Sunday, July 04, 2010

Case o' The Week: Better Off Ted - Struckman, Brady / Giglio, and Defendant Extractions

Want to know how the Feds get away with a made-up informant, potential illegal wiretaps, and a series of false assertions repeated to a federal district court judge -- with no apparent investigation into the misconduct or disciplinary action?

You're in good company: so does Judge Berzon.
United States v. Struckman, __ F.3d __, 2010 WL 2573211 (9th Cir. June 29, 2010), decision available here.

Players: Decision by Judge Berzon, joined by Judges O’Scannlain and Kleinfeld.

Facts: U.S. citizen Struckman, the head of a huge tax-fraud scheme, went to Panama on a tourist visa and didn’t return. Id. at *1. The Feds wanted him back to face federal charges. A US embassy official flatly lied in a number of communications with US and Panamanian authorities as they tried to “habeas grabbus” Struckman and get him back to the U.S.. Id. *2 ("habbeas grabbus" is U.S. Embassy Security Officer Timothy O'Brien's term - not ours. See id. at *2).

Back in the States, IRS Special Agents Keith L. Chinn and Michael D. Hardaway had developed a huge stockpile of information about Struckman from confidential informant “Ted.” Id. at *3-*4. When defense counsel later pushed to get “Ted’s” identity, the snitch fell “off a roof” and was not “able to travel due to medical problems.” Id. at *4.

When pressed by the court, the agents finally submitted statements (not under penalty of perjury) that the snitch was the husband of Struckman’s ex-wife. Id. at *5. The defense countered with declarations from that man, as well as from other family members, denying that claim and accusing the Feds of illegal wiretaps. Id.

Defense motions finally produced an order from District Judge Takasugi finding that the man identified by the agents “could not have been the informant” and that there was no single source for all the information attributed to confidential informant “Ted.” Id. at *6. The court found a number of additional Brady / Giglio violations, but refused to dismiss the indictment. Id. at *7. Instead, the court excluded evidence related to the informant, precluded another government witness from testifying, and required the government to assure the evidence produced at trial was “not derived from suppressed evidence.” Id.

Struckman was convicted after trial: the actual source of the “Ted” information was never revealed. Id.

Issue(s): “Struckman maintains that the government’s conduct, both in bringing him from abroad to stand trial in the United States and in its criminal investigation of him, warrants dismissal of the indictment with prejudice.” Id. at *1.

Held: “We agree that the broad suppression of evidence before trial was an adequate remedy for the misconduct found, disturbing as some of it was, and therefore affirm.” Id. at *1.

Of Note: Judge Berzon gets it exactly right in a separate concurrence: she complains of the “intolerable situation” presented by this case, “severely challenging the integrity of the courts and the appearance of justice.” Id. at *15 (Berzon, J., concurring). As of the date of the opinion, the Feds still remain in flat defiance of the district court order requiring explanation of the real identity of “Ted,” still have not denied the very credible defense accusation of illegal wiretaps, and apparently still had not initiated disciplinary actions. Id. at *14.

If Holder’s DOJ is sincere about a new era after the Alaska Stevens debacle, some bright young folks at 950 Pennsylvania should be reading Berzon’s concurrence and assembling teams to get to the truth of this dirty prosecution. As things stand now, the case remains an “affront to the court’s integrity and the appearance of justice.” Id. at *17.

How to Use: Struckman is marred with a troubling little passage on Brady / Giglio violations in the pretrial context – a passage that merits a close read. Id. at *13. The main legacy of the case, however, will be a comprehensive (and disappointing) analysis of the remedies available for defendants grabbed from foreign countries. Id. at *7. Here, government agents lied to Panamanian officials and conspired to dodge extradition proceedings in Panama, worked to block the assistance of defense counsel, and successfully dragged the defendant back without going through the protections of the full extradition treaty. Id. at *9. As Judge Berzon notes in significant understatement, “Some of the government’s actions in Panama are quite disturbing.” Id. For better or worse, Struckman will now be the starting point for defense challenges to the extraction of federal defendants from foreign countries.

For Further Reading: While a dismissal of the indictment would have been nice, it is obvious that District Judge Takasugi (left) held the government’s feet to the fire when he learned of the misconduct. Judge Takasugi passed away last year, after a long and admirable career on the bench. For a personal view of Judge Takasugi’s commitment to issues of social justice, see former clerk’s Edwin Prather’s essay here.

Image of "TED" from Image of the Honorable Judge Robert M. Taksugi from

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at


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