OUT OF CONTROL

Legal Rules Have Changed, Allowing Federal Agents, Prosecutors To Bypass
Basic Rights

(Continued from part 1)

Telling Lies In Court

Federal prosecutors often face a quandary when they investigate criminals
or put them on trial.

Fellow criminals usually don’t want to snitch on their colleagues or
testify against them, and they surely don’t want to spend a lifetime in
prison. So deals are made. Sometimes, witnesses with information about
criminal activity get paid as informants. Sometimes, they get reduced
prison time. In return, they must promise to tell truthfully everything
they know.

This sounds good in theory, but Don Carlson knows better. In 1992, federal
agents stormed his San Diego area home in search of thousands of pounds of
cocaine. They didn’t identify themselves. Carlson figured it was thieves
trying to knock down his front door. He fired two shots into the door then
was shot in the thigh as he dropped his gun and scrambled to a bedroom.
There, as he lay defenseless on the floor, an officer shot him twice in the
back.

There were no drugs. An informant whom the government was paying $2,000 a
month had made up a story about the drugs because he thought Carlson’s home
was vacant and he needed to feed stories to agents to keep the money coming.

The informant’s tendency to lie was well known. Federal agents in South
Florida dumped him as an informant because of his repeated lies. But the
lure of a major drug bust won out over common sense. Agents used his story
to get a search warrant for Carlson’s home.

In this case, their misconduct cost the government. Carlson received a
multi-million dollar payout after agents almost shot him dead, but he got
no apology. "All they said was that they were a victim of circumstances,"
said Carlson.

Maybe so, but perjury is among the most pervasive problems in the federal
justice system -- affecting investigations, grand jury testimony and trials.

The courts have hinted at some changes. In a startling decision in July,
the 10th U.S. Circuit Court of Appeals ruled, 3-0, that promising leniency
to witnesses in exchange for testimony amounted to buying that testimony,
which violates federal law. Federal appeals courts in South Florida,
Louisiana and Tennessee have issued similar, preliminary rulings in the
past few months.

The Colorado court recently pulled back the decision so that all 12 of the
court’s judges may rehear arguments. If the ruling isn’t changed, it will
certainly be appealed to the U.S. Supreme Court.

Further appeals might become moot.

U.S. Senator Patrick Leahy, D-Vermont, has introduced an amendment in the
Senate that would exempt federal prosecutors from the statutes cited in the
ruling.

‘Jumping On The Bus’

"Jumping on the bus" has taken perjury in the federal justice system to new
heights.

Inmates deal for confidential information from other inmates, government
informants and snitches within the federal bureaucracy; they then memorize
it and recruit others to do the same. Then, to win sentence reductions,
they testify to facts only a real insider could know.

The detailed information that inmates deal might sell for $200,000 or more,
but it can be traded for a sentence reduction of 10 or more years.

It’s not a bad trade for inmates whose misadventures with the law might
have left them with substantial assets but a future that included decades
behind bars.

Federal authorities haven’t responded to inquiries about the "jumping on
the bus" phenomenon, but witnesses have told of being questioned in federal
investigations of the problem.

Richard Diaz, a former Miami police officer and now a prominent Miami
defense attorney, says that since the early 1990s, the practice that earned
drug smuggler Goy-riena promises of cuts in his prison sentence has touched
hundreds of cases in South Florida and other jurisdictions.

In Atlanta, a former prison inmate opened an office where federal prisoners
could buy information they might use to testify against suspects they
didn’t know.

Diaz believes the phenomenon can be traced to mandatory sentencing
guide-lines that Congress enacted in 1987, imposing stiff prison terms for
most federal crimes and sharp reductions in the amount of time off for good
behavior that inmates may earn.

"Jumping on the bus" is one of the few ways left for federal prisoners to
cut their prison time.

Dangerous Alliances

The close relationships that federal law enforcement officials sometimes
develop with criminals are necessary and treacherous.

