USA TODAY International Edition
AFTER ILLEGAL WIRETAP, SUSPECTS GO FREE AND WANT A REFUND
Other cases could fall apart because evidence tainted by same legal flaw
Federal drug agents spent months watching a tiny California jewelry store sandwiched between an auto parts shop and an apartment house with bars on its windows. They secretly recorded its owner’s phone calls and intercepted couriers carrying away boxes full of cash, sometimes stuffed with $ 100,000 or more. For more than a year, they gathered evidence that the store was laundering millions of dollars for drug traffickers.
Then, in the space of a few minutes in October, their whole case fell apart.
Prosecutors determined that wiretaps the U. S. Drug Enforcement Administration used as the core of its investigation were illegal and couldn’t be used in court. Four suspects went free, and they want the government to give back nearly $ 800,000 agents seized.
“These people were dealing in drugs, and they are guilty, and because of a procedural issue and a suppression motion, they got away with it,” said Mike Ramos, the district attorney in San Bernardino, Calif., whose office prosecuted the case.
The wiretaps prosecutors concluded were illegal had been approved by officials in Riverside County, Calif., a Los Angeles suburb responsible for nearly a fifth of all U. S. wiretaps last year. An investigation last month by USA TODAY and The Desert Sun found that prosecutors almost certainly violated a federal law that requires the district attorney to personally sign off on wiretap applications. Those tainted wires were used to make arrests and seizures throughout the USA.
More of those cases could be in peril, and the abrupt end of the San Bernardino money laundering case offers a vivid example of how significant the consequences could be. Court records show the DEA used wiretaps with the same legal flaw to build cases in California, Kentucky, Oregon and Virginia. State and federal prosecutors are beginning to review those cases to see whether they can go forward.
“All those cases need to be kicked, and there should be no hesitation to do it,” said Glen Jonas, a California lawyer who represented one of the suspects in the San Bernardino case. “Prosecutors can’t be sitting on their hands hoping to put people in jail when they know the evidence they’re using is illegal.”
The San Bernardino money laundering case — largely unknown outside the county’s courthouse — began more than a year and a half ago, when agents started probing shipments of cash leaving Khmer Sarmey Jewelry, a small shop on a commercial strip in Long Beach, Calif., outside Los Angeles.
By late 2013, agents had seized $ 290,000 from people seen leaving the store and had tied its owner’s phone to what they suspected was a far wider network of illicit money transfers, according to court records. They got permission from prosecutors and a judge in Riverside to wiretap the store’s owner, Koan You Lay.
The wire yielded still more: Within a few days, agents seized $ 299,000 from a man seen leaving the store. In all, they reported seizing more than $ 1.1 million in cash, most of it from people they had tracked from the jewelry store.
They charged seven people linked to the store, including Lay, in state court in San Bernardino.
Federal law bars the govern- ment from seeking a wiretap unless a top prosecutor has personally authorized the request, a restriction Congress imposed in the 1960s after the FBI secretly eavesdropped on civil rights leaders. In California, a federal appeals court said that means wiretap applications have to be approved by the district attorney himself unless he is “absent” and turns over all of his authority to an assistant.
In Riverside, District Attorney Paul Zellerbach routinely delegated that job to lower- level lawyers, a practice the appeals court’s decision forbids. Zellerbach said in interviews he could not recall ever having personally authorized a wiretap application.
Lawyers for Lay and the other suspects asked a judge in San Bernardino to throw out the wiretaps and all evidence tied to them. Prosecutors did not object; Deputy District Attorney Mallory Miller said during a hearing in October that they did “not have a legal position to oppose” the request. Prosecutors dropped the case. Lay and others have taken the unusual step of asking a federal court in Los Angeles to return nearly $ 800,000 of the money DEA agents seized during the investigation. They started that fight before the criminal case was dismissed, but their case got considerably stronger after prosecutors in San Bernardino conceded that wiretap evidence was tainted. Justice Department lawyers have not indicated how they will respond to that request.
It is almost impossible to know how widely the DEA has used tainted wiretaps from Riverside County; many records related to the surveillance are sealed. State and federal court records show prosecutors have relied on Riverside County wires signed by Zellerbach’s assistants to make arrests in California, Kentucky, Oregon and Virginia.
Justice officials said they have been gathering information about the DEA’s use of Riverside County wiretaps, including building a more complete list of criminal prosecutions in which they were used. The officials, who spoke on the condition of anonymity because they were not authorized to discuss internal deliberations, said the department had not decided how to proceed.
A Justice Department spokesman declined to comment.
“All those cases need to be kicked, and there should be no hesitation to do it.” Lawyer Glen Jonas