarlow. RT, 2/4/91, at 23-24. In addition, Lopez insists that he did not wish to have another lawyer represent him at the meetings with the government because he feared that as a result he would

765 F. Supp. 1440
lose Tarlow as his lawyer. RT, 2/4/91, at 56

Twitty concedes that, after receiving an initial telephone call from Escobedo regarding a possible plea agreement, he travelled from Los Angeles to Pleasanton to discuss the matter with Escobedo and Lopez without informing Tarlow of the upcoming meeting. RT, 3/4/91, at 17. Twitty further acknowledges that, prior to contacting the government on behalf of Lopez and Escobedo, he spoke with Lopez between five and nine times regarding the possibility of meeting with the government and that he made a second trip to Pleasanton to discuss plea negotiations with the two men; all of these communications were concealed from Lopez's attorney, Tarlow. RT, 3/4/91, at 22-23.

Twitty advised Lopez and Escobedo that if they wanted to be released so as to be closer to their children their only option was to cooperate with the government. RT, 3/4/91, at 18. However, Twitty denies encouraging Lopez or Escobedo to enter into negotiations with the government. Indeed, Twitty contends that he was not interested in negotiating a plea agreement and preferred to try the case. RT, 3/4/91, at 63.

Twitty asserts that he told Lopez and Escobedo to seriously consider whether they wished to proceed with plea negotiations and that he agreed to contact the government on their behalf only after they called him numerous times and threatened to communicate with the government directly. RT, 3/4/91, at 22-23, 92....

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16 practice notes
  • State v. Piorkowski, No. 15572
    • United States
    • Supreme Court of Connecticut
    • September 2, 1997
    ...prohibition is violated even when the defendant initiates contact with the government." (Citations omitted.) United States v. Lopez, 765 F.Supp. 1433, 1451-52 (N.D.Cal.1991), vacated, 4 F.3d 1455, 1464 (9th Cir.1993) (although Circuit Court of Appeals agreed prosecutor had violated ethical ......
  • U.S. v. Heinz, No. 92-8165
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 26, 1993
    ...law enforcement."), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990) (emphasis added); United States v. Lopez, 765 F.Supp. 1433 (N.D.Cal.1991) (to the same effect). The supervisory power theory "is premised on the inherent ability of the federal courts to 'formulate procedu......
  • Matter of Doe, No. CIV-90-1020-JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 4, 1992
    ...from overreaching opposing counsel and to ensure that the adverse party's attorney can function properly. United States v. Lopez, 765 F.Supp. 1433, 1447-1449 (N.D.Cal.1991). This inability to find authority for John Doe's proposition is understandable, however, as the ban on communicating w......
  • New York State Bar Association v. Federal Trade Commission, Civil Action No. 02-810 (RBW) (D. D.C. 8/11/2003), Civil Action No. 02-810 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 11, 2003
    ...objectives. Id. However, the Thornburgh Memorandum was not viewed favorably by the courts. See, e.g., United States v. Lopez, 765 F. Supp. 1433, 1453 (N.D. Cal. 1991), vacated on other grounds, 989 F.2d 1032 (9th Cir.), amended, 4 F.3d 1455 (9th Cir. 1993) (stating that the government's ass......
  • Request a trial to view additional results
16 cases
  • State v. Piorkowski, No. 15572
    • United States
    • Supreme Court of Connecticut
    • September 2, 1997
    ...prohibition is violated even when the defendant initiates contact with the government." (Citations omitted.) United States v. Lopez, 765 F.Supp. 1433, 1451-52 (N.D.Cal.1991), vacated, 4 F.3d 1455, 1464 (9th Cir.1993) (although Circuit Court of Appeals agreed prosecutor had violated ethical ......
  • U.S. v. Heinz, No. 92-8165
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 26, 1993
    ...law enforcement."), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990) (emphasis added); United States v. Lopez, 765 F.Supp. 1433 (N.D.Cal.1991) (to the same effect). The supervisory power theory "is premised on the inherent ability of the federal courts to 'formulate procedu......
  • Matter of Doe, No. CIV-90-1020-JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 4, 1992
    ...from overreaching opposing counsel and to ensure that the adverse party's attorney can function properly. United States v. Lopez, 765 F.Supp. 1433, 1447-1449 (N.D.Cal.1991). This inability to find authority for John Doe's proposition is understandable, however, as the ban on communicating w......
  • New York State Bar Association v. Federal Trade Commission, Civil Action No. 02-810 (RBW) (D. D.C. 8/11/2003), Civil Action No. 02-810 (RBW).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • August 11, 2003
    ...objectives. Id. However, the Thornburgh Memorandum was not viewed favorably by the courts. See, e.g., United States v. Lopez, 765 F. Supp. 1433, 1453 (N.D. Cal. 1991), vacated on other grounds, 989 F.2d 1032 (9th Cir.), amended, 4 F.3d 1455 (9th Cir. 1993) (stating that the government's ass......
  • Request a trial to view additional results

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