TRANSCRIPT OF PROCEEDINGS in case as to GEORGE A. NADER before Judge John Garrett Penn held on 2/10/1986; Page Numbers: 208-289. Court Reporter/Transcriber Harry Deutsch, Transcripts may be ordered by submitting the Transcript Order FormFor the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov. Redaction Request due 7/10/1986. Redacted Transcript Deadline set for 7/20/1986. Release of Transcript Restriction set for 9/17/1986.(hsj) (bj).
Co 4-OKR DADA22—10--D. PP, +A CiandAkrs/ta/2R. D. Case L.00-Cl-YUUSS-JSGF VOCUITIENU 4 FHeag VO/LIT0O0 Fage
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
= eee :
UNITED STATES OF AMERICA Vs. : Criminal Action No. 85-GEORGE A. NADER, : FILED
Defendant. : JUN 19 meme me ee x CLERK, U.S. DISTRICT COURT
DISTRICT, OF COLUMBIA
Courtroom No. Washington, D.C.
Monday, February 10,
The hearing on Motions in the above-entitled matter
resumed in open court before The Honorable JOHN GARRETT PENN,
United States District Judge, commencing at 1:45 o'clock a.m.
APPEARANCES :
For the Plaintiff:
RONALD DIXON, ESQUIRE
For the Defendant:
DAVID POVICH, ESQUIRE
RICHARD S. HOFFMAN, ESQUIRE
Official Court Reporter .
4800-G, U.S. COURTHOUSE yk
Washington, D.C. 20001 (202) 898-
HARRY DEUTSCH ab 16Page 2 Government's Exhibits: in evidence
1
2
3 we
Defendant's Exhibits: in evidence
1
2
3 --
4
5
6 =
7 Closing Argument by Mr, Dixon Page Closing Argument by Mr. Hoffman Page Rebuttal Argument by Mr. Dixon Page
Rebuttal Argument by Mr. Hoffman Page 280Page 3
; =
PROCEEDINGS
THE COURT: Good afternoon counsel.
MR. DIXON: Good afternoon, Your Honor.
THE COURT: Mr. Dixon.
MR. DIXON: Your Honor, after speaking with the
witnesses, one witness that I have presented, and reviewing
the case a little further, I'm not going to call any other
witnesses, and we would rest with the testimony of Mr.
Northrop and Ms. Moolenaar, and at this time, we would ask the
Court to accept into evidence our two exhibits -- I believe
it's Government's 1 and 2 -- and we would defer to the Court
and to Mr. Povich for any evidence that they may want to
submit at this time.
THE COURT: All right. With respect to Government's
Exhibits 1 and 2, any objection?
MR. POVICH: Your Honor, can I make sure I know which
ones they are? 1 is the warning and waiver of rights?
MR. DIXON: Yes.
And 2, Your Honor, is the affidavit, search warrant,
and the inventory, and a diagram of the premises that were
searched.
The Court will recall that that came in or that was
used by the United States in an attempt to impeach Ms.
Moolenaar. The Court will recall that Ms. Moolenaar indicated
during direct examination in response to a question from Mr.Page 4
Povich that she was shown several magazines. She had viewed
nothing from the controlled delivery, but she was shown
several magazines, and she was asked to enumerate by name if
she recalled.
She indicated Hound Dog and Piccadillo, and the
Government seized upon that opportunity, after hearing that,
to impeach Ms. Moolenaar, because, as the Government recalled,
Piccadillo was only among those magazines inside of a
controlled delivery.
After a bench conference, all parties agreed that the
Magazine Piccadillo was among those items that were taken from
the apartment. However, to test this witness's credibility
and to test this witness's ability to recall, the Court
allowed the Government to pose a question to the witness, and
the witness's answer initially was that she had seen
Piccadillo in the controlled delivery, which was, of course,
in direct contrast to her earlier testimony, but I think an
attempt at rehabilitation was made, and she sort of, in the
Government's view, meandered around here and there, and I
don't -- her other testimony dealing with that issue is very
fuzzy, and that's how it came out, but that is the genesis of
Government's No. 2.
THE COURT: All right.
MR. POVICH: In the event this case at some point in
time goes to the Court of Appeals, and they're looking forPage 5
Piccadillo, I think the name of the magazine is Piccolo.
MR. DIXON: Piccolo, I'm sorry; not Piccadillo,
Piccolo. I'm not well versed, Your Honor.
MR. POVICH: Or Piccolo, as we called it up to this.
THE COURT: Whatever.
MR. POVICH: Your Honor, I have no objection to
Exhibit No. 1, which is the waiver. I think it was discussed
at length, and I think the Court should have the benefit of
precisely the form, and the indication that it was executed,
and that it was done, and particularly the time which appears
on it.
(Government's Exhibit No. was received in evidence.)
MR. POVICH: With respect to Government's Exhibit No.
2, I would accept the Government's exhibit and not object to
it, with one exception. I do so, Your Honor, because it is
offered -- because there is a credibility contest, and I
believe there is a credibility contest between Ms. Moolenaar
and the agent, and I think that the Court, if it reaches that
point, should have the benefit of whatever documentation is
available to assess it.
But there is an attachment to Exhibit 2, Your Honor.
It is an affidavit for a search warrant, and then it goes on,
Your Honor. In addition, it has a diagram of the room, which
I don't believe was part of the affidavit for the searchPage 6
warrant, since the officers had not entered the room at that
point, and I don't think they really had it.
And the third part of it is the report on the return
of the search warrant inventory. I have no objection to that.
In addition, I think it's been identified as one of the
defendant's exhibits. The only question I have is the
inclusion of this diagram of the room and why that was part of
it. Ron, do you know?
MR. DIXON: Could I have the Court's indulgence one
moment?
MR. POVICH: The record should reflect I've never
seen the diagram before, and we appear to have had copies of
both the affidavit and of the inventory, and it has not been
up to this point a part of it, and it seems to be signed by
Agent Bloodworth, and he's not testified, so I really question
whether or not that should be included.
THE COURT: I'm not sure I recall seeing the diagram
before.
MR. POVICH: Nor do I think it's particularly
relevant, certainly not to these proceedings.
MR. DIXON: Your Honor, if the Court please, I would
have no objection to that part of Government's Exhibit No. being sanitized, if you will, and --
THE COURT: The diagram?
MR. DIXON: Yes, sir.Page 7
ll
————
(Government's Exhibit No. 2, as
amended, was received in
evidence.)
MR. POVICH: Do I understand, Mr. Dixon, you're
resting now?
MR. DIXON: Yes.
MR. POVICH: May I address the Court?
THE COURT: Yes.
MR. POVICH: With respect to -- we don't wish to
introduce any further testimony, Your Honor, but we would like
to introduce our exhibits.
I will pass for a moment, Defendant's Exhibit l,
which is the request for the appearance and the subpoena for
Ms. Moolenaar to appear at this hearing today, which was
issued by the United States, and take that up at the end.
Exhibit No. 2, Your Honor, is the -- Defendant's
Exhibit 2 is a search warrant, inventory and return, report
and return. It was identified by Mr. Gauntt. If Your Honor
may recall, he said he signed it because it was -- the
Government told him to sign it, and he -- he believed they
were from the Government, so he did so. It's important, I
think, Your Honor, and I would like to introduce it as the
document shown to Mr. Gauntt, which he said he signed but did
not receive a copy of, specifically, the pink copy.
MR. DIXON: Your Honor, I don't have any problem withPage 8
ll
that. It's a part of the Court's record already, the Court
can take judicial notice of its own records.
THE COURT: All right, Government's Exhibits 1 and are received. I'm sorry, Defense Exhibits.
(Defendant's Exhibits Nos. 1 and were received in evidence.)
MR. POVICH: Your Honor, the next number is
Defendant's Exhibit 3, and this, Your Honor, is Ms.
Moolenaar's ~- are Ms. Moolenaar's notes. It is a one-page
exhibit of the telephone conversation.
Now, as Mr. Dixon says, her credibility has been
attacked. These are contemporaneous notes of what she said
transpired. She was questioned closely, I think, by both
parties and the Court on those conversations, and I would urge
that it's admissible, and that the Court should have the
benefit of her contemporaneous notes.
THE COURT: Mr. Dixon.
MR. DIXON: Your Honor, in general, Ms. Moolenaar, as
all witnesses who take the witness stand, her credibility was
attacked by the United States as well as Agent Northrop. fThe
notes that are comprised in Defense No. 3 were not used
specifically, either to impeach or to rehabilitate Ms.
Moolenaar. They are just general notes about the
conversation.
We would submit that all they would do is serve toPage 9
ll
‘Case 1:85=cr-00033-JGP—Document 4 Filed 06/19/86--Page-9-of
bolster her testimony. They really don't tell the Court any
more than it already knows about Ms. Moolenaar's testimony,
and there was no attempt by the Government, nor by the
defense, to rehabilitate her.
The Court recalled that the notes were referred to
and identified by Ms. Moolenaar, but the defense, after an
objection, abandoned whatever tactic they were using to try
to -- whatever purpose they were going to put the notes to.
There was no direct impeachment by the Government or
rehabilitation by the defense that would serve to bring these
notes into evidence at this point, and they would merely be
coming in as a prior consistent or inconsistent statement,
whichever part of the notes you wanted to seize upon that may
have been used but weren't used, and we would object on those
grounds, Your Honor.
THE COURT: Mr. Povich.
MR. POVICH: Your Honor, these notes were first
identified on my cross-examination or my examination of Ms.
Moolenaar. She really at the conclusion of that testimony had
been attacked quite forcefully as to her credibility insofar
as what transpired in that first telephone conversation -- for
instance, what was said -- and the subsequent witness, more
importantly, Mr. Northrop, testified, essentially, that what
Ms. Moolenaar had said when I examined did not take place, and
he said his interest was, for instance, in such matters asPage 10
ll
sexual conduct with young boys, and that that was specifically
discussed.
These notes, which she identified on the stand as
being her notes, are totally absent -- do not contain one
reference at all to that type of a conversation in their
telephone conversation -- not one -- and they are introduced,
Your Honor -- when I examined her and had her identify this, I
sought to introduce this at that point in her testimony.
It was objected to, and I waited, and the Court did
not rule on it, because it was just passed, and I did not
because I expected that, after Mr. Northrop testified and the
contents of that conversation really became clearly at issue,
that at that point it would be clearly admissible, and that's
why we waited till this point, at the conclusion of this
hearing, where the contents of that conversation are clearly
relevant, to introduce it to rehabilitate now, as a statement
of -- a contemporaneous note of Ms. Moolenaar as to what had
transpired.
It is no different, Your Honor, than what we have in
every situation where a police officer takes the stand,
testifies what's happened. On cross-examination, he is
challenged, and his contemporaneous notes are introduced or
allowed to be introduced, in order to show that what he said
happened was supported by contemporaneous writing.
I think Ms. Moolenaar is entitled to the samePage 11
Po
consideration, and indeed, these notes not only corroborate
what she said, but I think would assist the Court ina
difficult matter of credibility.
THE COURT: All right.
MR. DIXON: I have nothing further, Your Honor, on
that issue.
THE COURT: What's that?
MR. DIXON: I have nothing further on the notes.
I'll stand on the argument I made earlier.
THE COURT: Well, what is the rule that you would
bring it under, Mr. Povich?
MR. POVICH: If Your Honor will indulge me for a
moment.
THE COURT: Sure.
MR. POVICH: Give me a moment, Your Honor. I'm
sorry, I should have...
Mr. Hoffman is looking up the specific rule, Your
Honor. It would be the rule which relates to the exception to
the hearsay rule, which allows a witness who has made a prior
consistent statement to have that statement introduced, and I
will get it for you in a moment.
MR. POVICH: It's interesting, Your Honor. There are
two bases in rule 803. This is what I'm going to check.
THE COURT: 803?
MR. POVICH: Yes, sir.Page 12
ll
MR. POVICH: I'd like to start out, first, by saying
I don't know whether Ms. Moolenaar is adverse, who she's the
adverse party to, but anyway, Your Honor, 803, paragraph l, a
statement describing or explaining an event or condition made
while the declarant was perceiving the events or conditions or
immediately thereafter, and therefore, it is an exception to
the hearsay rule, Your Honor. This statement, I believe, is
clearly not excluded.
And, also, the general provisions under 24, Your
Honor, with the other exception, as a statement not
specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of
trustworthiness, if the Court determines that, a, the
statement is offered as evidence of a material fact, the
statement is more probative on the point for which - is
offered than any other evidence which the proponent can
procure through reasonable efforts, and the general purpose of
these rules, that the interests of justice will best be served
by the admission of the statement into evidence. Most
principally that one, Your Honor.
I think Your Honor has to sit back and ascertain --
we have two people trying to describe what happened in a
telephone conversation. One of the individuals, an attorney,
has made contemporaneous notes of what was said, and I think
in the interests of justice, those notes, especially if her
ase 1:85-cr-00033-JGP—Document 4—Filed-06/19/86—Page-12 of 82——_—______-Page 13
‘-————
credibility has been attacked, should be admitted in the
interests of justice.
THE COURT: Anything else, Mr. Dixon?
MR. DIXON: No, Your Honor. I'd stand on the
arguments I made earlier. We think that the only way that
these statements -- well, it’s not -- first of all, we don't
think it's a statement.
The only way that Ms. Moolenaar's notes can come in
is if Ms. Moolenaar was specifically impeached by the
Government. The Court allowed the United States to
cross-examine Ms. Moolenaar, because ~-- well, before the Court
even got to that ruling, the defense conceded, so the Court
didn't have to make that ruling. The defense conceded that
the Government should be allowed to cross-examine Ms.
Moolenaar, and we did.
After we cross-examined Ms. Moolenaar, Mr. Povich, as
I recall, attempted to use -- identified Ms. Moolenaar's
notes, had her identify them, and had her talk about what she
wrote down. I objected to her reciting anything on the notes,
all right? So there was no attempt to rehabilitate at that
point.
Then we get to Mr. Northrop testifying, and now the
defense is reaching way back, trying to use Ms. Moolenaar's
notes to impeach Mr. Northrop. But we don't know, we don't
know what Ms. Moolenaar wrote, and what she left out. ThesePage 14
ll
. ‘lec-06/19/
are very cryptic notes. They can't -- they don't rise to the
dignity of a statement, because everything is not there.
There are things that aren't there, and that means that these
notes are incomplete.
We don't know how they can try to use Ms. Moolenaar's
notes to impeach Mr. Northrop, because he didn't write them.
She wrote them.
They didn't ask her any questions about what she had
on her notes, because there was no grounds to. The things I
asked her did not fall within the four corners of that
document, or they would have tried to rehabilitate her, but
they didn't, and now they're trying to get to the Court's
attention her notes to bolster her testimony, on the general
theory that her credibility is in issue.
Of course her credibility is in issue. So is
Inspector Northrop's. But I daresay I don't think the defense
will argue that his notes should be submitted to the Court in
toto, and, Your Honor, we think there's just no grounds for
them to try to get the notes in. Had they specifically come
back and tried to rehabilitate Ms. Moolenaar on a specific
point, then we would say, arguably, that the notes could come
in, but that didn't happen, so our position has not been
changed, and we would ask the Court to exclude then.
THE COURT: May I see the notes before I hear further
argument?Page 15
ll
MR. POVICH: Yes, sir.
THE COURT: All right, last word, Mr. Povich.
MR. POVICH: Yes, sir. I spent some time, I
believe -- using the Government's argument, I spent some time
trying to "rehabilitate," if that is the correct word,
statements which Ms. Moolenaar or points which Mr. Dixon tried
to obtain from Ms. Moolenaar, particularly -- a perfect
example is the Piccolo or Piccolo situation, in which I
examined her at some length to try to have some understanding
of the circumstances under which she received information
concerning that, and that will be apparent -- that's not
apparent from that one, Your Honor; that was my reexamination
of her with respect to the telephone conversation of the day
of the meeting -- but the telephone conversation prior to the
meeting, and it was very important as to what was said as to
why it was going down, at whose request she was coming down,
and I went back over that at some length with her, and she
testified to those matters consistent with her notes, and I
would think, Your Honor, if rehabilitation is the key, and I
don't think it is, that that's what happened, and that they're
admissible.
THE COURT: Defendant Exhibit No. 3 will not be
received.
MR. POVICH: Your Honor, Exhibit 4 is a defendant's
exhibit, which is the search warrant and report inventory,Page 16
2l
which Ms. Moolenaar said she obtained from the Magistrate's
office.
THE COURT: Any objection?
MR. DIXON: No, sir, Your Honor. That's a part of
the Court's record.
THE COURT: Received.
(Defendant's Exhibit No. was received in evidence.)
MR. POVICH: Your Honor, Exhibit No. 5 is defendant
Moolenaar's notes as to the -- which were written during the
course of the meeting that she had with Agent Northrop and
Bloodworth. It sets forth in some detail the sequence of
events.
It corroborates what she testified to both on my
examination of her after she was cross-examined as an adverse
witness, and it addresses such important matters as which
boxes were opened and which ones were not, because it
indicates the contents -- references those that were opened
and looked at, and those that were not, and, Your Honor, it is
sequential, so that it shows that matters were taken not
numerically in order, as Mr. Northrop said, but only after
they had gone into other matters first and then started going
numerically in order.
It generally corroborates the material, Your Honor,
which she was viciously attacked on in some instances by thePage 17
ll
United States attorney, and it indicates that her testimony
with respect to the matters covered here was truthful,
particularly, Your Honor, the absence of any note whatsoever
about the contents of the controlled delivery package. Not
one word about that in these notes.
We think it is important for her credibility, since
the Government went to some lengths to show that Agent
Northrop was testifying correctly when he said it was opened,
and that she was not being truthful when she said that it was
not. I would offer her contemporaneous notes, Exhibit 5.
MR. DIXON: Your Honor, our problem with Defendant's
No. 5 is even more basic than with Defendant's 3. It's our
recollection that ~- and again, the Court's recollection
controls -- is that Ms. Moolenaar -- we don't even recall her
identifying Defendant's No. 5 as notes that she took at the
time when she was being interviewed.
Moving aside from that, even if they did, even if
they did have her identify Defendant's No. 5, again, we would
ask the Court, if the Court is going to allow this, allow
specifically not the whole notes -- well, I'1l withdraw that.
If the Court is going to allow one page, the doctrine of
completeness would apply that the page before and the page
after and whatever is relevant to explain that particular
entry.
But, again, our position, going beyond whether or notPage 18
it was properly identified, is that let's stick with straight
impeachment. You just can't -- we don't think you can just
give us a self-serving statement or some document to bolster a
witness's testimony, and that's basically what we have.
Corroboration is one thing, but again, that's
independent corroboration. Here we have something that a
witness wrote down. She may have included, she may have
excluded things for any one of a number of reasons. She may
have forgotten, and to this day does not recall that she
looked at the controlled delivery.
THE COURT: I would just note for the record that Ms.
Moolenaar did identify, according to my notes, Defendant
Exhibit No. 5 as her original notes taken at the time of the
meeting with the agent.
MR. DIXON: Very well, Your Honor.
But, Your Honor, moving away from that, the same
objections that we had to the earlier notes would apply to
this. If there's some specific passage that rehabilitates Ms.
Moolenaar on a particular point that she was impeached on, we
would have no problem with that, because that's fair, that
should come in, that's a prior consistent statement after she
was impeached on cross-examination, but we don't think that's
the case here, and what is happening is the Court is going to
get carte blanche one -- and I'm reluctant to say party -- one
witness's version of what happened, and it's memorialized byPage 19
ll
being in writing, and so far all the Court has is the
testimony that it has to make some judgment calls on, but we
think -- and we'll save this for argument at the appropriate
time -- there's more to it than that.
But our objections to Defendant's No. 5 would remain
the same as they would to Defendant's 3, Your Honor, unless
there's some specific passage or some specific phrase in the
notes that serves to rehabilitate Ms. Moolenaar on a point
that she was cross-examined on by the United States.
MR. HOFFMAN: Your Honor, may I?
THE COURT: Yes.
MR. HOFFMAN: Two points. One, there is, given that
concession, there are several points on which she was very
vehemently cross-examined, which those notes specifically
corroborate. One is what was reviewed at the meeting, and
most importantly, as will become clear when we argue the case,
the sequence of review of the material at the meeting, in
which she was impeached, and her testimony is in conflict with
that of Agent Northrop, who testified that the controlled
delivery was the first thing examined at the meeting. She was
impeached when she testified it was the last thing discussed
at the meeting, and then not examined at all.
I've rarely heard someone be impeached so severely.
Mr. Dixon suggested to her in questions and at the bench that
she was, for want of a better phrase, lying, because she hadPage 20
an interest in this case, and he questioned her professional
conduct.
It is, I think, a very well known and standard rule
that where there exists a contemporaneous utterance when
someone is accused of a recent fabrication, that
contemporaneous utterance is admissible. This is a
contemporaneous note of that very meeting in which she has
been accused of a recent fabrication in her testimony, and as
such those notes in whole are admissible.
MR. POVICH: I think that would apply -- Your Honor,
that was my point with respect to No. 3 as well.
THE COURT: Well, I have a feeling that there's a
difference between No. 3 and No. 5, for the reason that it's
my recollection that both Ms. Moolenaar and Agent -- not
Bloodworth but --
MR. POVICH: Northrop.
MR. DIXON: Northrop.
THE COURT: -- Northrop made notes, I believe,
concerning the order in which they looked at the exhibits in
question, and I think that order is significant for both of
them, because they were both questioned about the order that
they looked at the exhibits.
Now, of course, the agent's notes have not been
offered --
MR. POVICH: They will be, Your Honor, the raw notes,Page 21
ll
>
THE COURT: -- but they testified, as I recall, that
they did make notes as to the order in which they were offered
and reviewed, and having that in mind, and since that is a
matter the Court wishes to consider, and the fact that there
was testimony, as I recall, that these notes were made at or
about the time of this meeting, it seems to me that it is
significant and relevant, but, further, it is admissible.