Mob bosses don’t tend to share information about their criminal
enterprises, and often the only way for federal agents to pierce their
secretive shell is to develop ties with criminal colleagues.

That arrangement can prove slippery. This investigation found dozens of
cases where agents became so close to their informers that they crossed the
line — sometimes assisting them in their criminal activities or protecting
them, or even joining them and sharing in the profits of their crimes.

Few safeguards are in place to prevent the practice or, in some cases, to
even discipline the most flagrant abusers.

For decades, FBI Special Agent R. Lindley DeVecchio oversaw investigations
involving New York City’s Colombo Crime Family. He was also the FBI’s lone
contact with a key informant in that family, Gregory Scarpa Sr., who was a
Colombo captain and a notorious killer.

DeVecchio’s superiors and other street agents would be stunned when he was
later accused of passing confidential information to Scarpa, helping Scarpa
avoid arrest, helping Scarpa punish his enemies, and allowing Scarpa to
continue a crime career that included several murders.

DeVecchio is even accused of helping fabricate evidence with Scarpa in
order to win indictments, convictions and guilty pleas against Scarpa’s
enemies.

A strikingly similar case unfolded a few years ago in Boston. Associates of
James "Whitey" Bulger, one of the city’s most notorious mobsters, could
only wonder why he escaped prosecution, even as they were indicted,
convicted and imprisoned for the rest of their lives. The reason: The FBI
took sides, making sure that Bulger’s criminal enterprise flourished while
his opponents were arrested and sent to prison.

Just before a federal grand jury was to indict Bulger in 1995, he
disappeared and has not been heard from since, casting more suspicions on
the FBI and its relationship with Boston’s top mobster. No FBI agents were
disciplined in that case nor the New York case. Top agents in charge
retired with pensions.

DeVecchio has taken the Fifth Amendment in several trials exploring the
FBI’s complicity, and because of the FBI’s conduct in Boston and New York,
dozens of criminals convicted on the basis of evidence that these
relationships tainted might go free.

Abuse At Sentencing Time

Federal judges used to determine the sentences of the guilty.

They don’t any more. In an attempt to standardize prison time and stop the
practice of judge-shopping, Congress adopted strict sentencing guidelines
in 1987. The guidelines mandate exactly how much prison time will be served
based on the severity of the crime: so many years for a certain amount of
drugs sold, so many for a certain amount of money embezzled.

This change produced an unexpected outcome: Federal prosecutors and agents
now have the power to manipulate the charges a suspect will face and, as a
result, the sentences that suspect will serve.

That power is broadly abused. For example, when a jury convicted Pogue of
closing a land deal with federal agents he thought were drug smugglers, the
judge didn’t determine Pogue’s sentence. Those agents did, when they
discussed, in his presence, the quantity of drugs they would ship and the
price they would pay for the land, making sure that both amounts met the
criteria established for major drug and money laundering conspiracies under
federal sentencing guidelines.

The same kind of strange machinations can be found at the other end of the
sentencing pipeline. Judges may not arbitrarily reduce sentences -- a
prosecutor must request a reduction, usually for a suspect who has
cooperated and implicated others.

For example, Mary Ann Rounsavall and her brother, James Rounsavall, were
charged in 1994 in a multi-million dollar drug operation and
money-laundering scheme that stretched from Southern California to
Nebraska. The government’s evidence was thin. Prosecutors pressed Mary Ann
Rounsavall to testify against her brother. She refused. She was threatened
and cajoled, she said. Then came the clincher. Prosecutors told her that
her brother was dying. She wasn’t allowed to talk to him, but she was
promised a substantial reduction in sentence if she testified against him.

Her mother assured her that testifying would be the best course -- after
all, he would soon die anyway. Rounsavall agreed to the deal; her testimony
put her brother away for life, and prosecutors seized millions of dollars
in assets from him and his sister. Before sentencing Mary Ann Rounsavall,
U.S. District Judge Richard Kopf peered down at the prosecutor, asking if
he planned to request a sentence reduction based on Rounsavall’s
substantial assistance. Assistant U.S. Attorney Bruce Gillen did not offer
the motion.

