Sunday, August 06, 2006

Case o’ The Week: Ferguson Uncowed by Decoud, Wiretaps, Jury Racial Animus

In a disappointing decision, Judge Callahan repeats what has become Ninth Circuit boilerplate about the necessity of a wiretap. United States v. Decoud, 06 Cal. Daily Op. Serv. 8685 (9th Cir. Aug. 2, 2006), decision available here. While the Ninth continues to permit Title III to stray far from its original protections, Decoud will probably be remembered for some new bad law on jury race animus and the need (or lack of need) for evidentiary hearings on the issue.

Players: Decision by Callahan, joined (?) by B. Fletcher, dissent by Ferguson.

Facts: After a trial Decoud and co-defendants were convicted of a crack conspiracy. 06 Cal. Daily Op. Serv. at 8691-92. Six months into the investigation, the DEA got a wiretap on a co-conspirator. Id. at 6893. Wiretap “Confidential Source 1" (“CS1") had performed buys with several of the conspirators, but never with co-D “Israel.” Id. at 8696. Before trial, Israel moved for disclosure of CS1 on the theory that this lack of contact was exculpatory. Id. The district court denied this motion, id., and the Title III “necessity” wiretap challenge. Id. at 8705.

Issue(s): (Among many issues):

1. Wiretaps: “On appeal, Israel . . . claim[s] that the government failed to establish the necessity for the wiretap. Although Israel challenges the case agent’s representations concerning CS1, she does not give this court any reason to doubt those representations. As noted, the case agent’s affidavit provided that CS1 would no longer be available to make controlled drug buys because of CS1’s prison term.” Id. at 8705.

2. Disclosure of Informant/Source: “Notwithstanding Israel’s acknowledgment that the government’s confidential informant, CS1, had no contact with the appellants, Israel contends that the district court abused its discretion in denying disclosure of information about CS1.” Id. at 8709.


1. Wiretaps: We have articulated that the necessity requirement does not mandate[ ] that the government organize the release of jailed informants before a wiretap will be authorized[.] . . . We have further reasoned that any previous success from the use of confidential informants is even less persuasive [in determining necessity] in the context of an investigation of criminal conspiracy. . . . Thus, Israel’s argument does not present a valid basis to challenge the wiretap.” Id. at 8705-06 (internal quotations and citations omitted).

2. Disclosure of Informant/ Source: While Israel postulates that CS1 could have testified to a lack of any knowledge about her involvement in the conspiracy, CS1’s lack of knowledge on this point was undisputed and could have been elicited at trial through a stipulation or the testimony of the case agent. . . . . [S]uch testimony would have been of limited value to Israel, for the informant’s non-knowledge would have done little to refute the government’s otherwise persuasive evidence of Israel’s affirmative involvement in the conspiracy. Furthermore, the government did not rely on CS1 in any aspect of its case against Israel; CS1 was not involved in any transaction contained in her indictment, there is no dispute about the facts to which CS1 could have testified, and the involvement of CS1 in securing the government’s wiretap is insufficient to compel disclosure of the informant’s identity . . . . For these reasons, Israel has not carried her burden of proving that the disclosure of the informant’s identity is “essential to a fair determination” of her case.” Id. at 8710 (internal quotations and citations omitted).

Of Note: As Jon Sands has blogged, in Decoud the sole black juror was excused during deliberations. Id. at 8722. Post-verdict evidence of racial animus on the jury arose. Id. at 8725. The district court rejected a post-verdict race challenge without so much as an evidentiary hearing: Decoud upheld that decision. Id. Judge Ferguson’s forceful dissent to this aspect of the case is worth a read. Id. at 8733.

How to Use: For better or worse, jailing a productive snitch can go a long ways towards making the government’s Title III “necessity” showing. What is unclear from this opinion – and what surely happens in other wiretaps cases – is whether the government orchestrated the incarceration to create wiretap necessity? We’ve argued that the Title III necessity showing carries with it a “good faith” requirement: deliberate incarceration of an otherwise productive snitch would be inconsistent with this requirement.

For Further Reading: The blogsphere is underwhelmed by Decoud. As experienced practitioner Grace Suarez opines, “This case needs en banc review!! I'm actually very surprised at Judge Betty Fletcher. She usually gets things right.” See ElectricLawyer blog here.

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


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