Now, I find myself, looking at rule 803, trying to
find which pigeonhole it goes in, and I'm afraid I must advise
you that I'm reminded of a case I tried in the United States
District Court in Ohio once, where the judge ruled against me,
and I tried to get him to advise me of the basis of his
ruling, and finally, he said, "Well, all I can tell you, Mr.
Penn, is, I only have an old lawyer's hunch that I'm right."
MR. DIXON: The plenary power of the Court, Your
Honor (Laughter).
MR. POVICH: I could only suggest, Your Honor, it's
either subsection 1 or 24.
THE COURT: I will not admit to being an old lawyer,
but I think it is admissible, at least under 803-24, perhaps
under 803-1, and I'd have to look at it further; and I think
because, and the only reason is because, that note and the
other note as well set out the order in which they actually
looked at the diagram or the evidence.
MR. POVICH: Yes, sir.Page 22
THE COURT: Now, it can be argued, of course, that
they had an opportunity to refresh their recollection as to
that order by looking at their notes, and I think they
testified after looking at their notes concerning the order as
well, but I'm going to hold that Defendant Exhibit 5 is
admissible, and I'll receive it.
(Defendant's Exhibit No. was received in evidence.)
MR. POVICH: I would offer Defendant's Exhibit 7,
then, Your Honor, which is Agent Northrop's handwritten notes.
MR. DIXON: No objection, Your Honor.
THE COURT: I'll receive 7.
(Defendant's Exhibit No. was received in evidence.)
MR. POVICH: My last comment, Your Honor -- it's only
a comment. It's perhaps not necessary to the proceedings.
It's in evidence. It's perhaps not necessary to the
proceedings, but the United States attorney's office, there is
a practice which has grown up in the United States attorney's
office, and I can't put my finger on it, but I think it has
been condemned, of sending out what appears to be a subpoena
for a hearing which, in fact, is nothing more than a subpoena
to appear in my office so that I can question you about it.
I ask that Exhibit 1 be introduced, because that's
what this subpoena represents. It says that they are toPage 23
(Case 1:85-cr- - ocumen ile 6 Page 23 of
report to room so and so and such and such of the United
States attorney's office, and it has all the indicia -- in
fact, it's been typed on top of a subpoena of this Court, and
I -- every time I see this, I want to object to it, because I
think it's improper. A person can be subpoenaed to come to
court and asked if they would come to the person's office, but
they can't be subpoenaed to what appears to be coming to
someone's office first, and I just want to make that comment.
THE COURT: That's Defendant Exhibit 1; is that
right?
MR. POVICH: Yes.
THE COURT: That's already in evidence.
MR. POVICH: Yes.
THE COURT; All right, defendant have anything else?
MR. POVICH: No, sir.
THE COURT: All right, argument.
MR. DIXON: Your Honor, before we get to argument, it
appears that there's one other exhibit that should come in,
and I think the defense was about to proffer it, but they did
not, and that's, I think, Defendant's -- the Court will --
MR. POVICH: Six?
MR. DIXON: Defendant 6, and Your Honor, that is an
exhibit that the Court should have. We have already rested
our case.
THE COURT: Which one is that?Page 24
ll
MR. DIXON: That's the memorandum of Postal Inspector
Northrop, laying out what happened at the April 16th, hearing, a memorandum that was used to, indeed, impeach Agent
Northrop. On page, I believe it was, 4, Agent Northrop made a
statement on the witness stand, and he was impeached with
something that he said in the written memorandum, that he
identified and agreed was accurate, and the Court may recall
that I stood and asked under the doctrine of completeness that
the entire sentence be read, so that the matter would be
clear.
Your Honor, procedurally, I have rested. I would ask
the Court to allow the Government to reopen just for purposes
of admitting that particular exhibit. It has been identified.
In fact, it was used by the defense, and if we need to put a
Government sticker on it, I would ask the Court to allow the
Government -- first of all, I would ask the Court to allow the
Government to reopen to consider that.
THE COURT: First, what is Defense Exhibit 7?
MR. DIXON: That is -- 7 are the notes taken by
Northrop, and -- handwritten notes: and 6 is the memorandum
that he wrote as a result of consulting those notes, and I
think the Government would be out of the water if Defendant's
No. 6 had not been used, but it was used to impeach Inspector
Northrop.
THE COURT: But 7 are his original notes?
‘Page 25
‘
MR. DIXON: Yes, sir.
THE COURT: And 6 is a memorandum he prepared based
on those notes?
MR. DIXON: Yes, sir, that is more expansive than 7.
THE COURT: All right. Any objection?
MR. POVICH: Yes.
THE COURT: Well, first, for the record, I will allow
the Government to reopen its case for the purpose of -- well,
I don't know whether you wish to argue that point or not, Mr.
Povich.
MR. POVICH: No.
THE COURT: I will allow the Government to reopen its
case for the purpose of marking the exhibit in question as a
Government exhibit and offering it, and assuming that that's
been done, I'll hear your argument, Mr. Povich.
MR. POVICH: Yes, sir. This is a typewritten
memorandum, Your Honor, of the interview conducted by Agent
Northrop and Agent Bloodworth. It appears to be written by
Agent Northrop, and that's why I questioned him about it. It
doesn't indicate when it was written, the date, the time, at
what point it was written. Sometime subsequently to the
hearing. There is no date on it.
I questioned him about it principally because of the
absence of anything in the memorandum which he wrote as to
opening of the package, if you'll recall, was the principalPage 26
Case 1:85-cr-00033-JGP Document 4. Filed 06/19/86 =Pfr= = | ~Page 26-0f 82———
issue, and nowhere in this memorandum did he say -- was there
any reference to the fact that the package was opened at all.
I don't know with whom -- there was no testimony as
to the source of this information, whether he consulted with
Agent Bloodworth, whether he consulted with other agents. It
was simply an interview -- it was simply a memorandum written
by him, and I examined on it.
Now, as the Court knows, not every document used to
cross-examine a witness makes it admissible, and I don't think
that they're entitled to have an entire memorandum -- it's
called an investigative memorandum, memorandum of interview,
undated. Sources are not indicated. I don't think that that
entire memorandum or any portion of it is admissible.
I think, for the Court's purposes, the Court has
identified the issue with respect to contemporaneous notes of
what transpired at that hearing and not an investigative
memorandum of the interview written at some other point in
time that could draw upon other information and is not
necessarily limited to Agent Bloodworth's data -- I'm sorry,
Agent Northrop's data -- which is what Agent Northrop's
handwritten memorandum would have been, and under those
circumstances, Your Honor, I think it's -- I would object
strongly to it being introduced.
THE COURT: Mr. Dixon, are you offering the entire
document?Page 27
MR. DIXON: Yes, sir, I am, Your Honor.
THE COURT: May I see the document?
(Handed to the Court.)
MR. POVICH: I'm sorry, Your Honor, I may have
underlined something. Is that my copy or is it a clean copy?
THE COURT: I'm not sure whose copy it is.
MR. POVICH: If it's not marked -- good.
THE COURT: I don't see anything on it. Do you want
to take it?
MR. POVICH: That's fine. My marks are readily
apparent. Thank you.
THE COURT: Yes, Mr. Dixon?
MR. DIXON: Your Honor, with reference to -- I would
use the arguments made so eloquently by opposing counsel.
Matters of credibility are at issue, and I think the Court
will find that there are certain matters that Ms. -- recall
certain matters that Ms. Moolenaar testified about, that Agent
Northrop testified about, that were memorialized in this
particular item. For instance, the first line on the first
page:
"The discussion began with introductions, with all
four parties present, and a brief explanation of the
purpose of our meeting. The next order of business was to
obtain some personal information from the subject, Mr.
George Nader, i.e., personal history, after which some
234Page 28
background as to his line of business in connection with a
firm called International Insight and a magazine which he
publishes known as the Middle East Insight, and other
relevant materials to that company."
He then says: "It was explained to Mr. Nader by
Agent Bloodworth and myself that our discussion was to
center around the importation of child pornography in
violation of 18 U.S.C. 1462."
Ms. Moolenaar denied that on the witness stand. She
said something like that never happened. The Court will
recall that I asked her a specific question, and it came from
this memorandum.
The Court will recall that I asked Ms. Moolenaar
several other questions that came from this memorandum. Okay.
I invite the Court's attention to page 2, and the Court will
recall that my line of questioning on Ms. Moolenaar was as
follows:
"Ms. Moolenaar, is it a fact that Mr. Nader was asked
this question and he gave this response? He stated that
he jotted down the name and address of a company known as
COQ Company in Copenhagen, and kept that name and address
with him so that he may correspond with them and make
future purchases of similar material depicting young boys
in sexual activity?"
She said no, and the Court may recall that I askedPage 29
ll
Ms. Moolenaar a question in this fashion:
"Ms. Moolenaar, was your client asked this question,
and did he give this answer? He had stopped there in
Holland for one evening, and at the hotel he bought" --
this is on page 2, the bottom of the page -- "he had
stopped there in Holland for one evening, and at the
hotel he bought a magazine depicting young boys engaged in
sexual activity?"
Her response was "No, my client didn't say anything
like that at all."
Your Honor, we think that this memorandum -- well, we
think that it is significant by virtue of its conspicuous
absence from those that the defense wanted to move in.
We, also, Your Honor, think that it lays out in great
detail what happened, just as Ms. Moolenaar's contemporaneous
notes -- I think that's Defendant's No. --
MR. POVICH: Five, Your Honor.
MR. DIXON: -- Defendant's No. 5, and we think that
Mr. Northrop was cross-examined on the witness stand about
what happened at the meeting; he was impeached on at least one
occasion that I can recall that Mr. Povich has pointed out for
us -- that was on page -~ I'm sorry, I'm sorry. He was asked
to read through the entire memorandum, the Court will recall,
and he was asked: "Did you put anything in your memorandum at
all about showing or opening the controlled delivery?" And hePage 30
-——-—
said, "No, it's not there," and he said on the witness stand
that he showed it to her.
Your Honor, this memorandum was used ad nauseam by
the defense to impeach Mr. Northrop's credibility. There are
statements here that rehabilitate him, if you will, and there
are statements that go along the lines of what the defense was
after, and we think that the Court is entitled to it as the
finder of fact and as the concluder of law to have this
memorandum before it.
Now, the issue that Mr. Povich raised about when this
memorandum was written, we think is not a real issue, because
Agent Northrop identified it on the witness stand and said,
"Yes, I wrote it," and "Yes, that's mine." We think that
identifies it and that brings it into the ballpark. That
makes it material, that makes it relevant, and we think that
the Court should receive it to assist it in making a very
difficult decision on this case.
THE COURT: But you're asking me to -- well, if I
receive -- as I understand, you're offering this for for my
consideration of the entire document?
MR. DIXON: Yes, sir, I am, Your Honor, because the
Court cannot -- under the doctrine of completeness, if we were
to cut out -- if we were to expurgate or excise certain parts
of this document, what comes after that would not make any
sense if the Court didn't have the opportunity to read whatPage 31
ll
°
came before it; in other words, directing the Court's
attention to the first page, the first -- the last sentence on
the first page, "It was explained to Mr. Nader," and so on,
would make no sense without, we submit, without the preceding
sentence and without the next sentence, because it would give
a reader a false impression that that was the first thing that
happened at the meeting, that they sat down and they said to
Mr. Nader, "Okay, Mr. Nader, according to the Government's
view, we're going to explain to you that what you did was in
violation of the law. You imported child pornography," and
that just didn't happen. There was testimony from Moolenaar
and Northrop that that was not the course, the first thing
that happened. That was not the first thing that happened.
The first thing that happened was introductions and
biographical information, and then they got into other areas.
What I'm saying is if the Court were just to take that, based
on the impeachment of Ms. Moolenaar, just take that sentence,
it would be misleading because of what is the agreed testimony
from the other witnesses. They don't agree on that particular
sentence, but they agree on what happened before that and what
led up to that, and the demarcation comes when the
Government's witness says, "Hey, I advised them that they
should have been on notice that this has the trappings of a
criminal investigation." They say no, that never happened,
and, Your Honor, that's why we would ask that the entirePage 32
——#_———
document be received by the Court.
MR. HOFFMAN: Your Honor, may I?
THE COURT: Yes.
MR. HOFFMAN: Just a couple of statements. There's a
difference between this memorandum and Defendant's Exhibit 5.
A couple that are most important is that this is nota
contemporaneous memorandum.
The doctrine that we're talking about, when someone's
recollection of an event has been impeached, and they have
been accused of misrecollecting or misstating, if there's a
contemporaneous note that's one thing. This is something done
afterwards. This is what the agent produces as perhaps a
summary of what's happened. We have his contemporaneous
notes. You've already got them. They've been admitted.
That leads to the second problem of this. This has
double hearsay all over it. This has statements -- it appears
to have statements that he talked to others at the meeting to
get these statements, probably, most particularly, Agent
Bloodworth, because there is material in this document that is
nowhere to be found in his original notes. So the likelihood
that he spoke with someone else is great and included those
statements in here, and those other statements which cannot be
identified and separated are clearly inadmissible.
The third difference is that the United States did
not use this memorandum in reexamining after cross-examinationPage 33
the agent. Defendant's Exhibit 5 was identified and used by
Mr. Povich in examining Ms. Moolenaar, because of the way she
was impeached by the United States.
After Mr. Povich finished cross-examining, and did,
in fact, use portions of this, the United States chose for
whatever reason not to use any portion of this as a method of
rehabilitation, so the fact that it conceivably could be
rehabilitation isn't really relevant, because I assume by some
choice it was determined not to use this memorandum. It was
not referred to in any way by the Government in redirect in
rehabilitation of the agent.
For all of those reasons, this exhibit is materially
different from the exhibit that Your Honor has admitted as
introduced by the defense.
I believe Mr. Povich said it the first time, but we
do not know when this exhibit was created. We don't know how
long after this meeting, especially with relation to the
motions and what has been filed in this case, that this
memorandum was dictated by the agent.
MR. POVICH: Or typed.
MR. HOFFMAN: Or, as Mr. Povich --
THE COURT: Government's Exhibit No. 3 is not
received. Counsel have anything else?
MR. DIXON: No, sir, we do not, Your Honor.
THE COURT: All right, you ready for argument?Page 34
MR. DIXON: Yes, sir.
Your Honor, at the outset, the United States would
make the observation that this has been a most difficult case
for the Government and, most assuredly, we think that it's
been a most difficult case for the Court and the defense.
Your Honor, going right to the issue at hand, we
would submit that the statements made by Mr. Nader should not
be suppressed, the reason being, a, Mr. Nader was not in
custody at the time the statements were made; b, I think the
defense, by virtue of the Court's ruling, has to abandon its
earlier Wong Sun argument.
The Court will recall, in the defense's motion
papers, they attacked the statements as the basis of the
poisonous tree. Since the Court has ruled on evidence that
was seized, the Court has found that the evidence seized from
Mr. Nader's room should be suppressed, because of the
overbreadth of the search warrant; therefore, anything that
comes as a result of that should be suppressed as well.
Now, in dealing with the controlled delivery, the
Court has not suppressed the evidence that was seized during
the search, that being the controlled delivery.
Your Honor, that is what the -- the controlled
delivery, we submit, even knocking out the other evidence
taken from Mr. Nader's room, is what brought Mr. Nader and Ms.
Moolenaar to the office of the postal inspector.Page 35
ll
Now, Your Honor, we see this in a very strong clear
light. Miranda really doesn't apply, because Mr. Nader was
not under arrest, and Mr. Nader came voluntarily to, if we
will, the police station or the office of the postal
inspector, and indeed, Your Honor, Mr. Nader was in a much
better position than other defendants this Court has seen
before it in statements cases.
Your Honor, I would submit that the case law is -- it
is rare when you have a statement situation involving an
attorney who was sitting right beside her client. That is
rare.
Normally, the cases that we deal with, and the cases
that come before this Court, are cases that deal with a single
defendant confronted with the power and majesty, if you will,
of the Government, that realized through a police officer, an
FBI agent or some other law enforcement official, and that
person is alone in an unknown environment, in a foreign
environment, and is under a criminal charge by virtue of the
fact that he's either arrested or he or she cannot leave, and
that is the genesis of the whole Miranda protection that is
offered to defendants.
Your Honor, in this case, Mr. Nader's apartment was
searched. We submit the evidence shows that Mr. Nader's
attorney contacted Mr. Northrop. Now, the reason we think
that that fact should be accepted by the Court is as follows:Page 36
ll
2
How did the postal inspectors know, if the Court will, who Mr.
Nader's attorney was, after they executed the search warrant?
The Court will recall that Ms. Moolenaar said that
someone from the Government, either Postal or Customs, called
her, and asked her to come down. That was Ms. Moolenaar's
testimony.
The Court will recall that the testimony from the
Government was that Ms. Moolenaar contacted Northrop or Kelly,
and that was a result of leaving a copy of their business
cards as well as a copy of the search warrant affidavit, the
inventory and the search warrant.
Now, there's some dispute about whether or not Mr.
Gauntt actually received a copy of it, but, Your Honor, Mr.
Gauntt signed it, and that is in writing, and it reflects that
he stated that he received a copy of the affidavit.
But putting that aside for a moment, we would ask the
Court to credit our witness's testimony of the fact that Ms.
Moolenaar did contact our witness, because there was no way
for the witness to know that Ms. Moolenaar was the attorney.
So how would they know who to call? How would they know what
Mr. Nader was going to do?
The call was made, and Your Honor, this is, not where
the trouble sets in, but this is where the whole situation
starts. Ms. Gwynneth Moolenaar, Your Honor, is an experienced
special assistant, as she calls it, United States attorney.Page 37
She worked for the Department of Justice. She is admitted to
several bars.
We submit, Your Honor, Ms. Moolenaar saw a client who
was in fear of being arrested, in fear of allegations being
Made as to his sexual preferences, as they related to small
children, and Ms. Moolenaar wanted to handle this as
efficiently, as quickly and as non-media-wise as possible.
And the reason she took the course she did, and it’s not
unusual, was to locate this situation, to get in and speak to
the postal inspectors, try to find out what this case was
about, find out where it was going, and find out about their
evidence.
Your Honor, another thing we ask the Court to
consider when it makes this determination about the
motivations of Ms. Moolenaar -- and we think her motivations
are important -- Ms.
Ms. Moolenaar made a
tactical decision to
inspection office to
she was going to get
was a give and take,
Moolenaar was getting free discovery, and
tactical decision, we would submit, a
take her client into the postal
allow them to question her client, and
something out of the deal as well. It
Your Honor, and that is what Ms.
Moolenaar bargained for, and that is exactly what she got.
When she arrived at the office of the postal
inspector, she was under no misapprehension.
No one pulled
the wool over her eyes. If Mr. Nader had walked into thatPage 38
ll
office by himself, we would not be standing before this Court
today, because that clearly would have been foul play. I£ Mr.
Nader had walked in by himself, being a Lebanese citizen,
possibly -- possibly -- but we say as to the contrary as a
result of his education, his background, his business
interest -- possibly there would have been a question of
overreaching. But he walked in protected, the prophylactic of
an attorney, and we can only assume that they had a chance to
talk about this before.
We seriously dispute Ms. Moolenaar's contention that
she went down there the same date Mr. Nader went to see her.
We would take issue with that, Your Honor, but of course the
Court is the final arbiter of the facts.
Once they walked in, they sat down and they started
to talk about the matter at hand, which was the contraband,
the obscene pictures, the child pornography, and as time wore
on, Ms. Moolenaar assumed more of an advocate -- became more
of an advocate. She had the presence of mind to tell her
client not to sign anything, not to write or not to initial or
to date anything.
But she tells this Court in the same breath that this
wasn't a criminal situation. What was she thinking about when
she told her client not to do that? Does something suddenly
spring forth in her head that "Hey, maybe I shouldn't have my
Client do this"? And at that point, Your Honor, at thatPage 39
point, Mr. Nader had the protection of Ms. Moolenaar, and
legally, as far as the case law stands, as I understand it,
the Government didn't have to offer him anything, because he
had his lawyer right there. We didn't even have to advise
him. He had his lawyer right there with him, a criminal
lawyer, an assistant United States attorney.
Now, there came a time when we did advise Mr. Nader
of his rights. We would submit to the Court that that was
even unnecessary, but Northrop did it anyway, and at that
point, approximately an hour, an hour and a half, maybe two
hours had elapsed during the course of the interview. Mr.
Nader had made very damaging statements establishing a nexus
between himself and the evidence that is remaining, that being
the controlled delivery, admitting he ordered it, telling us
how he ordered it, with his lawyer sitting right there.
He was Mirandized, he was read his rights; they were
explained to him. His lawyer was right there. She even
signed as a witness. And the questioning started anew about
the same area, over the same subject matter, and again Mr.
Nader made the same damaging admissions against his interest.
After the interview was over, at 5:00 o'clock or
shortly thereafter, Mr. Nader got up out of the office and
walked away, and he remained free, up to the time he was
called before the Court by way of indictment. And he still
remains free today. He's out on bond.Page 40
Ease 1:85-cr-00033-JGP—Document 4 Filed-06/19/86—Page 40 of 82——_——______—
Your Honor, at no time, at no time ~-- we would submit
that defense could not stand before this Court and make a
Miranda custodial argument because it just didn't exist.
Now, what I suspect the defense will try to do is
create a situation by which Mr. Nader was misled. What I mean
by that is this. That promises were made to Mr. Nader through
his attorney that no charge would be brought, that no
prosecution would follow, if they would come down and talk to
us, and, Your Honor, we think that the facts and circumstances
bear out that that did not happen, and the hard, hard fact is
that Ms. Moolenaar should have known better, and she -- and
the Court recalled that she said on the witness stand herself
under cross-examination, I asked her:
"Ms. Moolenaar, you were a special assistant U.S.
attorney, and you worked criminal cases?