Under federal sentencing guidelines, Kopf had no choice but to order Mary
Ann Rounsavall imprisoned for 20 years rather than the maximum of eight
she’d have gotten with a prosecutor’s recommendation for leniency. Long
known as a hard-liner on drug offenses, Kopf described the incident as
"horribly wrong."

Rounsavall has filed several motions trying to force the government to
honor its promises. She said federal agents had given her some of the
testimony that had ensured her brother’s conviction.

And there’s more: Her brother wasn’t dying. She says federal prosecutors
lied about that, too. He is healthy and now serving a life sentence.

Defense Attorneys Targets

Defense attorneys have become favorite criminal targets of federal
prosecutors, even when they’ve done nothing wrong.

This investigation turned up dozens of cases where prosecutors filed
questionable charges against attorneys who represented big-name criminal
defendants, sometimes sacrificing certain convictions in the process.

In 1990, U.S. Attorney Anthony White charged Ciro Mancuso in one of the
largest drug conspiracy cases ever brought in Reno, Nev. The evidence
against Mancuso, who owned a half dozen homes and estates, was overwhelming.

Still, Mancuso’s San Francisco attorney, Patrick Hallinan, filed dozens of
motions, accusing White of illegal and unethical conduct in his
investigation. White had never taken kindly to such tactics from opposition
attorneys -- often seeking to disqualify them in court.

Then, Mancuso offered a deal. He would implicate his lawyer and others in
the drug conspiracy in exchange for a lenient sentence. White jumped at the
deal.

Hallinan seemed an unlikely drug smuggler. An amateur archaeologist, he was
a respected defense lawyer whose father was regarded as one of the finest
attorneys San Francisco had produced. Hallinan’s brother was head of the
city’s law department. But based on Mancuso’s testimony, Hallinan was soon
indicted for drug smuggling, money laundering and racketeering.

White wasn’t done. In June 1994, federal agents raided Hallinan’s San
Francisco home, looking for evidence that Hallinan had illegally smuggled
Peruvian artifacts and other ancient art.

Hallinan was acquitted on the drug, money laundering and racketeering
charges. No charges were filed after the search of his home, though
Hallinan has yet to recover hundreds of documents and valuable pieces of
art that agents seized in the raid.

Mancuso was sentenced to only 10 years -- despite his drug kingpin status
and the perjury he committed, but he thought even that was too much. In
November 1996, his lawyers appealed the sentence, claiming that White
promised him "little or no jail time" for testifying against Hallinan. A
9th Circuit U.S. Court of Appeals panel disagreed, but Mancuso might still
be out of prison in a year and a half.Fixing the problem

Congressman John Murtha, D-Johnstown, says he watched as an out of control
federal investigation nearly destroyed Joseph McDade, his colleague in the
U.S. House of Representatives.

A Philadelphia federal jury acquitted McDade, R-Scranton, in 1996 on
charges that he accepted gifts from defense companies in exchange for
helping them win lucrative contracts.

During an eight-year investigation, McDade said prosecutors intimidated his
friends, interrogated his relatives and staff and tried to damage his
reputation through news leaks.

Murtha wondered how an average citizen with average resources could survive
a similar assault. "When I sat beside Joe McDade for eight years and
watched him go through the excruciating pain, . . . it made me recognize
the tremendous power a [federal] prosecutor has. I could see that if they
did this to a Joe McDade, an ordinary citizen has no chance," said Murtha.

Murtha and McDade decided to draft legislation called the Citizens
Protection Act. Its most important provision would have established an
independent oversight board to monitor federal prosecutors and require them
to abide by the legal ethics laws of the states in which they operate. It
also provided sanctions against prosecutors who knowingly committed
misconduct.

