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Defense lawyers often fear that misconduct by federal informants will go undiscovered, but when exposed the fallout can be spectacular, as happened last week in a San Francisco drug trial. The ensuing controversy spotlights the problems for the defense in deciding whether to accept a plea bargain without seeing all of the government’s evidence, as well as the difficulty of withdrawing a plea after a sentence is imposed. In 2002, the FBI fired a Yemeni undercover informant for revealing his covert status in a California terror investigation, as well as disclosing the names of two FBI agents, then lying about it. But the informant was not out of work long. The Drug Enforcement Administration hired the informer, Essam Magid, back immediately. He originally worked undercover for the DEA in 1999 after his own arrest on drug conspiracy charges. It was after the attacks on Sept. 11, 2001, that the FBI scooped him up for use as an Arabic speaker in security work. The DEA kept quiet about Magid’s FBI troubles for more than three years while he produced cases for them. Last week, a San Francisco federal judge accused a DEA agent of lying about Magid’s misconduct during questioning in a criminal trial and ordered the U.S. Department of Justice to investigate the agent and at least two other DEA supervisors. “The court wants an investigation as to: what did the DEA know and when?” said U.S. District Judge Charles Breyer. Breyer dismissed the drug charges against Nabil Ismael, in U.S. v. Ismael, No. CR04-0376CRB, but others were not so fortunate. Four co-defendants pleaded guilty without knowing the informant’s history. Magid’s work also helped win guilty pleas or convictions of at least seven other defendants in two separate cases in Fresno, Calif. It is unclear whether the men already sentenced there will be able to withdraw their plea bargains. “The Supreme Court has said when someone pleads guilty they are not entitled to have all the evidence the government had before the plea,” according to Rory Little, a law professor at the University of California Hastings College of the Law in San Francisco. Proposed rule change This case and others like it around the country point up the importance of a recently proposed rule change in criminal discovery and plea negotiations. The American College of Trial Lawyers’ proposal to change the rule is aimed at reducing the chance that agencies will suppress flawed evidence in their cases. It would mandate short timetables for prosecutors to disclose any information helpful to the defense before pleas are accepted or trials commenced. The change would also require prosecutors to certify that government agents have complied. The new rule is under review by a criminal rules committee of the Judicial Conference of the United States, the policy-making body of the federal courts. Forty years after the Supreme Court held that prosecutors have a constitutional duty to turn over evidence favorable to the accused, in Brady v. Maryland, 373 U.S. 83 (1963), there is still no requirement of timely government disclosure, according to Robert W. Tarun, a principal drafter of a report on proposed changes in Rule 16 of the Federal Rules of Criminal Procedure and a partner in Latham & Watkins’ Chicago office. “No defendant should be forced to either proceed to trial or plead guilty without access to favorable information as to guilt or sentencing,” said Tarun, who spent a decade as a federal prosecutor. Just such a mandatory rule was adopted in federal court in Massachusetts in the wake of a scandal in which a police officer destroyed a star informant’s narrative of his criminal history before it was shown to the defendants. U.S. v. Mannarino, 850 F. Supp. 57 (1994). Tarun said the mandatory disclosure has been working there since 1998. Miriam Conrad, the federal public defender in Boston, said the rule is “well-intentioned and a step in the right direction, but that is not to say it is not violated.” She said a fundamental problem is lack of training for prosecutors who, despite their adversary role, are asked to determine what is exculpatory for the defense. Tarun said the majority of the committee believes “that across the country federal prosecutors routinely defer Brady disclosures unless ordered by the trial court.” Once a defendant agrees to plead guilty, evidence useful to the defense may not surface. The committee proposed a change in Rule 16(f) that would give prosecutors 14 days from the time of a defense request to disclose all known favorable information. In addition to timely discovery, new studies about the frequency of false confessions and tardy disclosure of exculpatory details create another problem for appellate courts. Hastings’ Little suggested that it might be time for the courts to revisit the line of cases that severely restrict a defendant’s ability to withdraw a guilty plea after sentencing. Federal circuits have split on whether Brady applies to plea negotiations, with the 5th and 8th U.S. circuit courts of appeals holding that defendants waive their right to see the information by pleading, according to Tarun. Four other circuits, the 2d, 6th, 9th and 10th, have held that Brady applies to guilty pleas, he said. Prosecutors in the northern and southern districts of California have avoided that problem by expressly incorporating a Brady waiver into plea agreements. The Supreme Court in U.S. v. Ruiz, 536 U.S. 622 (2002), distinguished between exculpatory material and information used simply to impeach a government witness, such as Magid, holding that the government does not have to disclose impeachment material prior to a plea. This raises the stakes for defense lawyers. Without sufficient discovery at the plea stage, defense lawyers will wait until the eve of trial to plead, because all they are risking is loss of one sentencing point for acceptance of responsibility, said Dan Blank, a federal public defender in San Francisco. Further inquiry Marc Ament, a Fresno federal public defender who is investigating what can be done for the convicted Fresno defendants, said, “This is not the first case in which a bad snitch is handed from one agent to another. I see this as a cancer on the system.” Ament said further: “It calls into question the entire fact-finding system.” Breyer asked that the Justice Department inquiry look at the exchange of information between Fresno prosecutors and the defense. He read from an April letter from the DEA field office in San Francisco vouching for Magid. “The DEA is not aware of any information negatively impacting Mr. Magid’s ability to testify accurately and truthfully, and he is regarded as credible and reliable,” wrote John G. Sullivan, a temporary agent in charge. Breyer praised prosecutors in San Francisco and the FBI, saying that they acted appropriately by providing Ismael’s defense lawyer details of Magid’s 2002 firing prior to the trial. U.S. Attorney Kevin Ryan told Breyer he shared his concern and was taking “affirmative steps to begin review” of the issues he raised. Breyer, however, disqualified Ryan’s office from the official investigation because the prosecutors are likely to be witnesses. In Ismael’s case, details of Magid’s history with the FBI were critical. Ismael’s attorney, Ian G. Loveseth of San Francisco, said Magid portrayed himself as working with the government and he lured Ismael, also a U.S. citizen and an Arabic speaker, by promising the car salesman a job with the Department of Homeland Security. All Ismael had to do was introduce Magid to people who would engage in drug deals as part of a government investigation. Magid promised Ismael he would not be subject to arrest, according to Loveseth. The DEA agent, Dwayne Bareng, bolstered Ismael’s defense by testifying that he was reluctant to take any money for his introduction of the two sides in the methamphetamine deal. Bareng’s denial that he knew why the FBI fired Magid contradicted earlier testimony by FBI agent Rachel Pifer, who said she told Bareng why Magid was dismissed. When confronted with his contradictory testimony, Bareng invoked his Fifth Amendment rights and quit talking during his cross-examination. That prompted Breyer’s call for an investigation. The FBI declined to state the nature of the terror investigation involving Magid. The local head of the DEA office, Javier Pena, attended the court hearing but did not comment. Outside court, DEA spokeswoman Casey McEnry said, “We have made the proper referrals [to DEA] and believe in the integrity of the review process which precludes us from making any further comment.” Loveseth said that although Ismael faced 20 years in prison if convicted, he rejected a four-year plea deal over Loveseth’s opposition. Little said, “There is nothing worse than a government informant that goes bad.” For the FBI, trying to penetrate gangs that are violent and secretive you end up using informants that are horrible people, he said.

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