"Yes, I did.
"Did you ever have an occasion in which a law
enforcement officer made a decision on prosecution?
"No.
"That would be unusual, wouldn't it?
"Yes, highly unusual."
And that was the colloquy, Your Honor.
"Ms. Moolenaar, did you know and appreciate that when
you walked into that interview on April 16th, 1984?
"Yes."Page 41
Your Honor, we think it's plain and simple. No one
pulled the wool over Ms. Moolenaar's eyes. No one lied to
her. No one coerced her. No one threatened her or Mr. Nader.
They made a tactical decision, and we submit that the
Court should not enter its judgment for that judgment of an
attorney who's on the line, Your Honor. MTwenty-twenty is
always hindsight. This is what Ms. Moolenaar thought was the
best thing to do for her client.
In reality, maybe Ms. Moolenaar should have gone in
and the first words out of her mouth is: "Everything that we
talk about from this point forward is off the record. You and
I are going to have a discussion about what you have, and we
will make a decision as to if we want to cooperate with you or
whatever the situation may be." Being an experienced special
assistant U.S. attorney, that should have popped into her mind
almost immediately, but she chose not to follow that course.
And I don't know, even if the Court were to say to
the Government, "Well, Mr. Dixon, I understand what you're
saying, all of that is true, but the Court on a public policy
theory has to step in; where it appears an attorney is acting
in an ineffective manner, we have to step in and protect the
unassuming public."
But, Your Honor, we would ask the Court to view this
situation as Strickland vs. Washington points out. We would
submit that Ms. Moolenaar may be guilty of making a poorPage 42
ll
Case-1:85-cr-00033-JGP—Document 4—Filed-06/19/86Page-42-of
judgment call, but she was not incompetent, she was not
ineffective, because Strickland, the newest case from the
Supreme Court on ineffective assistance of counsel, says you
look at the standard for the particular community of lawyers
that you're talking about, and here in Washington, D.C., I
think the Court can readily state and even agree with the
United States, that criminal attorneys in this jurisdiction
always meet with prosecutors; not always, but more often than
not they meet with prosecutors when they have defendants, to
try to work cases out. Pre-indictment pleas have sprung from
those, cooperation agreements where the defendant is going to
cooperate to assist the Government in investigating another
wrongdoer, and those situations are a matter of record.
What I mean by that, Your Honor, is we did not see
any piece of paper coming from the defense or from the
Government to the effect that the United States and Mr. Nader
have a deal. Ms. Moolenaar could not produce one shred of
paper signed by a prosecutor, even signed by Northrop,
indicating that no prosecution would follow if she came down
and had her client submit to questioning.
Your Honor, we submit that all the cases we've cited
in our motion papers and most notably Miranda talks about it.
There's a passage in Miranda, if I may, which reads:
"The presence of counsel in all cases before us today
would be the adequate protection device necessary to makePage 43
ll
the process of police interrogation conform to the
dictates of the privilege against compelled
self-incrimination. Counsel's presence would insure that
statements made in the Government-established atmosphere
are not the product of compulsion." Miranda vs. Arizona,
384 U.S. 436, 466.
Your Honor, when we're talking about a one-on-one, a
defendant with a police officer, or the defendant against the
Government, we've got a long hard row to hoe, especially ina
situation like this, to show that a person made a voluntary
and free statement, but in a situation where you have an
attorney present -- this isn't a rookie, this isn't someone
right out of law school. This is an experienced criminal
lawyer.
She had the options, weighed the options, and made a
tactical decision to take her client down to speak with the
postal inspectors, and that's exactly what happened. It was
give and take. She had to give something to get something.
She got free discovery. She got to look at all those
magazines, even before the prosecution, before the grand jury.
THE COURT: Well, she had an opportunity to look at
them.
MR. DIXON: She claims she didn't look at them. But
that was even before the grand jury had a chance to look at
them, even before the Government prosecutor had a chance to
‘-——>Page 44
ll
review the evidence that we had.
And, Your Honor, I urge the Court to find factually
that Mr. Nader came to the postal inspection office
voluntarily; that he came with counsel; that he had
representation from an experienced attorney; and legally, that
the statements, the incriminating statements he gave -- and he
did give incriminating statements at both stages, pre-Miranda
and after Miranda -- were made freely and voluntarily, with
the advice of counsel. And that's in the alternative, because
our first position is, Your Honor, that Miranda didn't apply
to the situation, because it was non-custodial and because the
man came in with a lawyer.
Your Honor, we would ask the Court to so find and
deny the portion of the defense motion that goes to the
Suppression of statements, and stand ready to respond to any
questions that the Court may have.
MR. HOFFMAN: Thank you, Your Honor.
A couple of preliminary matters that I should voice,
although I am sure the Court is aware of them, having written
the opinion in this case that brings us here today. First --
and, Mr. Dixon, I'm sure he understands this, but didn't start
from this premise -- the Court has already held the warrant in
this case was invalid, unconstitutional. The Court has also
held that a subsequent search was illegal. The Court has
further held that everything seized by the Government, all
-——Page 45
ll
fourteen bags of material that belonged to Mr. Nader, was
seized illegally and has been suppressed.
The only thing that remains in this case from that
search is the package that was intercepted at the border,
delivered to the defendant's home when he was not home, taken
from his home before he came home; a package the defendant
never saw, never had in his possession. Everything else in
this case has been suppressed.
Your Honor, in this hearing, as a result of that
prior ruling, the burden is on the United States to show that
the statements in this case did not result from an
exploitation of the illegally seized evidence. That's the
operative phrase. They have the burden of showing that these
statements were not the result of exploiting the illegally
seized evidence. They must show that the statements were the
result and obtained by means sufficiently distinguishable to
purge that primary taint. The Supreme Court recently so held
in Taylor vs. Alabama, 457 United States 687. It's a Supreme Court opinion.
Your Honor, the Government has premised most of its
testimony and a large part of its argument on Miranda vs.
Arizona, and the giving of Miranda warnings and the signed
waiver of rights by the defendant. Your Honor, that argument
in this case is a complete red herring. The Supreme Court in
Taylor expressly so held, and let me read Your Honor a briefPage 46
paragraph from Taylor:
"The State points to several intervening events that
it argues are sufficient to break the connection between
the illegal arrest and petitioner's confession."
That was an arrest case, this being a search case,
and I'll get to the distinction in a moment.
"It observes" -- the State does in Taylor -- "that
petitioner was given Miranda warnings three times. As our
foregoing discussion of Brown and Dunaway demonstrates,
however, the State's reliance on the giving of Miranda
warnings is misplaced."
The giving of the Miranda warning is misplaced, Your
Honor, because this isn't a Fifth Amendment case. We're not
here discussing the custodial environment under which Mr.
Nader may or may not have been.
This is a taint hearing. The purpose of this hearing
is to determine whether they exploited this illegally seized
evidence. This is a Fourth Amendment question, not a Fifth
Amendment. The presence of counsel for the defendant, the
giving of the Miranda warnings, the fact that he was not under
arrest is irrelevant. The question here is: Did they exploit
this illegally seized evidence to obtain statements from the
defendant?
The Court in Taylor held that when you're doing a
taint hearing, the giving of Miranda warnings doesn't even
+Page 47
} or. f-). A-TZ. £OQO
matter in the Fifth Amendment context, in a confession. That
is especially true in the context of a Fourth Amendment
question, in illegally seized evidence.
Your Honor, we cited some cases in our initial
memorandum. There are two others which were directly on point
in this case. I'm going to have trouble pronouncing the first
one, but it's United States vs. Rubalcava-Montoya, 597 F.2d
140. It's from the Ninth Circuit, and I'm quoting from page
143, where the Court said:
"The Government has not rebutted the logical
inference on these facts that the incriminating 'evidence'
discovered in the course of the illegal search was used to
persuade these witnesses to testify. ... The probability
that official Government action, based principally on
evidence provided by the search, induced Ventura's
testimony suggests a close, direct link between the
illegal search and the testimony used against the
appellants."
The Ninth Circuit elaborated on that same thought,
Your Honor, United States vs. Taheri, 648 F.2d 598. At page
601, where they discussed the seizure of opium from the
defendant in an illegal search of his car and subsequent
statements, it says:
"Shortly after the appellant was illegally arrested,
confronted with the illegally seized evidence, and advisedPage 48
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of his Miranda rights, he executed a written consent to
search both his car and hotel room where the opium was
discovered.
"The government seeks to justify admission of the
opium evidence because of the appellant's consent. ...
The evidence found as a result of that consent must
nonetheless be suppressed if the unconstitutional conduct
was not sufficiently attenuated from the subsequent
seizure to avoid exclusion of the evidence."
The Court held in that case there was no sufficient
attenuation.
"The government, which bears the burden of showing
admissibility in these circumstances, points to no
intervening events which would show Taheri's consent was
‘sufficiently an act of free will to purge the primary
taint of the unlawful invasion.'"
Your Honor, what those cases suggest, as in this
case, that what we focus on is whether the Government
exploited the evidence that it obtained in that illegal search
of Mr. Nader's room to get statements.
THE COURT: Well, in those two cases, were the
defendants represented by counsel?
MR. HOFFMAN: Were the defendants represented by
counsel at the time the statements were obtained? I do not
believe, on the facts of those cases, Your Honor, that thePage 49
Case 1:85-cr-00033-JGP—Document 4—-Filed-06/19/86—Page-49-of
defendants" counsel were present with them. I do not know
whether they were represented by counsel at the time. That is
not apparent on the face of the pleadings.
Your Honor, I think that the use of the Government's
reliance on the fact that the defendant was in a non-custodial
situation and was Mirandized is best rebutted by a couple of
statements that Professor LaFave included in his treatise that
we cited in our original memorandum on pages 28 through 30,
and we have the cites in those memorandums at those pages,
Your Honor. It's pointed out by Professor LaFave that:
"Statements based on the presence of illegally seized
evidence are more suspect than statements made after an
illegal arrest, because confronting the suspect with
illegally seized evidence tends to induce a confession by
demonstrating the futility of remaining silent."
The Supreme Court of California in a case very
similar to ours said that:
"If Miranda warnings were held to insulate from the
exclusionary rules confessions induced by unlawfully
obtained evidence, the police would be encouraged to make
illegal searches in the hope of obtaining confessions
after Miranda warnings, even though the actual evidence
seized might later be found inadmissible. To so hold
would result in the Miranda warnings, which are intended
to protect the defendant's right to counsel and to remainPage 50
silent and to prevent exploitative police practice,
becoming the instrument of a bootstrap operation to
insulate unlawful police activities from the effect of the
exclusionary rule."
That's what we have in this case, Your Honor.
THE COURT: When would such evidence ever be
admissible, or such statements?
MR. HOFFMAN: The statements would be admissible,
Your Honor, if, for instance, there was an illegal seizure in
a case, but there was also legal seizures of legal evidence
that were very persuasive, and based on the legal evidence
that the defendant is confronted with, he decides that it is
in his interest to make some statement. That's not in the
case here.
THE COURT: Suppose it's 90 percent illegal and percent legal seizures? That's close to what we have here.
MR. HOFFMAN: If it is 90 percent legal and percent illegal --
THE COURT: You've reversed it.
MR. HOFFMAN: I'm sorry. If it's 90 percent illegal
and 10 percent legal --
THE COURT: Yes.
MR. HOFFMAN: -- and both types of evidence sit on
precisely the same level, I think a much stronger argument can
be made that the statements are admissible, but as we'llPage 51
demonstrate here, and as I think Your Honor will see, the
evidence in this situation is not on the same footing.
See, what happened here, Your Honor, is we have a
seizure of a massive amount of evidence that is potentially
illegal from the defendant's room. It was unwrapped, it was
in his possession, had his name on it. It was together with
all his other material that clearly indicated his ownership.
That's one type of evidence.
Then we have another thing. We have an envelope. It
was delivered. That's why we brought Mr. Gauntt here to
testify, Your Honor, even though I think the Government cannot
dispute this. That envelope was delivered when Mr. Nader was
out of town. The Government tried to deliver it three times.
The third time they left it, knowing he was out of town.
They then went and got the search warrant. They came
back, took the envelope back. He was still out of town.
They didn't leave the inventory. That fact is clear.
But even if they did, I ask Your Honor to look at the
inventory -- it's been admitted -- the package is not listed
on the inventory. The package is not listed on the inventory.
The only things listed on the inventory are the things that
were taken from the defendant's room.
The defendant didn't even know the package existed
when he came down for that meeting. He knew his room had been
ransacked. He knew they had gotten -- I don't know how manyPage 52
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(———
magazines are in the material that we've looked at, Your
Honor, but it's fair to say dozens. He knew that they took
his photo albums, he knew that they took all his other
personal documents, and he knew that he needed those back. He
knew they had his passport, and he couldn't travel without it.
He knew all of that. He knew nothing about this package.
THE COURT: He knew about the package once he got
there.
MR. HOFFMAN: Once he got there, that's correct, and
I think that that's important. The sequence of events that
happens at the meeting with Mr. Nader does become very
important, because of what Your Honor said, because of the
separation between illegally seized and legally seized
evidence, but in this case, that package is an entirely
different situation from all of this other evidence.
Your Honor, I think there are two facts that are at
issue in this hearing that are disputed that are important.
The principal one, principal fact that is important, is the
sequence of review of this material at the meeting, and I
think Your Honor has recognized that in discussing the
admissibility of certain of these documents.
If the Government presented Mr. Nader -- I shouldn't
say if. The Government presented Mr. Nader, when he walked in
that room, with a mass of illegally seized evidence. It was
sitting there in this -- I don't know if it was described. IPage 53
(>
think it was described as a hamper, three feet by three feet
by two feet, in fourteen bags; dozens of magazines that Your
Honor has held in a footnote in the opinion, you cannot
quarrel with the determination that at least some of those are
obscene, and others are of a similar character to that which
was in this sealed package.
Upon confrontation by Mr. Nader, we submit, with all
of that material, any statements he made at that point are the
fruit of the poisonous tree. Those statements are induced by
the presentation of that evidence. That's the purpose. That
was the Government's objective.
Under cross-examination by Mr. Povich, although
reluctantly, Agent Northrop acknowledged that the reason all
of that material was sitting there was so that he can show it
to the defendant: "Come on, George, look at what we've got
here." The presence of counsel doesn't matter to that, Your
Honor. It's the smoking gun. "We have got the handgun that
was used to kill this person. Your fingerprints are all over
it. You want to talk to us?"
If that handgun has been illegally taken, any
statements made after that, whether there's a lawyer there or
not, are the fruits of the poisonous tree. It's a deliberate
exploitation of illegally seized evidence. They have used all
of this other evidence to make Mr. Nader talk.
Does the Court believe for a moment, if the onlyPage 54
‘
evidence in this case, and the only legal evidence in this
case is that package, that Mr. Nader would have come down and
made the statements the Government contends he made about that
package? No. What the Government did is, they took out the
magazines.
Now that Your Honor has the notes, this is critical.
Look at the notes. Look at the sequence of this meeting. The
agents testified -- and I'll get to the agent's credibility
and a couple of things that we would ask Your Honor to
consider -- the agents testified, and I would submit the
agents so testified because they are knowledgeable about the
law and know the importance of these facts, that the first
thing they went over at that meeting was this package. They
did that because they know what Mr. Dixon is going to argue,
that statements made as a result of being confronted with
solely that package are admissible, because the package, the
Court held, was legally seized.
In fact, if you look at -- don't take, for the
moment, Ms. Moolenaar's notes. Take Agent Northrop’s notes.
Look at his handwritten notes: his handwritten notes, the
contemporaneous notes. Not a word about reviewing this
package in the first part of these notes. Not a word.
It says yes --
THE COURT: Is that 7?
MR. HOFFMAN: This is 7, correct.Page 55
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. rT. cc £oQy
(
THE COURT: Seven, all right.
MR. HOFFMAN; It says yes, he ordered pornographic
Magazines of boys, and then it goes into some description.
And then it says Bag No. 1. That's where it says "refused to
initial. Admitted ordering magazines."
Then it says Bag No. 2, 3, 4, 5. Six is skipped,
Your Honor. I'11l tell you, I think it's clear why 6 is
skipped. We'll get to that in a minute.
But do you believe that this experienced agent --
this is what the Government is asking you to accept as a
fact -- that this experienced agent would have gotten an
admission from the defendant that he ordered the very package
and knew what was in the very package that is the subject of
the controlled delivery, and is going to be the focus of their
criminal investigation, and when the defendant so states at
the beginning of the meeting, he wouldn't write it down? He
didn't write it down? Apparently he says it was said, and he
wrote down he admitted ordering No. 1, he wrote down that he
generally admitted ordering some magazines about boys, but he
didn't write down that he admitted ordering this package?
Now, for purposes of this hearing, Your Honor, for
purposes of this hearing, the ultimate credibility
determination about whether Mr. Nader admitted ordering this
package is not at issue. I repeat that again. This is a
motion to suppress whatever statements he made about thisPage 56
Case 1:85-cr-00033-JGP Document 4 Filed 06/19/86Page-56 of
package. Whether Ms. Moolenaar is right in saying he made no
admissions about ordering this package or Agent Northrop is
right, the Court need not decide that.
What the Court need decide is whether whatever
statements they got out of this package were the result of
exploiting this illegally seized evidence, and on that these
notes are almost conclusive, because these notes suggest they
went through that material bag by bag first, and before they
got to that, before they got to that, Your Honor knows what
they did. They went through Bag No. 6, because Bag No. 6 is
the bag that had the pictures of the boys in it.
Agent Northrop testified that his primary concern in
this case is making sure that there were no children involved.
So what he did when they got there is, the first thing he
pulled out and talked to the defendant about is: "Who are
these boys? Give us their names and addresses. We want to
know who these people are." And then maybe he starts talking
to him about molestation.
Of course, The defendant knows he's involved in no
molestations, and the Government has conceded that for
purposes of this case, and he says, "You want those names? I
didn't do anything there. I'll cooperate with you on that.
Here's their names and addresses." And they get him talking.
They exploited the illegally seized evidence.
The Court has specifically held that the purpose ofPage 57
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—>———
the Government in seizing that kind of material was illegal,
although perhaps not something to be condemned, given all of
our feelings about their desires to make sure that there are
no sexual offenses involved. It was illegal. Their petitions
had no basis in probable cause, were not presented to the
Magistrate, were not used as a justification for this warrant.
But that was the first thing that they did at this meeting.
That's why Bag No. 6 is not listed. It goes l, 2, 3, 4, 7.
Now, look at Ms. Moolenaar's notes, Your Honor. Look
at Ms. Moolenaar's handwritten notes of this meeting taken
contemporaneously, before she knew there was going to be any
issue about this in this case. They go through the background
material, prior employment, all consistent with what the agent
also testified.
They came to Washington, D.C, his immigration plans,
all consistent. First thing reviewed from the miscellaneous
box is Bag No. 6. Contemporaneous notes. Pictures of cousins
in Norway, close family friends. Gives the family name.
Tells who the boys are.
Then go over fifty pictures of boys, to identify who
they were. Not obscene pictures, just pictures.
The next thing they get to is the defendant's
passport, which isn't surprising, because one of the reasons
the defendant wanted to go down there, in all probability, and
the agents testified to this, is they knew he traveled a lot,Page 58
ll
and they had his passport. He couldn't leave, he couldn't do
any of his business, he couldn't go out of the country, unless
they would give him back his passport. So then they talked
about his passport.
Then the next thing that happened is they went over
Bag No. 1. Your Honor, in determining credibility, I ask you
to look at the following, because this is extremely important.
Ms. Moolenaar did not hesitate to write down on these notes
where an admission is made. You see under Bag No. 2 -- and
this is a damning admission on her part -- it says under Bag
No. 2, "Admitted ordering magazines.”
The defendant did admit placing some orders. He did.
Agent Northrop says that he admitted it. Ms. Moolenaar says
that he admitted it. He admitted ordering those magazines
that the Government already had conclusive evidence he'd
ordered. They were in his home, they were unwrapped, they
were in his dresser, they were under his bed. They were
wherever the Government took them from when they illegally
searched.
You flip through all those bags, confronting the
defendant with fourteen bags of illegally seized evidence, and
then you get to the controlled delivery, and that's what
happened, Your Honor. They made a concerted effort to wear
him down with all this material that they knew was in his
room, that he had no possible explanation for. They had him
ase 1:85-cr-00033-JGP Document 4 Filed 06/19/86 Page 59 of
dead to rights. The cat was out of the bag, as one of these
decisions says on illegal searches. The cat was out of the
bag, and then they got him to make statements about this
illegal package.
THE COURT: What was in Bag No. 9?
MR. HOFFMAN: What was in Bag No. 9? Bag No. 6 you
mean?
THE COURT: Nine.
MR. HOFFMAN: The only thing written on these notes
is that there was high school material. It says "High school
ID." As Your Honor will recall, I believe there was a high
school book that was taken, some material from Carmel, Ohio,
where the defendant went to high school. I suspect that
that's what's in those bags.
Your Honor, I think we'll have trouble if we go back
to the evidence in its present form and try and compare it
with this. I don't believe the condition of the evidence is
the same. I don't believe the same material is in the same
bags. We have to go based on what's in the contemporaneous
notes, because the bags are no longer the same. It's been
looked at and placed in different bags. No one did anything
intentionally, I'm not suggesting that. I'm just suggesting
that this is all we have. They're not the same. We can't go
back and examine it based on its current condition.
Your Honor, I think what we have here is a classicPage 60
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case of exploitation of illegally seized evidence. The
Government has failed to demonstrate any sufficient
explanation for the defendant making any statements about the
only evidence that remains in this case, which is this
package, other than the exploitation of the evidence which was
illegally seized.