Many of the bill’s provisions touched on concerns raised by this
investigation, which found that even when misconduct is clear, federal
officials are loathe to acknowledge it or punish it or ensure that it
doesn’t happen again.

Murtha said the bill hit a nerve in the House of Representatives. More than
200 congressmen signed on as sponsors, many saying that constituents in
their home districts had asked them to investigate complaints about federal
law enforcement officers’ misconduct. "It seemed like everyone had a story
to tell," he said.

The House approved the legislation in August on a broadly bi-partisan vote,
345-to-82, despite the Justice Department’s intense opposition. "I’ve never
seen an effort [to kill a bill] -- a focused effort -- like I’ve seen in
this particular case, from the Deputy Attorney General right on down the
line," Murtha said.

The victory was short lived. The House bill became part of the federal
appropriations package that Congress passed in October, and the Justice
Department managed to have all but one provision killed in the conference
committee that crafted the budget bill. That provision, requiring federal
prosecutors to abide by the ethics laws in the states where they work, is
important, but the appropriations bill delays its implementation by six
months, giving the Justice Department time to try to eliminate it, Murtha
said.

That puzzles Burns, the deputy attorney general under Reagan. He recalls
drafting a memorandum requiring that all federal prosecutors adhere to the
local ethics rules, the very rule his former department is now trying to kill.

"Look at it this way," he said. "[Pretend] there is a case, United States
v. Burns. That means it’s the whole FBI against Burns -- its investigators
and forensic accountants and everything else the government has. It’s
already one-sided.. . . Let’s have an even playing field."

But the Justice Department doesn’t want a level playing field, the
Post-Gazette found. Any push by Congress for substantive change in
protecting the rights of citizens is always met with the Justice
Department’s same dire warnings: Fiddling with the laws that empower
federal law enforcement officers might hamstring efforts to fight drugs,
child pornography and international terrorism.

In 1995, for instance, the U.S. Senate conducted hearings to demand answers
for the disastrous confrontations by federal agents at the Branch Davidian
complex in 1993 in Waco, Texas, and at the home of anti-government rebel
Randy Weaver in Ruby Ridge, Idaho.

Officials with the FBI and Bureau of Alcohol, Tobacco and Firearms assured
senators that changes in policies and procedures had been made to solve the
problem, but some of the agents identified as ordering illegal actions
eventually won promotions.

Shortly after that hearing, Attorney General Janet Reno announced that,
because of its large backlog of cases, she was doubling the size of the
Office of Professional Responsibility, which is charged with ensuring that
federal officers don’t abuse their authority.

The most recent General Accounting Office report on the Office of
Professional Responsibility, in 1995, found that it substantiated only 9
percent of the 411 complaints it investigated between 1980 and 1990. The
Post-Gazette found that the office still investigates very few cases; the
office also has failed to correct the problem mentioned in the GAO report:
"[The Office of Professional Responsibility] operated too informally,
failing to document key aspects of its investigations, such as decisions
not to interview certain people or conclusions that charges were false."

Last year, House Judiciary Chairman Henry Hyde, R-Illinois, introduced
legislation that allowed victims wrongfully prosecuted by the federal
government to recover attorney fees and other defense costs. Under Justice
Department pressure, the bill was diluted -- requiring that any such action
be filed within 30 days of the completion of the federal action. Justice
lobbying also eliminated the sanctions that individuals who commit abuses
would have faced.

Still, Murtha believes that the lopsided margin by which the House approved
the Citizens Protection Act is a strong base on which to build. "We think
it was a step in the right direction, and I guarantee you that I’m going to
push it further."

Others share Murtha’s cautious optimism. "I think that while our system of
justice and the administration of justice and criminal justice is the best
in the history of the world, it requires a lot of reform and change and
improvement, and I think it’s wrong to say this is how it is and how it is
going to be," said Burns.

Checked-by: Richard Lake