Whatever statements were made about the controlled
delivery, whatever statements there were -- and I repeat
because I think it's important, and it was a major focus of
this hearing; even though it was for purposes of this motion
not a critical determination, it was a major focus of this
hearing -- what statements the defendant did, in fact, make
about that controlled delivery -- and we all got sidetracked
into discussing that, into a debate between Ms. Moolenaar and
the agent about did he acknowledge that he knew such and such
or did he not.
That issue is not the critical issue here, because
whatever statements the defendant has made came after an
exploitation of the illegally seized evidence, and under the
standard of Taylor vs. Alabama, going all the way back to Wong
Sun, the original case on the fruit of the poisonous tree and
the taint doctrine, this is a case in which whatever
statements were obtained have to be suppressed.
Your Honor, I want to address one other thing,
because Mr. Dixon talked credibility, and as I've said, on thePage 61
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sequence of events, credibility is in issue here. I ask you
to consider the following things in considering Agent
Northrop's credibility. The first one is his testimony
regarding the inventory for conducting the search.
He said he was certain, absolutely certain, that that
inventory was left in the home. Your Honor, we've established
conclusively, I believe, that that inventory was not left in
the home. Mr. Gauntt has absolutely no reason to lie. He has
no interest in this proceeding. He signed it, because the
Government said we need you to sign this. He's a 70~some year
old man who testified he trusted the government. They told
him "I need you to sign this," and he signed it.
Did they leave a copy with him? Absolutely not. He
would remember, for God's sake. I said, "Assume that this
man's house has not been searched very often." When four
agents came into his house and searched it, if they left
something, he would remember it, and he doesn't remember it,
because it didn't happen. He testified he did not receive a
copy.
THE COURT: He signed it.
MR. HOFFMAN: Sure he signed it. They gave it to him
and told him to sign.
But that's not the only evidence, Your Honor. Ms.
Moolenaar is not lying about it. She picked up the pink copy
at the Clerk's Office. When she went downstairs to get a copyPage 62
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of the inventory and the warrant, the pink copy, which is the
recipient's copy, the copy that they would have left, had they
left a copy, was attached to that material. That's where she
got the inventory.
Besides that, Your Honor, if she had the inventory,
what the heck would she need to go down there to go over what
had been obtained in the search? It's listed in the
inventory. The Government contends that her motivation was to
get free discovery. If you had that inventory, you don't need
the discovery. It says in there, "20 obscene magazines of
boys, passport." Whatever they took is listed.
On my copy, the Xerox that's admitted, you can't read
it very well, but the pink copy is better. You don't need
this kind of free discovery that's supposedly the reason they
came down there. It's listed in the inventory. She didn't
have the inventory. The agent's testimony on that point is
simply not credible.
The second thing, Your Honor, is he testified that he
is absolutely certain this package was opened and the contents
were displayed. Absolutely certain.
Your Honor, I said that I believe the agent in this
case knows the law. He demonstrated that much when he talked
about Miranda. He was very knowledgeable about Miranda and
the fact that he didn't have to give Miranda warnings because
this was a non-custodial setting. Very careful about that.Page 63
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. ‘led-06/19/
To believe that the agent would go over the very package
that's the controlled delivery, is the focus of this case, and
not write it down is not credible.
So, on the ultimate issue in this case, which depends
in part, in part, on the sequence of inspection, I ask the
Court to credit Ms. Moolenaar's testimony, that what happened
here is they went over the illegally seized evidence to induce
the defendant to make statements. That's precisely what they
did, and that's precisely the reason the Court should suppress
those statements. Thank you, Your Honor.
THE COURT: Of course, at the time when they went to
the agent's office to view this material, it's obvious that
counsel would have known that there was a package or something
to that, triggering the search warrant, isn't it?
MR. HOFFMAN: She may not have known that, Your
Honor. I don't think it's obvious at all. A defendant with
this quantity of material in his room, there could have been
Many other methods by which they obtained the search warrant.
There could have been somebody who testified that there's a
paedophile at this address. They could have presented that
evidence. She did not have --
THE COURT: I think she testified that, throughout
this meeting, she saw this envelope, even though she said it
was never opened, but she saw this envelope sitting on the
table.Page 65
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MR. HOFFMAN: At the time of meeting, there was no
question that there was knowledge that there was an envelope
in this case. There was also knowledge that there was all
this other paedophilia in the case, all of these other
magazines that they could have prosecuted at that time the
defendant for obtaining.
THE COURT: Well, of course, presumably, you say they
could have prosecuted, but I suppose counsel could also have
thought there was a chance for a motion to suppress, if they
were seeking to prosecute him.
MR. HOFFMAN: At that time, Your Honor, counsel did
not even have the affidavit -- I think there's undisputed
testimony counsel did not have the affidavit or the search
warrant which resulted in the entrance of the defendant's home
and his room. She knew that there had been a search, and she
knew that a lot of material had been obtained, but she didn't
know what it was, and she didn't know how they got in there.
But, Your Honor, I think what we have to --
THE COURT: Of course, she could have asked for it.
MR. HOFFMAN: She could have asked, Your Honor.
There's no question she could have asked. But I think what we
have to focus on is not what the defendant's counsel's conduct
was. I don't think that's really the issue here.
We acknowledge that this is not a custodial setting.
We're not saying that the defendant was pressured throughPage 66
questioning at which he should have had a lawyer to make
statements. What happens, though, is the lawyer is distinctly
irrelevant to this determination.
"We've got you. Here's all of the evidence. Do you
want to talk to us about it?" Particularly, Your Honor,
particularly when they bring up the subject of child
molestation. "Here are these pictures of these boys. Tell us
who they are. Tell us where we can talk to them." And the
defendant, being confronted with what he at that time did not
know was illegally seized evidence, says, "I'll give you those
names and addresses. I didn't do anything wrong. You can go
check it out," and he does so.
THE COURT: Of course, you almost act as though the
defendant was there without his counsel. He did have an
attorney there.
MR. HOFFMAN: That's correct, Your Honor. We
obviously don't dispute he had an attorney there. But I don't
think, Your Honor, when the issue is confronting someone with
illegally seized evidence that induces a statement, the
presence of counsel is a determinative factor, unlike the
Fifth Amendment.
THE COURT: But it is a factor.
MR. HOFFMAN: It may be a factor. It may be a
factor. It's not irrelevant. They're entitled to bring it it
up. I think it's admissible in this hearing. But it's not aPage 67
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———_______,
determinative factor on the decision about whether the
Government has exploited the illegally seized evidence, which
is the critical question. The presence of counsel doesn't
make the presentation of illegally seized evidence,
particularly this massive quantity of illegally seized
evidence, any more legal, or it doesn't make the defendant's
statements any less a product of being confronted with that
material than if there was no lawyer.
If he had come in, into a non-custodial setting, and
been confronted with this illegally seized evidence and made
statements, I don't think that would be materially different
than the situation in this case. There might be the question
that Mr. Dixon said we could have raised, had he been alone,
about overbearing his will, Fifth Amendment type violations,
but those questions aren't before the Court. Those questions
have not been raised. As to those questions, I think it
clearly would make a difference. As to this question, this
taint here, I think it doesn't make a difference.
I think the cases that discuss how the warnings of
the defendant, the cautioning of the defendant, the giving him
of his Miranda warnings in that one case we read -- in the
Supreme Court case, they said it three times, repeatedly
telling him, "You have the right to remain silent. Don't make
statements. Anything you say can be used against you, can and
will be used against you." No question of the defendant notPage 68
understanding his rights in those cases.
When you read those cases, all of the cases we cited
today and the ones in the initial memorandum, none of the
cases suggest that the defendant somehow didn't understand his
right to a lawyer, or didn't know he could ask for a lawyer.
The point that those cases make is once you confront him with
the evidence of the crime, the cat is out of the bag. Silence
is futile. They demonstrate the futility of the silence. The
lawyer's being present doesn't make silence any less futile.
Thank you, Your Honor.
THE COURT: Mr. Dixon.
MR. DIXON: Your Honor, just a few brief points.
Your Honor, I would agree with Mr. Povich and Mr.
Hoffman wholeheartedly, had not two things happened, and Mr.
Hoffman very politely stayed away from both. They base their
argument on a Fourth Amendment violation.
Your Honor, the Court will recall, in reading Wong
Sun, the seminal case on taint, the second part of the
decision went to Wong Sun. A man who was arrested on one
date, was released on another date. Some time passed, and
that's the crucial, one of the crucial factors in this case
that Mr. Hoffman stayed away from, to get away from the taint
argument.
The search was on April 12th. Mr. Nader wasn't there
on April 12th. The interview was on April 16th, four daysPage 69
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Case -1:85=cr-00033-JGP—Document 4—-Filed-06/19/86—Page-69-of-
later.
All the cases that Mr. Hoffman cites stand for those
propositions that he said they stood for: immediately after
arrest a person is confronted, or shortly after arrest a
person is confronted. But we don't have that here.
That's why Mr. Hoffman didn't talk about it, because
the taint -- assuming, arguendo -- and we don't agree there
was a taint -- but assuming, arguendo, there was, it was
attenuated by the time that Mr. Nader had the presence of mind
to get the card that had been left by Northrop, the presence
of mind to find an attorney, a criminal attorney, a special
assistant United States attorney. Now, he didn't know that at
the time he got Ms. Moolenaar, but he had the presence of mind
to find an attorney -- that's two days gone -- to discuss the
case with the attorney, and we -- and we, of course, with this
rendition, are disputing what Ms. Moolenaar said -- to find
the attorney, to discuss the case with her, for her to get on
the phone and set up an interview, some four days later, and
within that four-day time period, she could have come down
here and got a copy of the search warrant, come down here and
got a copy of the inventory, even though we dispute an
inventory wasn't left. She could have done a whole number of
things. That's the first thing Mr. Hoffman didn't want to
talk about.
The second factor that he did talk about, and triedPage 70
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Case-1:85-cr-00033-JGP— Document 4—Filed-06/19/86—Page-70-of
to minimize, and rightfully so, and that is, after the taint
has been attenuated by four days, a meeting is held, a meeting
not like Wong Sun, where he goes in with his lawyer, a
Criminal lawyer, someone that he has consulted. Wong Sun
walked in there by himself, and gave an inculpatory statement.
The Supreme Court said it was wrong, the seizure of the
evidence was bad.
But we have an attenuation of the taint over four
days. This man has had a chance to think about it. He's been
in the community. He's not been locked up in jail. The same
thing with Mr. Nader. He's an intelligent individual, who's
confronted with a volatile situation, because he's trying to
save his image, as a person who deals with the Middle East
exclusively.
He went to an attorney, he talked to her, and then
they made a decision to talk to the postal inspectors. They
didn't make a decision to contact the United States attorney
involved. They didn't want to get to that level. They made
it informal themselves. They have created it, if you will,
Your Honor. If they wanted to speak to an assistant United
States attorney, that was available to them. They could have
gone in and spoken to Mr. Behr or anyone who's responsible for
the case.
Assuming a lot about Ms. Moolenaar, we can assume she
knew that. She could have walked into the office, and thePage 71
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negotiations could have started there, instead of trying to
come in the back door and get as much as you can -- you got to
give up a little bit, but get as much as you can -- know more
about the case than the prosecutor when the prosecutor get it.
And, Your Honor, if there was any taint, that taint
was attenuated to virtually nothing four days later when Mr.
Nader walked in with his lawyer, and you will recall that she
was asking him questions about probable cause and everything
else, but she conveniently forgot to ask for a copy of the
affidavit. Your Honor, that stretches credulity.
Your Honor, we would submit, again, and in final,
that the Court has ruled on certain documents that were taken
out of Mr. Nader's room. We're not quarreling with that right
now. Bound by that, Your Honor, anything that flows
therefrom, statements -- he could have said he participated in
the Kennedy assassination; anything that flowed therefrom is
bad. If it happened immediately -- if he was confronted with
it immediately after the bad search. But that didn't happen,
and he had the buffer of an attorney.
And, Your Honor, as much as they try, they're trying
to get the Court away from the fact. They're saying Ms.
Moolenaar's presence was de minimis. Why was she there? The
same question was put to her: "Why did you go? You didn't
need to go there. Why did you go? If they just wanted to get
some background, why did you go down there?"Page 72
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The reason she went down there is to try to derail
this prosecution and try to get control of the situation and
try to negotiate from that point, negotiate from a point of
strength, because knowledge is strength.
And I would take exception to Mr. Hoffman's remarks
about just having an inventory was enough. Ms. Moolenaar knew
more than just getting an inventory. She knew that she would
have to interview those officers, she would have to talk to
them, she would possibly try to get them to make admissions,
find out what they had, see what it looked like, see what the
value of it would have been in front of a jury possibly, see
if they found anything else they didn't mention, see exactly
what they had to convict her client.
That's what she did. Your Honor, we would submit to
the Court again, instead -- that the statements should not be
suppressed, because as far as the Fourth Amendment -- I
thought they were going to come in another direction, but
they're sticking with this Fourth Amendment argument, and we
submit that died, that died on April 16th, four days after the
search. That died on April 16th, when Mr. Nader came in with
his lawyer.
Taint was attenuated, it was gone, and Mr. Nader
wasn't there because of the bad search. Mr. Nader was there
to try to get around what the postal inspectors had found,
and, Your Honor, we would ask the Court not to go off in thePage 73
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direction with the defense on this Fourth Amendment taint
argument, because it is dead. It died on April 16th.
Now, if this had happened on April 12th or April
13th, we would submit there would probably be a problem, even
though Mr. Nader came down with his attorney, because it's
just too close in time; there wasn't a cooling off period.
And he had that.
Your Honor, we think that the fair disposition at
this point of this case, at this pretrial level, is for the
Court to deny the motion to suppress, and we would ask the
Court to so act.
MR. HOFFMAN: Your Honor, may I just address -- just
the proximity question. That's a new one. That's the only
thing I'm going to address.
THE COURT: All right.
MR, HOFFMAN: It seems to me we may have some -- I
don't think we have a confusion on the facts, but I heard
something that I was surprised that I heard. Mr. Dixon seems
to concede, if there was a close proximity in time between the
illegality and the statements, that under Wong Sun and its
progeny, there has to be suppression. He not seems to
concede, he does concede it.
His argument would be valid if the defendant was at
his house when they did this illegal seizure; they said we
want to talk to you about this stuff, and four days later hePage 74
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comes down to talk about it.
The defendant wasn't there. The first time he was
confronted with this illegally seized evidence is at this
meeting. There is no attenuation. He hasn't seen any of this
stuff. He's not around, he's out of town. He comes back in
town, there's been a search of his house. He's never talked
to anybody about it. He doesn't know what was taken, and the
first time he comes in, and they show him, "This is what we
got on you, fellow," that's when these statements are made.
There's no attenuation here, These statements are
the product -- immediately on being confronted for the first
time with this illegally seized evidence, they got these
statements. Your Honor, I concede Mr. Dixon has conceded the
case. This is an immediate statement based upon the
confrontation with the illegally seized evidence that the
defendant was subjected to. Thank you, Your Honor.
THE COURT: All right. Thank you, counsel.
Before I excuse counsel, and I will consider the
cases you've cited, are there any other cases you wish to
cite, Mr. Dixon?
MR. DIXON: No, sir, Your Honor.
MR. HOFFMAN: No, sir, Your Honor.
THE COURT: Before I excuse counsel, I don't believe
we've set a trial date in this case, have we?
MR. DIXON: No, sir.Page 75
THE COURT: Because I assume that the Government
intends to go forward, no matter how the Court rules on the
statements, or is that correct?
MR. DIXON: Your Honor, in the, I'd like to say,
unlikely event that the Court suppresses the statements, I
would have to ask the Court for some time to discuss with my
supervisors whether or not we want to take an interlocutory
appeal, because, admittedly, in candor, the case -- we think
we can make a case without the statements, but the statements
provide a clear nexus between Mr. Nader and the package.
THE COURT: All right. Suppose the Court does not
suppress the statements, does the Government intend to take
its appeal at that point in any event?
MR. DIXON: If the Court does not suppress the
statements?
THE COURT: Yes, I'm just trying to get a feeling for
scheduling.
MR. DIXON: Your Honor, if the Court does not
suppress the statements --
THE COURT: Of course, that leaves you with most of
the evidence suppressed.
MR. DIXON: Yes, sir. We would -- and I can say, I
think, without being overruled, we would go forward on the
controlled delivery, and not attempt to -- and I don't think
our office would attempt to appeal this Court's ruling on thePage 76
suppression of the items that were taken out of the room.
THE COURT: All right. How long do you think the
trial of this case will take, Mr. Dixon, if the case goes to
trial?
MR. DIXON: Your Honor, I think the Court has
probably heard our case in the motion. I would say about a
day, if that; a day, maybe a day and a half, and that would be
it, just the controlled delivery.
MR. POVICH: About the same.
THE COURT: About two to three days; is that what
you're saying?
MR. POVICH: Yes, sir, I would think three days at
the most.
MR. DIXON: With the understanding, Your Honor, we
would have to get the customs agent who initially intercepted
the mail and get him or her here, but I don't think that would
present a significant problem if we get to a trial posture.
And, Your Honor, let me just say this, and this would
have to remain oblique. If in the event that the Court
decides not to suppress the statement, and we're actually
going to trial, I have given this case a fresh look, and I
would have to do some very serious talking to people in our
office, and I hope the Court can appreciate my comments, and
I'll have to leave it at that.
THE COURT: But you said if the Court does notPage 77
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suppress the statements?
MR. DIXON: If the court does not suppress the
statement.
THE COURT: Well, I think we should set at least or
get a feeling for a trial date, at least a tentative trial
date, while I have you all here.
MR. DIXON: Very well.
MR. DIXON: Your Honor, my speedy trial clock has
exploded on this case -- I don't know where we are -- and I
would have to rely on the Court's clerk to tell us exactly
where we stand.
MR. HOFFMAN: I think I can give the Court some help
on that. If the Court doesn't already know, we have no speedy
trial pressure, because the motion was filed in a time period
that was excludable.
THE COURT: The motions have either been pending --
MR. HOFFMAN: Right.
MR. DIXON: I'm just talking about the time that
elapsed up to the filing of the motion. We have to count from
that time. Whatever time expired, I think we have to start
counting. If eight days expired, as the Court will recall, up
to the time of filing the motions, we have eight days in
already, and I just didn't recall when we started, because Mr.
Behr had the case before I.
MR. POVICH: There's not -- Your Honor, I canPage 78
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interject with Mr. Nader here, that the Speedy Trial Act is
not a right at this moment we wish to invoke, and I believe we
have already waived it because of the extensive nature of the
motions and the pendency of the motions, and we would continue
to do so to allow -- obviously, the Court needs time to rule
on the motions, but also with respect to the actual trial of
this case, that is not a factor. The defendant has been on
bond, and that is not a factor that we wish to raise at any
time in this case, based not only on what I'm telling you now,
but my earlier conversations with Mr. Behr when he was in the
case, and the recommendations which I made to him at that
time.
THE COURT: Well, counsel, going back then to a trial
date, one of the problems that we've had, I have, counsel, to
be quite candid, is that some cases that have already been set
by me, that appear on my calendar, which, of course, is all in
code down there, either are no longer my cases or will be
transferred to a new judge who is taking the bench in the next
two or three weeks.
MR. DIXON: Will this Court keep this case?
THE COURT: Oh, yes. There's no question that we
have this case. Criminal cases are not being transferred.
Well, let me ask you all first, when is -- what is
the first available date that you have on your calendars? I
can tell you that, as far as February is concerned, I'm notPage 79
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available, because I start a trial tomorrow which, absent some
Miracle, will go to trial, I'm sure. So I think we're at
least into March.
MR. DIXON: Your Honor, I would suggest a day during
the week of March 10 or March 17.
MR. POVICH: My time is better beginning of April.
THE COURT: What's that?
MR. POVICH: My time, Your Honor, is much better in
the beginning of April. My recollection is that I really have
a hard time picking right now in March, but I think I'm fairly
clear in April.
MR. DIXON: Could I suggest the week of April 14,
Your Honor? The first week and the second week in April are
bad for me, and if the Court and the defense are considering
the week of April 14, I would ask that we consider the 16th,
the 17th or the 18th.
MR. POVICH: Your Honor, I'm -- this always happens
to me. There's a bar convention that I'd like to attend that
would start right after that, and I've done this before, and
ended up sending my wife down alone, and if we could avoid the
middle of April. First part of April is good for me. Maybe |
the end of March is preferable.
THE COURT: Let me give you some dates.
MR. POVICH: Yes, sir.
THE COURT: And then if for some reason you cannot --Page 80
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if you're not available for those dates, why you can tell me.
The first date that I would have that appears to be available
is March 18.
MR. DIXON: That's agreeable, Your Honor.
THE COURT: Then March 25, I have a jury trial,
Criminal case, so that cannot be changed, unless there's a
disposition in that case.
THE COURT: April lst --
MR. POVICH: That's good for me.
MR. DIXON: Your Honor, I have a trial set on April
lst in front of Judge Pratt, but it's a case that I hope to
remove from his calendar and mine, but I would prefer, knowing
the conflict exists now -- nothing is absolute, except the
case has been set -- I'd prefer not to set another case on
that day, because of the obvious conflict.
THE COURT: Gentlemen, there's a possibility of April
8. I do have a matter set, but it's a civil matter, and I
know they've been having some discovery problems.
MR. POVICH: That's agreeable, Your Honor.
MR. DIXON: That's bad for the Government, Your
Honor.
THE COURT: That's bad for you?
MR. DIXON: Yes, sir, as well as the 10th.
MR. DIXON: What about the last week in April, Your
Honor? If the Court please and Mr. Povich, how's that?Page 81
THE COURT: We discussed the 14th. That's a bad day
for counsel for the defendant.
MR. DIXON: No, the 28th, Your Honor; 28th, the 29th
or the 30th.
MR. POVICH: I don't want to be away for a week and
come back and start a trial. I don't think that's fair to the
client, Your Honor.
MR. DIXON: Your Honor, why don't we do this. Let's
set the lst down for the Nader case, and I will -- I don't
think that case will be on Judge Pratt's calendar as of April
Ist.
THE COURT: The lst?
MR. DIXON: Yes, sir. And I'll --
MR. POVICH: That's agreeable, Your Honor.
THE COURT: That's agreeable?
MR. POVICH: Yes, sir.
THE COURT: All right. Then we'll set it down for
the lst, but Mr. Dixon, please keep us advised.
MR. DIXON: Yes, sir.
THE COURT: Because Judge Pratt's case will have
priority, if it goes.
THE COURT: All right.
Then, Mr. Nader, I will continue you on the same
bond, with the same conditions. I'm setting your trial now
for April 1, but I do ask that, pursuant to the conditions ofPage 82
your release, you maintain contact with your counsel, in the
event it is necessary to change that date. The date could be
an earlier date possibly, depending upon your counsel's
calendar and the Court's calendar, or it can be a later date,
but at this point, we'll set it for April l.
But you are responsible to keep in touch with your
counsel, and if for any reason you cannot reach your counsel
on the basis of at least once a week to check these dates,
then you should call the Court to determine if there's been
any change in that date, because if you fail to appear on the
date set, of course I will issue a bench warrant for your
arrest, and additional charges can be preferred against you.
Do you understand that?
THE DEFENDANT: Yes.
(At 3:37 p.m., the hearing in the matter was
concluded. )
-o00-
CERTIFICATE OF REPORTER
I hereby certify that the foregoing is the official
transcript of proceedings in the hereinbefore-captioned
matter, and that it is complete and accurate to the best of my
knowledge and ability.
KI OING Doubhe K
HARRY DEO ESCH
Official Court Reporter
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PlainSite Cover Page
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&
Co 4-OKR DADA22—10--D. PP, +A CiandAkrs/ta/2R. D. 4
Case L.00-Cl-YUUSS-JSGF VOCUITIENU 4 FHeag VO/LIT0O0 Fage 10
UNITED STATES DISTRICT COURT 208
FOR THE DISTRICT OF COLUMBIA
= eee :
UNITED STATES OF AMERICA 3
Vs. : Criminal Action No. 85-33
GEORGE A. NADER, : FILED
Defendant. : JUN 19 1986
meme me ee x CLERK, U.S. DISTRICT COURT
DISTRICT, OF COLUMBIA
Courtroom No. 17
Washington, D.C.
Monday, February 10, 1986
The hearing on Motions in the above-entitled matter
resumed in open court before The Honorable JOHN GARRETT PENN,
United States District Judge, commencing at 1:45 o'clock a.m.
APPEARANCES :
For the Plaintiff:
RONALD DIXON, ESQUIRE
For the Defendant:
DAVID POVICH, ESQUIRE
RICHARD S. HOFFMAN, ESQUIRE
Official Court Reporter .
4800-G, U.S. COURTHOUSE yk
Washington, D.C. 20001 2
(202) 898-0780
HARRY DEUTSCH ab 16
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Government's Exhibits: in evidence
1 212
2 214
3 we
Defendant's Exhibits: in evidence
1 215
2 215
3 --
4 223
5 229
6 =
7 229
Closing Argument by Mr, Dixon Page 241
Closing Argument by Mr. Hoffman Page 251
Rebuttal Argument by Mr. Dixon Page 275
Rebuttal Argument by Mr. Hoffman Page 280
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PROCEEDINGS
THE COURT: Good afternoon counsel.
MR. DIXON: Good afternoon, Your Honor.
THE COURT: Mr. Dixon.
MR. DIXON: Your Honor, after speaking with the
witnesses, one witness that I have presented, and reviewing
the case a little further, I'm not going to call any other
witnesses, and we would rest with the testimony of Mr.
Northrop and Ms. Moolenaar, and at this time, we would ask the
Court to accept into evidence our two exhibits -- I believe
it's Government's 1 and 2 -- and we would defer to the Court
and to Mr. Povich for any evidence that they may want to
submit at this time.
THE COURT: All right. With respect to Government's
Exhibits 1 and 2, any objection?
MR. POVICH: Your Honor, can I make sure I know which
ones they are? 1 is the warning and waiver of rights?
MR. DIXON: Yes.
And 2, Your Honor, is the affidavit, search warrant,
and the inventory, and a diagram of the premises that were
searched.
The Court will recall that that came in or that was
used by the United States in an attempt to impeach Ms.
Moolenaar. The Court will recall that Ms. Moolenaar indicated
during direct examination in response to a question from Mr.
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Povich that she was shown several magazines. She had viewed
nothing from the controlled delivery, but she was shown
several magazines, and she was asked to enumerate by name if
she recalled.
She indicated Hound Dog and Piccadillo, and the
Government seized upon that opportunity, after hearing that,
to impeach Ms. Moolenaar, because, as the Government recalled,
Piccadillo was only among those magazines inside of a
controlled delivery.
After a bench conference, all parties agreed that the
Magazine Piccadillo was among those items that were taken from
the apartment. However, to test this witness's credibility
and to test this witness's ability to recall, the Court
allowed the Government to pose a question to the witness, and
the witness's answer initially was that she had seen
Piccadillo in the controlled delivery, which was, of course,
in direct contrast to her earlier testimony, but I think an
attempt at rehabilitation was made, and she sort of, in the
Government's view, meandered around here and there, and I
don't -- her other testimony dealing with that issue is very
fuzzy, and that's how it came out, but that is the genesis of
Government's No. 2.
THE COURT: All right.
MR. POVICH: In the event this case at some point in
time goes to the Court of Appeals, and they're looking for
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Piccadillo, I think the name of the magazine is Piccolo.
MR. DIXON: Piccolo, I'm sorry; not Piccadillo,
Piccolo. I'm not well versed, Your Honor.
MR. POVICH: Or Piccolo, as we called it up to this.
THE COURT: Whatever.
MR. POVICH: Your Honor, I have no objection to
Exhibit No. 1, which is the waiver. I think it was discussed
at length, and I think the Court should have the benefit of
precisely the form, and the indication that it was executed,
and that it was done, and particularly the time which appears
on it.
(Government's Exhibit No. 1
was received in evidence.)
MR. POVICH: With respect to Government's Exhibit No.
2, I would accept the Government's exhibit and not object to
it, with one exception. I do so, Your Honor, because it is
offered -- because there is a credibility contest, and I
believe there is a credibility contest between Ms. Moolenaar
and the agent, and I think that the Court, if it reaches that
point, should have the benefit of whatever documentation is
available to assess it.
But there is an attachment to Exhibit 2, Your Honor.
It is an affidavit for a search warrant, and then it goes on,
Your Honor. In addition, it has a diagram of the room, which
I don't believe was part of the affidavit for the search
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warrant, since the officers had not entered the room at that
point, and I don't think they really had it.
And the third part of it is the report on the return
of the search warrant inventory. I have no objection to that.
In addition, I think it's been identified as one of the
defendant's exhibits. The only question I have is the
inclusion of this diagram of the room and why that was part of
it. Ron, do you know?
MR. DIXON: Could I have the Court's indulgence one
moment?
MR. POVICH: The record should reflect I've never
seen the diagram before, and we appear to have had copies of
both the affidavit and of the inventory, and it has not been
up to this point a part of it, and it seems to be signed by
Agent Bloodworth, and he's not testified, so I really question
whether or not that should be included.
THE COURT: I'm not sure I recall seeing the diagram
before.
MR. POVICH: Nor do I think it's particularly
relevant, certainly not to these proceedings.
MR. DIXON: Your Honor, if the Court please, I would
have no objection to that part of Government's Exhibit No. 2
being sanitized, if you will, and --
THE COURT: The diagram?
MR. DIXON: Yes, sir.
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(Government's Exhibit No. 2, as
amended, was received in
evidence.)
MR. POVICH: Do I understand, Mr. Dixon, you're
resting now?
MR. DIXON: Yes.
MR. POVICH: May I address the Court?
THE COURT: Yes.
MR. POVICH: With respect to -- we don't wish to
introduce any further testimony, Your Honor, but we would like
to introduce our exhibits.
I will pass for a moment, Defendant's Exhibit l,
which is the request for the appearance and the subpoena for
Ms. Moolenaar to appear at this hearing today, which was
issued by the United States, and take that up at the end.
Exhibit No. 2, Your Honor, is the -- Defendant's
Exhibit 2 is a search warrant, inventory and return, report
and return. It was identified by Mr. Gauntt. If Your Honor
may recall, he said he signed it because it was -- the
Government told him to sign it, and he -- he believed they
were from the Government, so he did so. It's important, I
think, Your Honor, and I would like to introduce it as the
document shown to Mr. Gauntt, which he said he signed but did
not receive a copy of, specifically, the pink copy.
MR. DIXON: Your Honor, I don't have any problem with
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that. It's a part of the Court's record already, the Court
can take judicial notice of its own records.
THE COURT: All right, Government's Exhibits 1 and 2
are received. I'm sorry, Defense Exhibits.
(Defendant's Exhibits Nos. 1 and 2
were received in evidence.)
MR. POVICH: Your Honor, the next number is
Defendant's Exhibit 3, and this, Your Honor, is Ms.
Moolenaar's ~- are Ms. Moolenaar's notes. It is a one-page
exhibit of the telephone conversation.
Now, as Mr. Dixon says, her credibility has been
attacked. These are contemporaneous notes of what she said
transpired. She was questioned closely, I think, by both
parties and the Court on those conversations, and I would urge
that it's admissible, and that the Court should have the
benefit of her contemporaneous notes.
THE COURT: Mr. Dixon.
MR. DIXON: Your Honor, in general, Ms. Moolenaar, as
all witnesses who take the witness stand, her credibility was
attacked by the United States as well as Agent Northrop. fThe
notes that are comprised in Defense No. 3 were not used
specifically, either to impeach or to rehabilitate Ms.
Moolenaar. They are just general notes about the
conversation.
We would submit that all they would do is serve to
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bolster her testimony. They really don't tell the Court any
more than it already knows about Ms. Moolenaar's testimony,
and there was no attempt by the Government, nor by the
defense, to rehabilitate her.
The Court recalled that the notes were referred to
and identified by Ms. Moolenaar, but the defense, after an
objection, abandoned whatever tactic they were using to try
to -- whatever purpose they were going to put the notes to.
There was no direct impeachment by the Government or
rehabilitation by the defense that would serve to bring these
notes into evidence at this point, and they would merely be
coming in as a prior consistent or inconsistent statement,
whichever part of the notes you wanted to seize upon that may
have been used but weren't used, and we would object on those
grounds, Your Honor.
THE COURT: Mr. Povich.
MR. POVICH: Your Honor, these notes were first
identified on my cross-examination or my examination of Ms.
Moolenaar. She really at the conclusion of that testimony had
been attacked quite forcefully as to her credibility insofar
as what transpired in that first telephone conversation -- for
instance, what was said -- and the subsequent witness, more
importantly, Mr. Northrop, testified, essentially, that what
Ms. Moolenaar had said when I examined did not take place, and
he said his interest was, for instance, in such matters as
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sexual conduct with young boys, and that that was specifically
discussed.
These notes, which she identified on the stand as
being her notes, are totally absent -- do not contain one
reference at all to that type of a conversation in their
telephone conversation -- not one -- and they are introduced,
Your Honor -- when I examined her and had her identify this, I
sought to introduce this at that point in her testimony.
It was objected to, and I waited, and the Court did
not rule on it, because it was just passed, and I did not
because I expected that, after Mr. Northrop testified and the
contents of that conversation really became clearly at issue,
that at that point it would be clearly admissible, and that's
why we waited till this point, at the conclusion of this
hearing, where the contents of that conversation are clearly
relevant, to introduce it to rehabilitate now, as a statement
of -- a contemporaneous note of Ms. Moolenaar as to what had
transpired.
It is no different, Your Honor, than what we have in
every situation where a police officer takes the stand,
testifies what's happened. On cross-examination, he is
challenged, and his contemporaneous notes are introduced or
allowed to be introduced, in order to show that what he said
happened was supported by contemporaneous writing.
I think Ms. Moolenaar is entitled to the same
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consideration, and indeed, these notes not only corroborate
what she said, but I think would assist the Court ina
difficult matter of credibility.
THE COURT: All right.
MR. DIXON: I have nothing further, Your Honor, on
that issue.
THE COURT: What's that?
MR. DIXON: I have nothing further on the notes.
I'll stand on the argument I made earlier.
THE COURT: Well, what is the rule that you would
bring it under, Mr. Povich?
MR. POVICH: If Your Honor will indulge me for a
moment.
THE COURT: Sure.
MR. POVICH: Give me a moment, Your Honor. I'm
sorry, I should have...
Mr. Hoffman is looking up the specific rule, Your
Honor. It would be the rule which relates to the exception to
the hearsay rule, which allows a witness who has made a prior
consistent statement to have that statement introduced, and I
will get it for you in a moment.
MR. POVICH: It's interesting, Your Honor. There are
two bases in rule 803. This is what I'm going to check.
THE COURT: 803?
MR. POVICH: Yes, sir.
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MR. POVICH: I'd like to start out, first, by saying
I don't know whether Ms. Moolenaar is adverse, who she's the
adverse party to, but anyway, Your Honor, 803, paragraph l, a
statement describing or explaining an event or condition made
while the declarant was perceiving the events or conditions or
immediately thereafter, and therefore, it is an exception to
the hearsay rule, Your Honor. This statement, I believe, is
clearly not excluded.
And, also, the general provisions under 24, Your
Honor, with the other exception, as a statement not
specifically covered by any of the foregoing exceptions but
having equivalent circumstantial guarantees of
trustworthiness, if the Court determines that, a, the
statement is offered as evidence of a material fact, the
statement is more probative on the point for which - is
offered than any other evidence which the proponent can
procure through reasonable efforts, and the general purpose of
these rules, that the interests of justice will best be served
by the admission of the statement into evidence. Most
principally that one, Your Honor.
I think Your Honor has to sit back and ascertain --
we have two people trying to describe what happened in a
telephone conversation. One of the individuals, an attorney,
has made contemporaneous notes of what was said, and I think
in the interests of justice, those notes, especially if her
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credibility has been attacked, should be admitted in the
interests of justice.
THE COURT: Anything else, Mr. Dixon?
MR. DIXON: No, Your Honor. I'd stand on the
arguments I made earlier. We think that the only way that
these statements -- well, it’s not -- first of all, we don't
think it's a statement.
The only way that Ms. Moolenaar's notes can come in
is if Ms. Moolenaar was specifically impeached by the
Government. The Court allowed the United States to
cross-examine Ms. Moolenaar, because ~-- well, before the Court
even got to that ruling, the defense conceded, so the Court
didn't have to make that ruling. The defense conceded that
the Government should be allowed to cross-examine Ms.
Moolenaar, and we did.
After we cross-examined Ms. Moolenaar, Mr. Povich, as
I recall, attempted to use -- identified Ms. Moolenaar's
notes, had her identify them, and had her talk about what she
wrote down. I objected to her reciting anything on the notes,
all right? So there was no attempt to rehabilitate at that
point.
Then we get to Mr. Northrop testifying, and now the
defense is reaching way back, trying to use Ms. Moolenaar's
notes to impeach Mr. Northrop. But we don't know, we don't
know what Ms. Moolenaar wrote, and what she left out. These
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are very cryptic notes. They can't -- they don't rise to the
dignity of a statement, because everything is not there.
There are things that aren't there, and that means that these
notes are incomplete.
We don't know how they can try to use Ms. Moolenaar's
notes to impeach Mr. Northrop, because he didn't write them.
She wrote them.
They didn't ask her any questions about what she had
on her notes, because there was no grounds to. The things I
asked her did not fall within the four corners of that
document, or they would have tried to rehabilitate her, but
they didn't, and now they're trying to get to the Court's
attention her notes to bolster her testimony, on the general
theory that her credibility is in issue.
Of course her credibility is in issue. So is
Inspector Northrop's. But I daresay I don't think the defense
will argue that his notes should be submitted to the Court in
toto, and, Your Honor, we think there's just no grounds for
them to try to get the notes in. Had they specifically come
back and tried to rehabilitate Ms. Moolenaar on a specific
point, then we would say, arguably, that the notes could come
in, but that didn't happen, so our position has not been
changed, and we would ask the Court to exclude then.
THE COURT: May I see the notes before I hear further
argument?
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MR. POVICH: Yes, sir.
THE COURT: All right, last word, Mr. Povich.
MR. POVICH: Yes, sir. I spent some time, I
believe -- using the Government's argument, I spent some time
trying to "rehabilitate," if that is the correct word,
statements which Ms. Moolenaar or points which Mr. Dixon tried
to obtain from Ms. Moolenaar, particularly -- a perfect
example is the Piccolo or Piccolo situation, in which I
examined her at some length to try to have some understanding
of the circumstances under which she received information
concerning that, and that will be apparent -- that's not
apparent from that one, Your Honor; that was my reexamination
of her with respect to the telephone conversation of the day
of the meeting -- but the telephone conversation prior to the
meeting, and it was very important as to what was said as to
why it was going down, at whose request she was coming down,
and I went back over that at some length with her, and she
testified to those matters consistent with her notes, and I
would think, Your Honor, if rehabilitation is the key, and I
don't think it is, that that's what happened, and that they're
admissible.
THE COURT: Defendant Exhibit No. 3 will not be
received.
MR. POVICH: Your Honor, Exhibit 4 is a defendant's
exhibit, which is the search warrant and report inventory,
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which Ms. Moolenaar said she obtained from the Magistrate's
office.
THE COURT: Any objection?
MR. DIXON: No, sir, Your Honor. That's a part of
the Court's record.
THE COURT: Received.
(Defendant's Exhibit No. 4
was received in evidence.)
MR. POVICH: Your Honor, Exhibit No. 5 is defendant
Moolenaar's notes as to the -- which were written during the
course of the meeting that she had with Agent Northrop and
Bloodworth. It sets forth in some detail the sequence of
events.
It corroborates what she testified to both on my
examination of her after she was cross-examined as an adverse
witness, and it addresses such important matters as which
boxes were opened and which ones were not, because it
indicates the contents -- references those that were opened
and looked at, and those that were not, and, Your Honor, it is
sequential, so that it shows that matters were taken not
numerically in order, as Mr. Northrop said, but only after
they had gone into other matters first and then started going
numerically in order.
It generally corroborates the material, Your Honor,
which she was viciously attacked on in some instances by the
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United States attorney, and it indicates that her testimony
with respect to the matters covered here was truthful,
particularly, Your Honor, the absence of any note whatsoever
about the contents of the controlled delivery package. Not
one word about that in these notes.
We think it is important for her credibility, since
the Government went to some lengths to show that Agent
Northrop was testifying correctly when he said it was opened,
and that she was not being truthful when she said that it was
not. I would offer her contemporaneous notes, Exhibit 5.
MR. DIXON: Your Honor, our problem with Defendant's
No. 5 is even more basic than with Defendant's 3. It's our
recollection that ~- and again, the Court's recollection
controls -- is that Ms. Moolenaar -- we don't even recall her
identifying Defendant's No. 5 as notes that she took at the
time when she was being interviewed.
Moving aside from that, even if they did, even if
they did have her identify Defendant's No. 5, again, we would
ask the Court, if the Court is going to allow this, allow
specifically not the whole notes -- well, I'1l withdraw that.
If the Court is going to allow one page, the doctrine of
completeness would apply that the page before and the page
after and whatever is relevant to explain that particular
entry.
But, again, our position, going beyond whether or not
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it was properly identified, is that let's stick with straight
impeachment. You just can't -- we don't think you can just
give us a self-serving statement or some document to bolster a
witness's testimony, and that's basically what we have.
Corroboration is one thing, but again, that's
independent corroboration. Here we have something that a
witness wrote down. She may have included, she may have
excluded things for any one of a number of reasons. She may
have forgotten, and to this day does not recall that she
looked at the controlled delivery.
THE COURT: I would just note for the record that Ms.
Moolenaar did identify, according to my notes, Defendant
Exhibit No. 5 as her original notes taken at the time of the
meeting with the agent.
MR. DIXON: Very well, Your Honor.
But, Your Honor, moving away from that, the same
objections that we had to the earlier notes would apply to
this. If there's some specific passage that rehabilitates Ms.
Moolenaar on a particular point that she was impeached on, we
would have no problem with that, because that's fair, that
should come in, that's a prior consistent statement after she
was impeached on cross-examination, but we don't think that's
the case here, and what is happening is the Court is going to
get carte blanche one -- and I'm reluctant to say party -- one
witness's version of what happened, and it's memorialized by
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being in writing, and so far all the Court has is the
testimony that it has to make some judgment calls on, but we
think -- and we'll save this for argument at the appropriate
time -- there's more to it than that.
But our objections to Defendant's No. 5 would remain
the same as they would to Defendant's 3, Your Honor, unless
there's some specific passage or some specific phrase in the
notes that serves to rehabilitate Ms. Moolenaar on a point
that she was cross-examined on by the United States.
MR. HOFFMAN: Your Honor, may I?
THE COURT: Yes.
MR. HOFFMAN: Two points. One, there is, given that
concession, there are several points on which she was very
vehemently cross-examined, which those notes specifically
corroborate. One is what was reviewed at the meeting, and
most importantly, as will become clear when we argue the case,
the sequence of review of the material at the meeting, in
which she was impeached, and her testimony is in conflict with
that of Agent Northrop, who testified that the controlled
delivery was the first thing examined at the meeting. She was
impeached when she testified it was the last thing discussed
at the meeting, and then not examined at all.
I've rarely heard someone be impeached so severely.
Mr. Dixon suggested to her in questions and at the bench that
she was, for want of a better phrase, lying, because she had
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an interest in this case, and he questioned her professional
conduct.
It is, I think, a very well known and standard rule
that where there exists a contemporaneous utterance when
someone is accused of a recent fabrication, that
contemporaneous utterance is admissible. This is a
contemporaneous note of that very meeting in which she has
been accused of a recent fabrication in her testimony, and as
such those notes in whole are admissible.
MR. POVICH: I think that would apply -- Your Honor,
that was my point with respect to No. 3 as well.
THE COURT: Well, I have a feeling that there's a
difference between No. 3 and No. 5, for the reason that it's
my recollection that both Ms. Moolenaar and Agent -- not
Bloodworth but --
MR. POVICH: Northrop.
MR. DIXON: Northrop.
THE COURT: -- Northrop made notes, I believe,
concerning the order in which they looked at the exhibits in
question, and I think that order is significant for both of
them, because they were both questioned about the order that
they looked at the exhibits.
Now, of course, the agent's notes have not been
offered --
MR. POVICH: They will be, Your Honor, the raw notes,
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THE COURT: -- but they testified, as I recall, that
they did make notes as to the order in which they were offered
and reviewed, and having that in mind, and since that is a
matter the Court wishes to consider, and the fact that there
was testimony, as I recall, that these notes were made at or
about the time of this meeting, it seems to me that it is
significant and relevant, but, further, it is admissible.
Now, I find myself, looking at rule 803, trying to
find which pigeonhole it goes in, and I'm afraid I must advise
you that I'm reminded of a case I tried in the United States
District Court in Ohio once, where the judge ruled against me,
and I tried to get him to advise me of the basis of his
ruling, and finally, he said, "Well, all I can tell you, Mr.
Penn, is, I only have an old lawyer's hunch that I'm right."
MR. DIXON: The plenary power of the Court, Your
Honor (Laughter).
MR. POVICH: I could only suggest, Your Honor, it's
either subsection 1 or 24.
THE COURT: I will not admit to being an old lawyer,
but I think it is admissible, at least under 803-24, perhaps
under 803-1, and I'd have to look at it further; and I think
because, and the only reason is because, that note and the
other note as well set out the order in which they actually
looked at the diagram or the evidence.
MR. POVICH: Yes, sir.
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THE COURT: Now, it can be argued, of course, that
they had an opportunity to refresh their recollection as to
that order by looking at their notes, and I think they
testified after looking at their notes concerning the order as
well, but I'm going to hold that Defendant Exhibit 5 is
admissible, and I'll receive it.
(Defendant's Exhibit No. 5
was received in evidence.)
MR. POVICH: I would offer Defendant's Exhibit 7,
then, Your Honor, which is Agent Northrop's handwritten notes.
MR. DIXON: No objection, Your Honor.
THE COURT: I'll receive 7.
(Defendant's Exhibit No. 7
was received in evidence.)
MR. POVICH: My last comment, Your Honor -- it's only
a comment. It's perhaps not necessary to the proceedings.
It's in evidence. It's perhaps not necessary to the
proceedings, but the United States attorney's office, there is
a practice which has grown up in the United States attorney's
office, and I can't put my finger on it, but I think it has
been condemned, of sending out what appears to be a subpoena
for a hearing which, in fact, is nothing more than a subpoena
to appear in my office so that I can question you about it.
I ask that Exhibit 1 be introduced, because that's
what this subpoena represents. It says that they are to
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report to room so and so and such and such of the United
States attorney's office, and it has all the indicia -- in
fact, it's been typed on top of a subpoena of this Court, and
I -- every time I see this, I want to object to it, because I
think it's improper. A person can be subpoenaed to come to
court and asked if they would come to the person's office, but
they can't be subpoenaed to what appears to be coming to
someone's office first, and I just want to make that comment.
THE COURT: That's Defendant Exhibit 1; is that
right?
MR. POVICH: Yes.
THE COURT: That's already in evidence.
MR. POVICH: Yes.
THE COURT; All right, defendant have anything else?
MR. POVICH: No, sir.
THE COURT: All right, argument.
MR. DIXON: Your Honor, before we get to argument, it
appears that there's one other exhibit that should come in,
and I think the defense was about to proffer it, but they did
not, and that's, I think, Defendant's -- the Court will --
MR. POVICH: Six?
MR. DIXON: Defendant 6, and Your Honor, that is an
exhibit that the Court should have. We have already rested
our case.
THE COURT: Which one is that?
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MR. DIXON: That's the memorandum of Postal Inspector
Northrop, laying out what happened at the April 16th, 1984
hearing, a memorandum that was used to, indeed, impeach Agent
Northrop. On page, I believe it was, 4, Agent Northrop made a
statement on the witness stand, and he was impeached with
something that he said in the written memorandum, that he
identified and agreed was accurate, and the Court may recall
that I stood and asked under the doctrine of completeness that
the entire sentence be read, so that the matter would be
clear.
Your Honor, procedurally, I have rested. I would ask
the Court to allow the Government to reopen just for purposes
of admitting that particular exhibit. It has been identified.
In fact, it was used by the defense, and if we need to put a
Government sticker on it, I would ask the Court to allow the
Government -- first of all, I would ask the Court to allow the
Government to reopen to consider that.
THE COURT: First, what is Defense Exhibit 7?
MR. DIXON: That is -- 7 are the notes taken by
Northrop, and -- handwritten notes: and 6 is the memorandum
that he wrote as a result of consulting those notes, and I
think the Government would be out of the water if Defendant's
No. 6 had not been used, but it was used to impeach Inspector
Northrop.
THE COURT: But 7 are his original notes?
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MR. DIXON: Yes, sir.
THE COURT: And 6 is a memorandum he prepared based
on those notes?
MR. DIXON: Yes, sir, that is more expansive than 7.
THE COURT: All right. Any objection?
MR. POVICH: Yes.
THE COURT: Well, first, for the record, I will allow
the Government to reopen its case for the purpose of -- well,
I don't know whether you wish to argue that point or not, Mr.
Povich.
MR. POVICH: No.
THE COURT: I will allow the Government to reopen its
case for the purpose of marking the exhibit in question as a
Government exhibit and offering it, and assuming that that's
been done, I'll hear your argument, Mr. Povich.
MR. POVICH: Yes, sir. This is a typewritten
memorandum, Your Honor, of the interview conducted by Agent
Northrop and Agent Bloodworth. It appears to be written by
Agent Northrop, and that's why I questioned him about it. It
doesn't indicate when it was written, the date, the time, at
what point it was written. Sometime subsequently to the
hearing. There is no date on it.
I questioned him about it principally because of the
absence of anything in the memorandum which he wrote as to
opening of the package, if you'll recall, was the principal
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issue, and nowhere in this memorandum did he say -- was there
any reference to the fact that the package was opened at all.
I don't know with whom -- there was no testimony as
to the source of this information, whether he consulted with
Agent Bloodworth, whether he consulted with other agents. It
was simply an interview -- it was simply a memorandum written
by him, and I examined on it.
Now, as the Court knows, not every document used to
cross-examine a witness makes it admissible, and I don't think
that they're entitled to have an entire memorandum -- it's
called an investigative memorandum, memorandum of interview,
undated. Sources are not indicated. I don't think that that
entire memorandum or any portion of it is admissible.
I think, for the Court's purposes, the Court has
identified the issue with respect to contemporaneous notes of
what transpired at that hearing and not an investigative
memorandum of the interview written at some other point in
time that could draw upon other information and is not
necessarily limited to Agent Bloodworth's data -- I'm sorry,
Agent Northrop's data -- which is what Agent Northrop's
handwritten memorandum would have been, and under those
circumstances, Your Honor, I think it's -- I would object
strongly to it being introduced.
THE COURT: Mr. Dixon, are you offering the entire
document?
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MR. DIXON: Yes, sir, I am, Your Honor.
THE COURT: May I see the document?
(Handed to the Court.)
MR. POVICH: I'm sorry, Your Honor, I may have
underlined something. Is that my copy or is it a clean copy?
THE COURT: I'm not sure whose copy it is.
MR. POVICH: If it's not marked -- good.
THE COURT: I don't see anything on it. Do you want
to take it?
MR. POVICH: That's fine. My marks are readily
apparent. Thank you.
THE COURT: Yes, Mr. Dixon?
MR. DIXON: Your Honor, with reference to -- I would
use the arguments made so eloquently by opposing counsel.
Matters of credibility are at issue, and I think the Court
will find that there are certain matters that Ms. -- recall
certain matters that Ms. Moolenaar testified about, that Agent
Northrop testified about, that were memorialized in this
particular item. For instance, the first line on the first
page:
"The discussion began with introductions, with all
four parties present, and a brief explanation of the
purpose of our meeting. The next order of business was to
obtain some personal information from the subject, Mr.
George Nader, i.e., personal history, after which some
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background as to his line of business in connection with a
firm called International Insight and a magazine which he
publishes known as the Middle East Insight, and other
relevant materials to that company."
He then says: "It was explained to Mr. Nader by
Agent Bloodworth and myself that our discussion was to
center around the importation of child pornography in
violation of 18 U.S.C. 1462."
Ms. Moolenaar denied that on the witness stand. She
said something like that never happened. The Court will
recall that I asked her a specific question, and it came from
this memorandum.
The Court will recall that I asked Ms. Moolenaar
several other questions that came from this memorandum. Okay.
I invite the Court's attention to page 2, and the Court will
recall that my line of questioning on Ms. Moolenaar was as
follows:
"Ms. Moolenaar, is it a fact that Mr. Nader was asked
this question and he gave this response? He stated that
he jotted down the name and address of a company known as
COQ Company in Copenhagen, and kept that name and address
with him so that he may correspond with them and make
future purchases of similar material depicting young boys
in sexual activity?"
She said no, and the Court may recall that I asked
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Ms. Moolenaar a question in this fashion:
"Ms. Moolenaar, was your client asked this question,
and did he give this answer? He had stopped there in
Holland for one evening, and at the hotel he bought" --
this is on page 2, the bottom of the page -- "he had
stopped there in Holland for one evening, and at the
hotel he bought a magazine depicting young boys engaged in
sexual activity?"
Her response was "No, my client didn't say anything
like that at all."
Your Honor, we think that this memorandum -- well, we
think that it is significant by virtue of its conspicuous
absence from those that the defense wanted to move in.
We, also, Your Honor, think that it lays out in great
detail what happened, just as Ms. Moolenaar's contemporaneous
notes -- I think that's Defendant's No. --
MR. POVICH: Five, Your Honor.
MR. DIXON: -- Defendant's No. 5, and we think that
Mr. Northrop was cross-examined on the witness stand about
what happened at the meeting; he was impeached on at least one
occasion that I can recall that Mr. Povich has pointed out for
us -- that was on page -~ I'm sorry, I'm sorry. He was asked
to read through the entire memorandum, the Court will recall,
and he was asked: "Did you put anything in your memorandum at
all about showing or opening the controlled delivery?" And he
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said, "No, it's not there," and he said on the witness stand
that he showed it to her.
Your Honor, this memorandum was used ad nauseam by
the defense to impeach Mr. Northrop's credibility. There are
statements here that rehabilitate him, if you will, and there
are statements that go along the lines of what the defense was
after, and we think that the Court is entitled to it as the
finder of fact and as the concluder of law to have this
memorandum before it.
Now, the issue that Mr. Povich raised about when this
memorandum was written, we think is not a real issue, because
Agent Northrop identified it on the witness stand and said,
"Yes, I wrote it," and "Yes, that's mine." We think that
identifies it and that brings it into the ballpark. That
makes it material, that makes it relevant, and we think that
the Court should receive it to assist it in making a very
difficult decision on this case.
THE COURT: But you're asking me to -- well, if I
receive -- as I understand, you're offering this for for my
consideration of the entire document?
MR. DIXON: Yes, sir, I am, Your Honor, because the
Court cannot -- under the doctrine of completeness, if we were
to cut out -- if we were to expurgate or excise certain parts
of this document, what comes after that would not make any
sense if the Court didn't have the opportunity to read what
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came before it; in other words, directing the Court's
attention to the first page, the first -- the last sentence on
the first page, "It was explained to Mr. Nader," and so on,
would make no sense without, we submit, without the preceding
sentence and without the next sentence, because it would give
a reader a false impression that that was the first thing that
happened at the meeting, that they sat down and they said to
Mr. Nader, "Okay, Mr. Nader, according to the Government's
view, we're going to explain to you that what you did was in
violation of the law. You imported child pornography," and
that just didn't happen. There was testimony from Moolenaar
and Northrop that that was not the course, the first thing
that happened. That was not the first thing that happened.
The first thing that happened was introductions and
biographical information, and then they got into other areas.
What I'm saying is if the Court were just to take that, based
on the impeachment of Ms. Moolenaar, just take that sentence,
it would be misleading because of what is the agreed testimony
from the other witnesses. They don't agree on that particular
sentence, but they agree on what happened before that and what
led up to that, and the demarcation comes when the
Government's witness says, "Hey, I advised them that they
should have been on notice that this has the trappings of a
criminal investigation." They say no, that never happened,
and, Your Honor, that's why we would ask that the entire
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document be received by the Court.
MR. HOFFMAN: Your Honor, may I?
THE COURT: Yes.
MR. HOFFMAN: Just a couple of statements. There's a
difference between this memorandum and Defendant's Exhibit 5.
A couple that are most important is that this is nota
contemporaneous memorandum.
The doctrine that we're talking about, when someone's
recollection of an event has been impeached, and they have
been accused of misrecollecting or misstating, if there's a
contemporaneous note that's one thing. This is something done
afterwards. This is what the agent produces as perhaps a
summary of what's happened. We have his contemporaneous
notes. You've already got them. They've been admitted.
That leads to the second problem of this. This has
double hearsay all over it. This has statements -- it appears
to have statements that he talked to others at the meeting to
get these statements, probably, most particularly, Agent
Bloodworth, because there is material in this document that is
nowhere to be found in his original notes. So the likelihood
that he spoke with someone else is great and included those
statements in here, and those other statements which cannot be
identified and separated are clearly inadmissible.
The third difference is that the United States did
not use this memorandum in reexamining after cross-examination
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the agent. Defendant's Exhibit 5 was identified and used by
Mr. Povich in examining Ms. Moolenaar, because of the way she
was impeached by the United States.
After Mr. Povich finished cross-examining, and did,
in fact, use portions of this, the United States chose for
whatever reason not to use any portion of this as a method of
rehabilitation, so the fact that it conceivably could be
rehabilitation isn't really relevant, because I assume by some
choice it was determined not to use this memorandum. It was
not referred to in any way by the Government in redirect in
rehabilitation of the agent.
For all of those reasons, this exhibit is materially
different from the exhibit that Your Honor has admitted as
introduced by the defense.
I believe Mr. Povich said it the first time, but we
do not know when this exhibit was created. We don't know how
long after this meeting, especially with relation to the
motions and what has been filed in this case, that this
memorandum was dictated by the agent.
MR. POVICH: Or typed.
MR. HOFFMAN: Or, as Mr. Povich --
THE COURT: Government's Exhibit No. 3 is not
received. Counsel have anything else?
MR. DIXON: No, sir, we do not, Your Honor.
THE COURT: All right, you ready for argument?
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MR. DIXON: Yes, sir.
Your Honor, at the outset, the United States would
make the observation that this has been a most difficult case
for the Government and, most assuredly, we think that it's
been a most difficult case for the Court and the defense.
Your Honor, going right to the issue at hand, we
would submit that the statements made by Mr. Nader should not
be suppressed, the reason being, a, Mr. Nader was not in
custody at the time the statements were made; b, I think the
defense, by virtue of the Court's ruling, has to abandon its
earlier Wong Sun argument.
The Court will recall, in the defense's motion
papers, they attacked the statements as the basis of the
poisonous tree. Since the Court has ruled on evidence that
was seized, the Court has found that the evidence seized from
Mr. Nader's room should be suppressed, because of the
overbreadth of the search warrant; therefore, anything that
comes as a result of that should be suppressed as well.
Now, in dealing with the controlled delivery, the
Court has not suppressed the evidence that was seized during
the search, that being the controlled delivery.
Your Honor, that is what the -- the controlled
delivery, we submit, even knocking out the other evidence
taken from Mr. Nader's room, is what brought Mr. Nader and Ms.
Moolenaar to the office of the postal inspector.
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Now, Your Honor, we see this in a very strong clear
light. Miranda really doesn't apply, because Mr. Nader was
not under arrest, and Mr. Nader came voluntarily to, if we
will, the police station or the office of the postal
inspector, and indeed, Your Honor, Mr. Nader was in a much
better position than other defendants this Court has seen
before it in statements cases.
Your Honor, I would submit that the case law is -- it
is rare when you have a statement situation involving an
attorney who was sitting right beside her client. That is
rare.
Normally, the cases that we deal with, and the cases
that come before this Court, are cases that deal with a single
defendant confronted with the power and majesty, if you will,
of the Government, that realized through a police officer, an
FBI agent or some other law enforcement official, and that
person is alone in an unknown environment, in a foreign
environment, and is under a criminal charge by virtue of the
fact that he's either arrested or he or she cannot leave, and
that is the genesis of the whole Miranda protection that is
offered to defendants.
Your Honor, in this case, Mr. Nader's apartment was
searched. We submit the evidence shows that Mr. Nader's
attorney contacted Mr. Northrop. Now, the reason we think
that that fact should be accepted by the Court is as follows:
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How did the postal inspectors know, if the Court will, who Mr.
Nader's attorney was, after they executed the search warrant?
The Court will recall that Ms. Moolenaar said that
someone from the Government, either Postal or Customs, called
her, and asked her to come down. That was Ms. Moolenaar's
testimony.
The Court will recall that the testimony from the
Government was that Ms. Moolenaar contacted Northrop or Kelly,
and that was a result of leaving a copy of their business
cards as well as a copy of the search warrant affidavit, the
inventory and the search warrant.
Now, there's some dispute about whether or not Mr.
Gauntt actually received a copy of it, but, Your Honor, Mr.
Gauntt signed it, and that is in writing, and it reflects that
he stated that he received a copy of the affidavit.
But putting that aside for a moment, we would ask the
Court to credit our witness's testimony of the fact that Ms.
Moolenaar did contact our witness, because there was no way
for the witness to know that Ms. Moolenaar was the attorney.
So how would they know who to call? How would they know what
Mr. Nader was going to do?
The call was made, and Your Honor, this is, not where
the trouble sets in, but this is where the whole situation
starts. Ms. Gwynneth Moolenaar, Your Honor, is an experienced
special assistant, as she calls it, United States attorney.
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She worked for the Department of Justice. She is admitted to
several bars.
We submit, Your Honor, Ms. Moolenaar saw a client who
was in fear of being arrested, in fear of allegations being
Made as to his sexual preferences, as they related to small
children, and Ms. Moolenaar wanted to handle this as
efficiently, as quickly and as non-media-wise as possible.
And the reason she took the course she did, and it’s not
unusual, was to locate this situation, to get in and speak to
the postal inspectors, try to find out what this case was
about, find out where it was going, and find out about their
evidence.
Your Honor, another thing we ask the Court to
consider when it makes this determination about the
motivations of Ms. Moolenaar -- and we think her motivations
are important -- Ms.
Ms. Moolenaar made a
tactical decision to
inspection office to
she was going to get
was a give and take,
Moolenaar was getting free discovery, and
tactical decision, we would submit, a
take her client into the postal
allow them to question her client, and
something out of the deal as well. It
Your Honor, and that is what Ms.
Moolenaar bargained for, and that is exactly what she got.
When she arrived at the office of the postal
inspector, she was under no misapprehension.
No one pulled
the wool over her eyes. If Mr. Nader had walked into that
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office by himself, we would not be standing before this Court
today, because that clearly would have been foul play. I£ Mr.
Nader had walked in by himself, being a Lebanese citizen,
possibly -- possibly -- but we say as to the contrary as a
result of his education, his background, his business
interest -- possibly there would have been a question of
overreaching. But he walked in protected, the prophylactic of
an attorney, and we can only assume that they had a chance to
talk about this before.
We seriously dispute Ms. Moolenaar's contention that
she went down there the same date Mr. Nader went to see her.
We would take issue with that, Your Honor, but of course the
Court is the final arbiter of the facts.
Once they walked in, they sat down and they started
to talk about the matter at hand, which was the contraband,
the obscene pictures, the child pornography, and as time wore
on, Ms. Moolenaar assumed more of an advocate -- became more
of an advocate. She had the presence of mind to tell her
client not to sign anything, not to write or not to initial or
to date anything.
But she tells this Court in the same breath that this
wasn't a criminal situation. What was she thinking about when
she told her client not to do that? Does something suddenly
spring forth in her head that "Hey, maybe I shouldn't have my
Client do this"? And at that point, Your Honor, at that
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point, Mr. Nader had the protection of Ms. Moolenaar, and
legally, as far as the case law stands, as I understand it,
the Government didn't have to offer him anything, because he
had his lawyer right there. We didn't even have to advise
him. He had his lawyer right there with him, a criminal
lawyer, an assistant United States attorney.
Now, there came a time when we did advise Mr. Nader
of his rights. We would submit to the Court that that was
even unnecessary, but Northrop did it anyway, and at that
point, approximately an hour, an hour and a half, maybe two
hours had elapsed during the course of the interview. Mr.
Nader had made very damaging statements establishing a nexus
between himself and the evidence that is remaining, that being
the controlled delivery, admitting he ordered it, telling us
how he ordered it, with his lawyer sitting right there.
He was Mirandized, he was read his rights; they were
explained to him. His lawyer was right there. She even
signed as a witness. And the questioning started anew about
the same area, over the same subject matter, and again Mr.
Nader made the same damaging admissions against his interest.
After the interview was over, at 5:00 o'clock or
shortly thereafter, Mr. Nader got up out of the office and
walked away, and he remained free, up to the time he was
called before the Court by way of indictment. And he still
remains free today. He's out on bond.
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Your Honor, at no time, at no time ~-- we would submit
that defense could not stand before this Court and make a
Miranda custodial argument because it just didn't exist.
Now, what I suspect the defense will try to do is
create a situation by which Mr. Nader was misled. What I mean
by that is this. That promises were made to Mr. Nader through
his attorney that no charge would be brought, that no
prosecution would follow, if they would come down and talk to
us, and, Your Honor, we think that the facts and circumstances
bear out that that did not happen, and the hard, hard fact is
that Ms. Moolenaar should have known better, and she -- and
the Court recalled that she said on the witness stand herself
under cross-examination, I asked her:
"Ms. Moolenaar, you were a special assistant U.S.
attorney, and you worked criminal cases?
"Yes, I did.
"Did you ever have an occasion in which a law
enforcement officer made a decision on prosecution?
"No.
"That would be unusual, wouldn't it?
"Yes, highly unusual."
And that was the colloquy, Your Honor.
"Ms. Moolenaar, did you know and appreciate that when
you walked into that interview on April 16th, 1984?
"Yes."
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Your Honor, we think it's plain and simple. No one
pulled the wool over Ms. Moolenaar's eyes. No one lied to
her. No one coerced her. No one threatened her or Mr. Nader.
They made a tactical decision, and we submit that the
Court should not enter its judgment for that judgment of an
attorney who's on the line, Your Honor. MTwenty-twenty is
always hindsight. This is what Ms. Moolenaar thought was the
best thing to do for her client.
In reality, maybe Ms. Moolenaar should have gone in
and the first words out of her mouth is: "Everything that we
talk about from this point forward is off the record. You and
I are going to have a discussion about what you have, and we
will make a decision as to if we want to cooperate with you or
whatever the situation may be." Being an experienced special
assistant U.S. attorney, that should have popped into her mind
almost immediately, but she chose not to follow that course.
And I don't know, even if the Court were to say to
the Government, "Well, Mr. Dixon, I understand what you're
saying, all of that is true, but the Court on a public policy
theory has to step in; where it appears an attorney is acting
in an ineffective manner, we have to step in and protect the
unassuming public."
But, Your Honor, we would ask the Court to view this
situation as Strickland vs. Washington points out. We would
submit that Ms. Moolenaar may be guilty of making a poor
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judgment call, but she was not incompetent, she was not
ineffective, because Strickland, the newest case from the
Supreme Court on ineffective assistance of counsel, says you
look at the standard for the particular community of lawyers
that you're talking about, and here in Washington, D.C., I
think the Court can readily state and even agree with the
United States, that criminal attorneys in this jurisdiction
always meet with prosecutors; not always, but more often than
not they meet with prosecutors when they have defendants, to
try to work cases out. Pre-indictment pleas have sprung from
those, cooperation agreements where the defendant is going to
cooperate to assist the Government in investigating another
wrongdoer, and those situations are a matter of record.
What I mean by that, Your Honor, is we did not see
any piece of paper coming from the defense or from the
Government to the effect that the United States and Mr. Nader
have a deal. Ms. Moolenaar could not produce one shred of
paper signed by a prosecutor, even signed by Northrop,
indicating that no prosecution would follow if she came down
and had her client submit to questioning.
Your Honor, we submit that all the cases we've cited
in our motion papers and most notably Miranda talks about it.
There's a passage in Miranda, if I may, which reads:
"The presence of counsel in all cases before us today
would be the adequate protection device necessary to make
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the process of police interrogation conform to the
dictates of the privilege against compelled
self-incrimination. Counsel's presence would insure that
statements made in the Government-established atmosphere
are not the product of compulsion." Miranda vs. Arizona,
384 U.S. 436, 466.
Your Honor, when we're talking about a one-on-one, a
defendant with a police officer, or the defendant against the
Government, we've got a long hard row to hoe, especially ina
situation like this, to show that a person made a voluntary
and free statement, but in a situation where you have an
attorney present -- this isn't a rookie, this isn't someone
right out of law school. This is an experienced criminal
lawyer.
She had the options, weighed the options, and made a
tactical decision to take her client down to speak with the
postal inspectors, and that's exactly what happened. It was
give and take. She had to give something to get something.
She got free discovery. She got to look at all those
magazines, even before the prosecution, before the grand jury.
THE COURT: Well, she had an opportunity to look at
them.
MR. DIXON: She claims she didn't look at them. But
that was even before the grand jury had a chance to look at
them, even before the Government prosecutor had a chance to
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review the evidence that we had.
And, Your Honor, I urge the Court to find factually
that Mr. Nader came to the postal inspection office
voluntarily; that he came with counsel; that he had
representation from an experienced attorney; and legally, that
the statements, the incriminating statements he gave -- and he
did give incriminating statements at both stages, pre-Miranda
and after Miranda -- were made freely and voluntarily, with
the advice of counsel. And that's in the alternative, because
our first position is, Your Honor, that Miranda didn't apply
to the situation, because it was non-custodial and because the
man came in with a lawyer.
Your Honor, we would ask the Court to so find and
deny the portion of the defense motion that goes to the
Suppression of statements, and stand ready to respond to any
questions that the Court may have.
MR. HOFFMAN: Thank you, Your Honor.
A couple of preliminary matters that I should voice,
although I am sure the Court is aware of them, having written
the opinion in this case that brings us here today. First --
and, Mr. Dixon, I'm sure he understands this, but didn't start
from this premise -- the Court has already held the warrant in
this case was invalid, unconstitutional. The Court has also
held that a subsequent search was illegal. The Court has
further held that everything seized by the Government, all
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fourteen bags of material that belonged to Mr. Nader, was
seized illegally and has been suppressed.
The only thing that remains in this case from that
search is the package that was intercepted at the border,
delivered to the defendant's home when he was not home, taken
from his home before he came home; a package the defendant
never saw, never had in his possession. Everything else in
this case has been suppressed.
Your Honor, in this hearing, as a result of that
prior ruling, the burden is on the United States to show that
the statements in this case did not result from an
exploitation of the illegally seized evidence. That's the
operative phrase. They have the burden of showing that these
statements were not the result of exploiting the illegally
seized evidence. They must show that the statements were the
result and obtained by means sufficiently distinguishable to
purge that primary taint. The Supreme Court recently so held
in Taylor vs. Alabama, 457 United States 687. It's a 1982
Supreme Court opinion.
Your Honor, the Government has premised most of its
testimony and a large part of its argument on Miranda vs.
Arizona, and the giving of Miranda warnings and the signed
waiver of rights by the defendant. Your Honor, that argument
in this case is a complete red herring. The Supreme Court in
Taylor expressly so held, and let me read Your Honor a brief
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paragraph from Taylor:
"The State points to several intervening events that
it argues are sufficient to break the connection between
the illegal arrest and petitioner's confession."
That was an arrest case, this being a search case,
and I'll get to the distinction in a moment.
"It observes" -- the State does in Taylor -- "that
petitioner was given Miranda warnings three times. As our
foregoing discussion of Brown and Dunaway demonstrates,
however, the State's reliance on the giving of Miranda
warnings is misplaced."
The giving of the Miranda warning is misplaced, Your
Honor, because this isn't a Fifth Amendment case. We're not
here discussing the custodial environment under which Mr.
Nader may or may not have been.
This is a taint hearing. The purpose of this hearing
is to determine whether they exploited this illegally seized
evidence. This is a Fourth Amendment question, not a Fifth
Amendment. The presence of counsel for the defendant, the
giving of the Miranda warnings, the fact that he was not under
arrest is irrelevant. The question here is: Did they exploit
this illegally seized evidence to obtain statements from the
defendant?
The Court in Taylor held that when you're doing a
taint hearing, the giving of Miranda warnings doesn't even
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} or. f-). A-TZ. £OQO5
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matter in the Fifth Amendment context, in a confession. That
is especially true in the context of a Fourth Amendment
question, in illegally seized evidence.
Your Honor, we cited some cases in our initial
memorandum. There are two others which were directly on point
in this case. I'm going to have trouble pronouncing the first
one, but it's United States vs. Rubalcava-Montoya, 597 F.2d
140. It's from the Ninth Circuit, and I'm quoting from page
143, where the Court said:
"The Government has not rebutted the logical
inference on these facts that the incriminating 'evidence'
discovered in the course of the illegal search was used to
persuade these witnesses to testify. ... The probability
that official Government action, based principally on
evidence provided by the search, induced Ventura's
testimony suggests a close, direct link between the
illegal search and the testimony used against the
appellants."
The Ninth Circuit elaborated on that same thought,
Your Honor, United States vs. Taheri, 648 F.2d 598. At page
601, where they discussed the seizure of opium from the
defendant in an illegal search of his car and subsequent
statements, it says:
"Shortly after the appellant was illegally arrested,
confronted with the illegally seized evidence, and advised
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of his Miranda rights, he executed a written consent to
search both his car and hotel room where the opium was
discovered.
"The government seeks to justify admission of the
opium evidence because of the appellant's consent. ...
The evidence found as a result of that consent must
nonetheless be suppressed if the unconstitutional conduct
was not sufficiently attenuated from the subsequent
seizure to avoid exclusion of the evidence."
The Court held in that case there was no sufficient
attenuation.
"The government, which bears the burden of showing
admissibility in these circumstances, points to no
intervening events which would show Taheri's consent was
‘sufficiently an act of free will to purge the primary
taint of the unlawful invasion.'"
Your Honor, what those cases suggest, as in this
case, that what we focus on is whether the Government
exploited the evidence that it obtained in that illegal search
of Mr. Nader's room to get statements.
THE COURT: Well, in those two cases, were the
defendants represented by counsel?
MR. HOFFMAN: Were the defendants represented by
counsel at the time the statements were obtained? I do not
believe, on the facts of those cases, Your Honor, that the
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defendants" counsel were present with them. I do not know
whether they were represented by counsel at the time. That is
not apparent on the face of the pleadings.
Your Honor, I think that the use of the Government's
reliance on the fact that the defendant was in a non-custodial
situation and was Mirandized is best rebutted by a couple of
statements that Professor LaFave included in his treatise that
we cited in our original memorandum on pages 28 through 30,
and we have the cites in those memorandums at those pages,
Your Honor. It's pointed out by Professor LaFave that:
"Statements based on the presence of illegally seized
evidence are more suspect than statements made after an
illegal arrest, because confronting the suspect with
illegally seized evidence tends to induce a confession by
demonstrating the futility of remaining silent."
The Supreme Court of California in a case very
similar to ours said that:
"If Miranda warnings were held to insulate from the
exclusionary rules confessions induced by unlawfully
obtained evidence, the police would be encouraged to make
illegal searches in the hope of obtaining confessions
after Miranda warnings, even though the actual evidence
seized might later be found inadmissible. To so hold
would result in the Miranda warnings, which are intended
to protect the defendant's right to counsel and to remain
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silent and to prevent exploitative police practice,
becoming the instrument of a bootstrap operation to
insulate unlawful police activities from the effect of the
exclusionary rule."
That's what we have in this case, Your Honor.
THE COURT: When would such evidence ever be
admissible, or such statements?
MR. HOFFMAN: The statements would be admissible,
Your Honor, if, for instance, there was an illegal seizure in
a case, but there was also legal seizures of legal evidence
that were very persuasive, and based on the legal evidence
that the defendant is confronted with, he decides that it is
in his interest to make some statement. That's not in the
case here.
THE COURT: Suppose it's 90 percent illegal and 10
percent legal seizures? That's close to what we have here.
MR. HOFFMAN: If it is 90 percent legal and 10
percent illegal --
THE COURT: You've reversed it.
MR. HOFFMAN: I'm sorry. If it's 90 percent illegal
and 10 percent legal --
THE COURT: Yes.
MR. HOFFMAN: -- and both types of evidence sit on
precisely the same level, I think a much stronger argument can
be made that the statements are admissible, but as we'll
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demonstrate here, and as I think Your Honor will see, the
evidence in this situation is not on the same footing.
See, what happened here, Your Honor, is we have a
seizure of a massive amount of evidence that is potentially
illegal from the defendant's room. It was unwrapped, it was
in his possession, had his name on it. It was together with
all his other material that clearly indicated his ownership.
That's one type of evidence.
Then we have another thing. We have an envelope. It
was delivered. That's why we brought Mr. Gauntt here to
testify, Your Honor, even though I think the Government cannot
dispute this. That envelope was delivered when Mr. Nader was
out of town. The Government tried to deliver it three times.
The third time they left it, knowing he was out of town.
They then went and got the search warrant. They came
back, took the envelope back. He was still out of town.
They didn't leave the inventory. That fact is clear.
But even if they did, I ask Your Honor to look at the
inventory -- it's been admitted -- the package is not listed
on the inventory. The package is not listed on the inventory.
The only things listed on the inventory are the things that
were taken from the defendant's room.
The defendant didn't even know the package existed
when he came down for that meeting. He knew his room had been
ransacked. He knew they had gotten -- I don't know how many
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magazines are in the material that we've looked at, Your
Honor, but it's fair to say dozens. He knew that they took
his photo albums, he knew that they took all his other
personal documents, and he knew that he needed those back. He
knew they had his passport, and he couldn't travel without it.
He knew all of that. He knew nothing about this package.
THE COURT: He knew about the package once he got
there.
MR. HOFFMAN: Once he got there, that's correct, and
I think that that's important. The sequence of events that
happens at the meeting with Mr. Nader does become very
important, because of what Your Honor said, because of the
separation between illegally seized and legally seized
evidence, but in this case, that package is an entirely
different situation from all of this other evidence.
Your Honor, I think there are two facts that are at
issue in this hearing that are disputed that are important.
The principal one, principal fact that is important, is the
sequence of review of this material at the meeting, and I
think Your Honor has recognized that in discussing the
admissibility of certain of these documents.
If the Government presented Mr. Nader -- I shouldn't
say if. The Government presented Mr. Nader, when he walked in
that room, with a mass of illegally seized evidence. It was
sitting there in this -- I don't know if it was described. I
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think it was described as a hamper, three feet by three feet
by two feet, in fourteen bags; dozens of magazines that Your
Honor has held in a footnote in the opinion, you cannot
quarrel with the determination that at least some of those are
obscene, and others are of a similar character to that which
was in this sealed package.
Upon confrontation by Mr. Nader, we submit, with all
of that material, any statements he made at that point are the
fruit of the poisonous tree. Those statements are induced by
the presentation of that evidence. That's the purpose. That
was the Government's objective.
Under cross-examination by Mr. Povich, although
reluctantly, Agent Northrop acknowledged that the reason all
of that material was sitting there was so that he can show it
to the defendant: "Come on, George, look at what we've got
here." The presence of counsel doesn't matter to that, Your
Honor. It's the smoking gun. "We have got the handgun that
was used to kill this person. Your fingerprints are all over
it. You want to talk to us?"
If that handgun has been illegally taken, any
statements made after that, whether there's a lawyer there or
not, are the fruits of the poisonous tree. It's a deliberate
exploitation of illegally seized evidence. They have used all
of this other evidence to make Mr. Nader talk.
Does the Court believe for a moment, if the only
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evidence in this case, and the only legal evidence in this
case is that package, that Mr. Nader would have come down and
made the statements the Government contends he made about that
package? No. What the Government did is, they took out the
magazines.
Now that Your Honor has the notes, this is critical.
Look at the notes. Look at the sequence of this meeting. The
agents testified -- and I'll get to the agent's credibility
and a couple of things that we would ask Your Honor to
consider -- the agents testified, and I would submit the
agents so testified because they are knowledgeable about the
law and know the importance of these facts, that the first
thing they went over at that meeting was this package. They
did that because they know what Mr. Dixon is going to argue,
that statements made as a result of being confronted with
solely that package are admissible, because the package, the
Court held, was legally seized.
In fact, if you look at -- don't take, for the
moment, Ms. Moolenaar's notes. Take Agent Northrop’s notes.
Look at his handwritten notes: his handwritten notes, the
contemporaneous notes. Not a word about reviewing this
package in the first part of these notes. Not a word.
It says yes --
THE COURT: Is that 7?
MR. HOFFMAN: This is 7, correct.
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THE COURT: Seven, all right.
MR. HOFFMAN; It says yes, he ordered pornographic
Magazines of boys, and then it goes into some description.
And then it says Bag No. 1. That's where it says "refused to
initial. Admitted ordering magazines."
Then it says Bag No. 2, 3, 4, 5. Six is skipped,
Your Honor. I'11l tell you, I think it's clear why 6 is
skipped. We'll get to that in a minute.
But do you believe that this experienced agent --
this is what the Government is asking you to accept as a
fact -- that this experienced agent would have gotten an
admission from the defendant that he ordered the very package
and knew what was in the very package that is the subject of
the controlled delivery, and is going to be the focus of their
criminal investigation, and when the defendant so states at
the beginning of the meeting, he wouldn't write it down? He
didn't write it down? Apparently he says it was said, and he
wrote down he admitted ordering No. 1, he wrote down that he
generally admitted ordering some magazines about boys, but he
didn't write down that he admitted ordering this package?
Now, for purposes of this hearing, Your Honor, for
purposes of this hearing, the ultimate credibility
determination about whether Mr. Nader admitted ordering this
package is not at issue. I repeat that again. This is a
motion to suppress whatever statements he made about this
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package. Whether Ms. Moolenaar is right in saying he made no
admissions about ordering this package or Agent Northrop is
right, the Court need not decide that.
What the Court need decide is whether whatever
statements they got out of this package were the result of
exploiting this illegally seized evidence, and on that these
notes are almost conclusive, because these notes suggest they
went through that material bag by bag first, and before they
got to that, before they got to that, Your Honor knows what
they did. They went through Bag No. 6, because Bag No. 6 is
the bag that had the pictures of the boys in it.
Agent Northrop testified that his primary concern in
this case is making sure that there were no children involved.
So what he did when they got there is, the first thing he
pulled out and talked to the defendant about is: "Who are
these boys? Give us their names and addresses. We want to
know who these people are." And then maybe he starts talking
to him about molestation.
Of course, The defendant knows he's involved in no
molestations, and the Government has conceded that for
purposes of this case, and he says, "You want those names? I
didn't do anything there. I'll cooperate with you on that.
Here's their names and addresses." And they get him talking.
They exploited the illegally seized evidence.
The Court has specifically held that the purpose of
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the Government in seizing that kind of material was illegal,
although perhaps not something to be condemned, given all of
our feelings about their desires to make sure that there are
no sexual offenses involved. It was illegal. Their petitions
had no basis in probable cause, were not presented to the
Magistrate, were not used as a justification for this warrant.
But that was the first thing that they did at this meeting.
That's why Bag No. 6 is not listed. It goes l, 2, 3, 4, 7.
Now, look at Ms. Moolenaar's notes, Your Honor. Look
at Ms. Moolenaar's handwritten notes of this meeting taken
contemporaneously, before she knew there was going to be any
issue about this in this case. They go through the background
material, prior employment, all consistent with what the agent
also testified.
They came to Washington, D.C, his immigration plans,
all consistent. First thing reviewed from the miscellaneous
box is Bag No. 6. Contemporaneous notes. Pictures of cousins
in Norway, close family friends. Gives the family name.
Tells who the boys are.
Then go over fifty pictures of boys, to identify who
they were. Not obscene pictures, just pictures.
The next thing they get to is the defendant's
passport, which isn't surprising, because one of the reasons
the defendant wanted to go down there, in all probability, and
the agents testified to this, is they knew he traveled a lot,
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and they had his passport. He couldn't leave, he couldn't do
any of his business, he couldn't go out of the country, unless
they would give him back his passport. So then they talked
about his passport.
Then the next thing that happened is they went over
Bag No. 1. Your Honor, in determining credibility, I ask you
to look at the following, because this is extremely important.
Ms. Moolenaar did not hesitate to write down on these notes
where an admission is made. You see under Bag No. 2 -- and
this is a damning admission on her part -- it says under Bag
No. 2, "Admitted ordering magazines.”
The defendant did admit placing some orders. He did.
Agent Northrop says that he admitted it. Ms. Moolenaar says
that he admitted it. He admitted ordering those magazines
that the Government already had conclusive evidence he'd
ordered. They were in his home, they were unwrapped, they
were in his dresser, they were under his bed. They were
wherever the Government took them from when they illegally
searched.
You flip through all those bags, confronting the
defendant with fourteen bags of illegally seized evidence, and
then you get to the controlled delivery, and that's what
happened, Your Honor. They made a concerted effort to wear
him down with all this material that they knew was in his
room, that he had no possible explanation for. They had him
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dead to rights. The cat was out of the bag, as one of these
decisions says on illegal searches. The cat was out of the
bag, and then they got him to make statements about this
illegal package.
THE COURT: What was in Bag No. 9?
MR. HOFFMAN: What was in Bag No. 9? Bag No. 6 you
mean?
THE COURT: Nine.
MR. HOFFMAN: The only thing written on these notes
is that there was high school material. It says "High school
ID." As Your Honor will recall, I believe there was a high
school book that was taken, some material from Carmel, Ohio,
where the defendant went to high school. I suspect that
that's what's in those bags.
Your Honor, I think we'll have trouble if we go back
to the evidence in its present form and try and compare it
with this. I don't believe the condition of the evidence is
the same. I don't believe the same material is in the same
bags. We have to go based on what's in the contemporaneous
notes, because the bags are no longer the same. It's been
looked at and placed in different bags. No one did anything
intentionally, I'm not suggesting that. I'm just suggesting
that this is all we have. They're not the same. We can't go
back and examine it based on its current condition.
Your Honor, I think what we have here is a classic
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case of exploitation of illegally seized evidence. The
Government has failed to demonstrate any sufficient
explanation for the defendant making any statements about the
only evidence that remains in this case, which is this
package, other than the exploitation of the evidence which was
illegally seized.
Whatever statements were made about the controlled
delivery, whatever statements there were -- and I repeat
because I think it's important, and it was a major focus of
this hearing; even though it was for purposes of this motion
not a critical determination, it was a major focus of this
hearing -- what statements the defendant did, in fact, make
about that controlled delivery -- and we all got sidetracked
into discussing that, into a debate between Ms. Moolenaar and
the agent about did he acknowledge that he knew such and such
or did he not.
That issue is not the critical issue here, because
whatever statements the defendant has made came after an
exploitation of the illegally seized evidence, and under the
standard of Taylor vs. Alabama, going all the way back to Wong
Sun, the original case on the fruit of the poisonous tree and
the taint doctrine, this is a case in which whatever
statements were obtained have to be suppressed.
Your Honor, I want to address one other thing,
because Mr. Dixon talked credibility, and as I've said, on the
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sequence of events, credibility is in issue here. I ask you
to consider the following things in considering Agent
Northrop's credibility. The first one is his testimony
regarding the inventory for conducting the search.
He said he was certain, absolutely certain, that that
inventory was left in the home. Your Honor, we've established
conclusively, I believe, that that inventory was not left in
the home. Mr. Gauntt has absolutely no reason to lie. He has
no interest in this proceeding. He signed it, because the
Government said we need you to sign this. He's a 70~some year
old man who testified he trusted the government. They told
him "I need you to sign this," and he signed it.
Did they leave a copy with him? Absolutely not. He
would remember, for God's sake. I said, "Assume that this
man's house has not been searched very often." When four
agents came into his house and searched it, if they left
something, he would remember it, and he doesn't remember it,
because it didn't happen. He testified he did not receive a
copy.
THE COURT: He signed it.
MR. HOFFMAN: Sure he signed it. They gave it to him
and told him to sign.
But that's not the only evidence, Your Honor. Ms.
Moolenaar is not lying about it. She picked up the pink copy
at the Clerk's Office. When she went downstairs to get a copy
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of the inventory and the warrant, the pink copy, which is the
recipient's copy, the copy that they would have left, had they
left a copy, was attached to that material. That's where she
got the inventory.
Besides that, Your Honor, if she had the inventory,
what the heck would she need to go down there to go over what
had been obtained in the search? It's listed in the
inventory. The Government contends that her motivation was to
get free discovery. If you had that inventory, you don't need
the discovery. It says in there, "20 obscene magazines of
boys, passport." Whatever they took is listed.
On my copy, the Xerox that's admitted, you can't read
it very well, but the pink copy is better. You don't need
this kind of free discovery that's supposedly the reason they
came down there. It's listed in the inventory. She didn't
have the inventory. The agent's testimony on that point is
simply not credible.
The second thing, Your Honor, is he testified that he
is absolutely certain this package was opened and the contents
were displayed. Absolutely certain.
Your Honor, I said that I believe the agent in this
case knows the law. He demonstrated that much when he talked
about Miranda. He was very knowledgeable about Miranda and
the fact that he didn't have to give Miranda warnings because
this was a non-custodial setting. Very careful about that.
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To believe that the agent would go over the very package
that's the controlled delivery, is the focus of this case, and
not write it down is not credible.
So, on the ultimate issue in this case, which depends
in part, in part, on the sequence of inspection, I ask the
Court to credit Ms. Moolenaar's testimony, that what happened
here is they went over the illegally seized evidence to induce
the defendant to make statements. That's precisely what they
did, and that's precisely the reason the Court should suppress
those statements. Thank you, Your Honor.
THE COURT: Of course, at the time when they went to
the agent's office to view this material, it's obvious that
counsel would have known that there was a package or something
to that, triggering the search warrant, isn't it?
MR. HOFFMAN: She may not have known that, Your
Honor. I don't think it's obvious at all. A defendant with
this quantity of material in his room, there could have been
Many other methods by which they obtained the search warrant.
There could have been somebody who testified that there's a
paedophile at this address. They could have presented that
evidence. She did not have --
THE COURT: I think she testified that, throughout
this meeting, she saw this envelope, even though she said it
was never opened, but she saw this envelope sitting on the
table.
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MR. HOFFMAN: At the time of meeting, there was no
question that there was knowledge that there was an envelope
in this case. There was also knowledge that there was all
this other paedophilia in the case, all of these other
magazines that they could have prosecuted at that time the
defendant for obtaining.
THE COURT: Well, of course, presumably, you say they
could have prosecuted, but I suppose counsel could also have
thought there was a chance for a motion to suppress, if they
were seeking to prosecute him.
MR. HOFFMAN: At that time, Your Honor, counsel did
not even have the affidavit -- I think there's undisputed
testimony counsel did not have the affidavit or the search
warrant which resulted in the entrance of the defendant's home
and his room. She knew that there had been a search, and she
knew that a lot of material had been obtained, but she didn't
know what it was, and she didn't know how they got in there.
But, Your Honor, I think what we have to --
THE COURT: Of course, she could have asked for it.
MR. HOFFMAN: She could have asked, Your Honor.
There's no question she could have asked. But I think what we
have to focus on is not what the defendant's counsel's conduct
was. I don't think that's really the issue here.
We acknowledge that this is not a custodial setting.
We're not saying that the defendant was pressured through
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questioning at which he should have had a lawyer to make
statements. What happens, though, is the lawyer is distinctly
irrelevant to this determination.
"We've got you. Here's all of the evidence. Do you
want to talk to us about it?" Particularly, Your Honor,
particularly when they bring up the subject of child
molestation. "Here are these pictures of these boys. Tell us
who they are. Tell us where we can talk to them." And the
defendant, being confronted with what he at that time did not
know was illegally seized evidence, says, "I'll give you those
names and addresses. I didn't do anything wrong. You can go
check it out," and he does so.
THE COURT: Of course, you almost act as though the
defendant was there without his counsel. He did have an
attorney there.
MR. HOFFMAN: That's correct, Your Honor. We
obviously don't dispute he had an attorney there. But I don't
think, Your Honor, when the issue is confronting someone with
illegally seized evidence that induces a statement, the
presence of counsel is a determinative factor, unlike the
Fifth Amendment.
THE COURT: But it is a factor.
MR. HOFFMAN: It may be a factor. It may be a
factor. It's not irrelevant. They're entitled to bring it it
up. I think it's admissible in this hearing. But it's not a
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determinative factor on the decision about whether the
Government has exploited the illegally seized evidence, which
is the critical question. The presence of counsel doesn't
make the presentation of illegally seized evidence,
particularly this massive quantity of illegally seized
evidence, any more legal, or it doesn't make the defendant's
statements any less a product of being confronted with that
material than if there was no lawyer.
If he had come in, into a non-custodial setting, and
been confronted with this illegally seized evidence and made
statements, I don't think that would be materially different
than the situation in this case. There might be the question
that Mr. Dixon said we could have raised, had he been alone,
about overbearing his will, Fifth Amendment type violations,
but those questions aren't before the Court. Those questions
have not been raised. As to those questions, I think it
clearly would make a difference. As to this question, this
taint here, I think it doesn't make a difference.
I think the cases that discuss how the warnings of
the defendant, the cautioning of the defendant, the giving him
of his Miranda warnings in that one case we read -- in the
Supreme Court case, they said it three times, repeatedly
telling him, "You have the right to remain silent. Don't make
statements. Anything you say can be used against you, can and
will be used against you." No question of the defendant not
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understanding his rights in those cases.
When you read those cases, all of the cases we cited
today and the ones in the initial memorandum, none of the
cases suggest that the defendant somehow didn't understand his
right to a lawyer, or didn't know he could ask for a lawyer.
The point that those cases make is once you confront him with
the evidence of the crime, the cat is out of the bag. Silence
is futile. They demonstrate the futility of the silence. The
lawyer's being present doesn't make silence any less futile.
Thank you, Your Honor.
THE COURT: Mr. Dixon.
MR. DIXON: Your Honor, just a few brief points.
Your Honor, I would agree with Mr. Povich and Mr.
Hoffman wholeheartedly, had not two things happened, and Mr.
Hoffman very politely stayed away from both. They base their
argument on a Fourth Amendment violation.
Your Honor, the Court will recall, in reading Wong
Sun, the seminal case on taint, the second part of the
decision went to Wong Sun. A man who was arrested on one
date, was released on another date. Some time passed, and
that's the crucial, one of the crucial factors in this case
that Mr. Hoffman stayed away from, to get away from the taint
argument.
The search was on April 12th. Mr. Nader wasn't there
on April 12th. The interview was on April 16th, four days
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later.
All the cases that Mr. Hoffman cites stand for those
propositions that he said they stood for: immediately after
arrest a person is confronted, or shortly after arrest a
person is confronted. But we don't have that here.
That's why Mr. Hoffman didn't talk about it, because
the taint -- assuming, arguendo -- and we don't agree there
was a taint -- but assuming, arguendo, there was, it was
attenuated by the time that Mr. Nader had the presence of mind
to get the card that had been left by Northrop, the presence
of mind to find an attorney, a criminal attorney, a special
assistant United States attorney. Now, he didn't know that at
the time he got Ms. Moolenaar, but he had the presence of mind
to find an attorney -- that's two days gone -- to discuss the
case with the attorney, and we -- and we, of course, with this
rendition, are disputing what Ms. Moolenaar said -- to find
the attorney, to discuss the case with her, for her to get on
the phone and set up an interview, some four days later, and
within that four-day time period, she could have come down
here and got a copy of the search warrant, come down here and
got a copy of the inventory, even though we dispute an
inventory wasn't left. She could have done a whole number of
things. That's the first thing Mr. Hoffman didn't want to
talk about.
The second factor that he did talk about, and tried
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to minimize, and rightfully so, and that is, after the taint
has been attenuated by four days, a meeting is held, a meeting
not like Wong Sun, where he goes in with his lawyer, a
Criminal lawyer, someone that he has consulted. Wong Sun
walked in there by himself, and gave an inculpatory statement.
The Supreme Court said it was wrong, the seizure of the
evidence was bad.
But we have an attenuation of the taint over four
days. This man has had a chance to think about it. He's been
in the community. He's not been locked up in jail. The same
thing with Mr. Nader. He's an intelligent individual, who's
confronted with a volatile situation, because he's trying to
save his image, as a person who deals with the Middle East
exclusively.
He went to an attorney, he talked to her, and then
they made a decision to talk to the postal inspectors. They
didn't make a decision to contact the United States attorney
involved. They didn't want to get to that level. They made
it informal themselves. They have created it, if you will,
Your Honor. If they wanted to speak to an assistant United
States attorney, that was available to them. They could have
gone in and spoken to Mr. Behr or anyone who's responsible for
the case.
Assuming a lot about Ms. Moolenaar, we can assume she
knew that. She could have walked into the office, and the
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negotiations could have started there, instead of trying to
come in the back door and get as much as you can -- you got to
give up a little bit, but get as much as you can -- know more
about the case than the prosecutor when the prosecutor get it.
And, Your Honor, if there was any taint, that taint
was attenuated to virtually nothing four days later when Mr.
Nader walked in with his lawyer, and you will recall that she
was asking him questions about probable cause and everything
else, but she conveniently forgot to ask for a copy of the
affidavit. Your Honor, that stretches credulity.
Your Honor, we would submit, again, and in final,
that the Court has ruled on certain documents that were taken
out of Mr. Nader's room. We're not quarreling with that right
now. Bound by that, Your Honor, anything that flows
therefrom, statements -- he could have said he participated in
the Kennedy assassination; anything that flowed therefrom is
bad. If it happened immediately -- if he was confronted with
it immediately after the bad search. But that didn't happen,
and he had the buffer of an attorney.
And, Your Honor, as much as they try, they're trying
to get the Court away from the fact. They're saying Ms.
Moolenaar's presence was de minimis. Why was she there? The
same question was put to her: "Why did you go? You didn't
need to go there. Why did you go? If they just wanted to get
some background, why did you go down there?"
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The reason she went down there is to try to derail
this prosecution and try to get control of the situation and
try to negotiate from that point, negotiate from a point of
strength, because knowledge is strength.
And I would take exception to Mr. Hoffman's remarks
about just having an inventory was enough. Ms. Moolenaar knew
more than just getting an inventory. She knew that she would
have to interview those officers, she would have to talk to
them, she would possibly try to get them to make admissions,
find out what they had, see what it looked like, see what the
value of it would have been in front of a jury possibly, see
if they found anything else they didn't mention, see exactly
what they had to convict her client.
That's what she did. Your Honor, we would submit to
the Court again, instead -- that the statements should not be
suppressed, because as far as the Fourth Amendment -- I
thought they were going to come in another direction, but
they're sticking with this Fourth Amendment argument, and we
submit that died, that died on April 16th, four days after the
search. That died on April 16th, when Mr. Nader came in with
his lawyer.
Taint was attenuated, it was gone, and Mr. Nader
wasn't there because of the bad search. Mr. Nader was there
to try to get around what the postal inspectors had found,
and, Your Honor, we would ask the Court not to go off in the
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direction with the defense on this Fourth Amendment taint
argument, because it is dead. It died on April 16th.
Now, if this had happened on April 12th or April
13th, we would submit there would probably be a problem, even
though Mr. Nader came down with his attorney, because it's
just too close in time; there wasn't a cooling off period.
And he had that.
Your Honor, we think that the fair disposition at
this point of this case, at this pretrial level, is for the
Court to deny the motion to suppress, and we would ask the
Court to so act.
MR. HOFFMAN: Your Honor, may I just address -- just
the proximity question. That's a new one. That's the only
thing I'm going to address.
THE COURT: All right.
MR, HOFFMAN: It seems to me we may have some -- I
don't think we have a confusion on the facts, but I heard
something that I was surprised that I heard. Mr. Dixon seems
to concede, if there was a close proximity in time between the
illegality and the statements, that under Wong Sun and its
progeny, there has to be suppression. He not seems to
concede, he does concede it.
His argument would be valid if the defendant was at
his house when they did this illegal seizure; they said we
want to talk to you about this stuff, and four days later he
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comes down to talk about it.
The defendant wasn't there. The first time he was
confronted with this illegally seized evidence is at this
meeting. There is no attenuation. He hasn't seen any of this
stuff. He's not around, he's out of town. He comes back in
town, there's been a search of his house. He's never talked
to anybody about it. He doesn't know what was taken, and the
first time he comes in, and they show him, "This is what we
got on you, fellow," that's when these statements are made.
There's no attenuation here, These statements are
the product -- immediately on being confronted for the first
time with this illegally seized evidence, they got these
statements. Your Honor, I concede Mr. Dixon has conceded the
case. This is an immediate statement based upon the
confrontation with the illegally seized evidence that the
defendant was subjected to. Thank you, Your Honor.
THE COURT: All right. Thank you, counsel.
Before I excuse counsel, and I will consider the
cases you've cited, are there any other cases you wish to
cite, Mr. Dixon?
MR. DIXON: No, sir, Your Honor.
MR. HOFFMAN: No, sir, Your Honor.
THE COURT: Before I excuse counsel, I don't believe
we've set a trial date in this case, have we?
MR. DIXON: No, sir.
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suppression of the items that were taken out of the room.
THE COURT: All right. How long do you think the
trial of this case will take, Mr. Dixon, if the case goes to
trial?
MR. DIXON: Your Honor, I think the Court has
probably heard our case in the motion. I would say about a
day, if that; a day, maybe a day and a half, and that would be
it, just the controlled delivery.
MR. POVICH: About the same.
THE COURT: About two to three days; is that what
you're saying?
MR. POVICH: Yes, sir, I would think three days at
the most.
MR. DIXON: With the understanding, Your Honor, we
would have to get the customs agent who initially intercepted
the mail and get him or her here, but I don't think that would
present a significant problem if we get to a trial posture.
And, Your Honor, let me just say this, and this would
have to remain oblique. If in the event that the Court
decides not to suppress the statement, and we're actually
going to trial, I have given this case a fresh look, and I
would have to do some very serious talking to people in our
office, and I hope the Court can appreciate my comments, and
I'll have to leave it at that.
THE COURT: But you said if the Court does not
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suppress the statements?
MR. DIXON: If the court does not suppress the
statement.
THE COURT: Well, I think we should set at least or
get a feeling for a trial date, at least a tentative trial
date, while I have you all here.
MR. DIXON: Very well.
MR. DIXON: Your Honor, my speedy trial clock has
exploded on this case -- I don't know where we are -- and I
would have to rely on the Court's clerk to tell us exactly
where we stand.
MR. HOFFMAN: I think I can give the Court some help
on that. If the Court doesn't already know, we have no speedy
trial pressure, because the motion was filed in a time period
that was excludable.
THE COURT: The motions have either been pending --
MR. HOFFMAN: Right.
MR. DIXON: I'm just talking about the time that
elapsed up to the filing of the motion. We have to count from
that time. Whatever time expired, I think we have to start
counting. If eight days expired, as the Court will recall, up
to the time of filing the motions, we have eight days in
already, and I just didn't recall when we started, because Mr.
Behr had the case before I.
MR. POVICH: There's not -- Your Honor, I can
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interject with Mr. Nader here, that the Speedy Trial Act is
not a right at this moment we wish to invoke, and I believe we
have already waived it because of the extensive nature of the
motions and the pendency of the motions, and we would continue
to do so to allow -- obviously, the Court needs time to rule
on the motions, but also with respect to the actual trial of
this case, that is not a factor. The defendant has been on
bond, and that is not a factor that we wish to raise at any
time in this case, based not only on what I'm telling you now,
but my earlier conversations with Mr. Behr when he was in the
case, and the recommendations which I made to him at that
time.
THE COURT: Well, counsel, going back then to a trial
date, one of the problems that we've had, I have, counsel, to
be quite candid, is that some cases that have already been set
by me, that appear on my calendar, which, of course, is all in
code down there, either are no longer my cases or will be
transferred to a new judge who is taking the bench in the next
two or three weeks.
MR. DIXON: Will this Court keep this case?
THE COURT: Oh, yes. There's no question that we
have this case. Criminal cases are not being transferred.
Well, let me ask you all first, when is -- what is
the first available date that you have on your calendars? I
can tell you that, as far as February is concerned, I'm not
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available, because I start a trial tomorrow which, absent some
Miracle, will go to trial, I'm sure. So I think we're at
least into March.
MR. DIXON: Your Honor, I would suggest a day during
the week of March 10 or March 17.
MR. POVICH: My time is better beginning of April.
THE COURT: What's that?
MR. POVICH: My time, Your Honor, is much better in
the beginning of April. My recollection is that I really have
a hard time picking right now in March, but I think I'm fairly
clear in April.
MR. DIXON: Could I suggest the week of April 14,
Your Honor? The first week and the second week in April are
bad for me, and if the Court and the defense are considering
the week of April 14, I would ask that we consider the 16th,
the 17th or the 18th.
MR. POVICH: Your Honor, I'm -- this always happens
to me. There's a bar convention that I'd like to attend that
would start right after that, and I've done this before, and
ended up sending my wife down alone, and if we could avoid the
middle of April. First part of April is good for me. Maybe |
the end of March is preferable.
THE COURT: Let me give you some dates.
MR. POVICH: Yes, sir.
THE COURT: And then if for some reason you cannot --
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if you're not available for those dates, why you can tell me.
The first date that I would have that appears to be available
is March 18.
MR. DIXON: That's agreeable, Your Honor.
THE COURT: Then March 25, I have a jury trial,
Criminal case, so that cannot be changed, unless there's a
disposition in that case.
THE COURT: April lst --
MR. POVICH: That's good for me.
MR. DIXON: Your Honor, I have a trial set on April
lst in front of Judge Pratt, but it's a case that I hope to
remove from his calendar and mine, but I would prefer, knowing
the conflict exists now -- nothing is absolute, except the
case has been set -- I'd prefer not to set another case on
that day, because of the obvious conflict.
THE COURT: Gentlemen, there's a possibility of April
8. I do have a matter set, but it's a civil matter, and I
know they've been having some discovery problems.
MR. POVICH: That's agreeable, Your Honor.
MR. DIXON: That's bad for the Government, Your
Honor.
THE COURT: That's bad for you?
MR. DIXON: Yes, sir, as well as the 10th.
MR. DIXON: What about the last week in April, Your
Honor? If the Court please and Mr. Povich, how's that?
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THE COURT: We discussed the 14th. That's a bad day
for counsel for the defendant.
MR. DIXON: No, the 28th, Your Honor; 28th, the 29th
or the 30th.
MR. POVICH: I don't want to be away for a week and
come back and start a trial. I don't think that's fair to the
client, Your Honor.
MR. DIXON: Your Honor, why don't we do this. Let's
set the lst down for the Nader case, and I will -- I don't
think that case will be on Judge Pratt's calendar as of April
Ist.
THE COURT: The lst?
MR. DIXON: Yes, sir. And I'll --
MR. POVICH: That's agreeable, Your Honor.
THE COURT: That's agreeable?
MR. POVICH: Yes, sir.
THE COURT: All right. Then we'll set it down for
the lst, but Mr. Dixon, please keep us advised.
MR. DIXON: Yes, sir.
THE COURT: Because Judge Pratt's case will have
priority, if it goes.
THE COURT: All right.
Then, Mr. Nader, I will continue you on the same
bond, with the same conditions. I'm setting your trial now
for April 1, but I do ask that, pursuant to the conditions of
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your release, you maintain contact with your counsel, in the
event it is necessary to change that date. The date could be
an earlier date possibly, depending upon your counsel's
calendar and the Court's calendar, or it can be a later date,
but at this point, we'll set it for April l.
But you are responsible to keep in touch with your
counsel, and if for any reason you cannot reach your counsel
on the basis of at least once a week to check these dates,
then you should call the Court to determine if there's been
any change in that date, because if you fail to appear on the
date set, of course I will issue a bench warrant for your
arrest, and additional charges can be preferred against you.
Do you understand that?
THE DEFENDANT: Yes.
(At 3:37 p.m., the hearing in the matter was
concluded. )
-o00-
CERTIFICATE OF REPORTER
I hereby certify that the foregoing is the official
transcript of proceedings in the hereinbefore-captioned
matter, and that it is complete and accurate to the best of my
knowledge and ability.
KI OING Doubhe K
HARRY DEO ESCH
Official Court Reporter