The opinion of the court was delivered by: BARTELS
Defendants Bruce Elliott and Abraham Slochowsky move to dismiss Indictment No. CR-83-00233 on the ground that the government deprived them of their rights under the Fifth and Sixth Amendments by using Joseph Bald as an informant while Elliott, Slochowsky and Bald were co-defendants in two state criminal proceedings. In other words, they claim that the information received from Bald was tainted.Slochowsky makes this same motion with respect to related Indictments Nos. CR-83-00178 and CR-83-00179. The court held a two-day evidentiary hearing at which the government offered the testimony of Bald, Max Sayah, who is an Assistant United States Attorney for the Eastern District of New York, and former Assistants Peter Sudler and Lawrence Ruggiero of the Southern District. The defendants presented no witnesses.
On June 27, 1980, Bald, Elliott and Slochowsky were indicted in Kings and Bronx Counties for arson and related offenses. Nine months earlier Bald had been indicted for arson in Queens County, for which he was convicted on December 11, 1980.On September 15, 1980, Bald was released on bail and approximately two weeks later Bald's attorney contacted Sudler in the Southern District to offer his client's cooperation in exchange for assistance with Bald's state indictments.
Bald met with Sudler in early October and spoke about his past participation in arson activities along with others, including Elliott and Slowchowsky. Bald also offered information concerning other criminal activities such as political corruption and securities fraud. On January 5, 1981, Bald entered into a formal cooperation agreement with the Southern District requiring Bald to plead guilty to a single count under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO"), conditioned upon concessions in Bald's favor by the Queens, Bronx and Kings Counties District Attorneys. After a series of meetings between Bald and the state prosecutors held in the Southern District, the state prosecutors refused to cooperate and Bald's agreement with the Southern District became inoperative.
At the time of Bald's release on bail in September, 1980, Bald and Slochowsky were dissolving their real estate partnership and vacating their Brooklyn office. Bald had not had any significant communications with Slochowsky or Elliott since their joint indictments in June, 1980.In the course of vacating their office, Bald retained some partnership records and others Slochowsky kept. Shortly before his meeting with Sudler, Bald learned from Slochowsky and another partner (Stanley Zahner) that Slochowsky was planning to move records to the basement of a laundromat Slochowsky owned in Queens, then under construction. Shortly after his first meeting with Sudler, Bald visited the laundromat along with Slochowsky.Bald first told F.B.I. agents in the Southern District about the storage of partnership records at this location in July or August of 1981.
In late 1980 or early 1981, Bald met with Elliott, an associated and past business partner, and obtained from him a list of thirty-eight buildings owned and burned down by Harry Rosen, who was the principal witness against Bald, Elliott and Slochowsky in the state proceedings.Bald testified that Elliott "volunteered" the list. He also testified that he had been "curious to know what buildings [Rosen] was involved in." In either event, there is no evidence that Bald obtained the list at the Southern District's behest or that the buildings listed had any relevance to the instant indictments. In February or March of 1981 Bald gave the list to the Kings County District Attorney in the course of their unsuccessful negotiations and in mid-1981 he gave the list to the Southern District.
In the spring of 1981 Sudler asked Bald whether Elliott might be willing to cooperate in exchange for assistance with Elliott's state indictments. In June of 1981 Bald told Elliott that through an intermediary he had learned that the Southern District was interested in obtaining Elliott's cooperation. F.B.I. agents, who had been working with Sudler and Bald, instructed Bald to ask Elliott about evidence he might have concerning political corruption. In response to Bald's inquiries, Elliott indicated that he did have such information but did not give any specifics. Bald did not ask, nor had he been instructed to ask, about any of the properties involves in the pending state indictments or later involved in the indictments herein.
A few days after Bald approached Elliott in June, 1981, Elliott met with Sudler and had a general discussion concerning the possibility of a cooperation agreement. Elliott's attorney thereafter spoke with Sudler but broke off further negotiations when infomred by Sudler that the Bronx and Kings Counties District Attorneys would probably not go along with any agreement struck between Elliott and the Southern District. At no time did either Bald or Sudler tell Elliott that Bald was an informant, although Sudler assumed that Elliott knew.
Despite the nullification of Bald's cooperation agreement, Bald acted as an informant under the F.B.I.'s direction, often wearing a secret transmitter or "wire" to aid primarily in the investigation of economic crimes. Bald had not worn a wire when he spoke with Elliott concerning cooperation with the Southern District.
Bald participated, along with Elliott and Slochowsky, in court proceedings in Bronx and Kings Counties on numerous occasions in 1981 and 1982. Starting in late January, 1982, the Kings County Supreme Court conducted audibility hearings in connection with tapes secretly made by another informant, Harry Rosen. Bald was present at those hearings. On March 2, 1982, after the hearings ended, Bald entered a cooperation agreement with the Kings County District Attorney and the following day Bald pleaded guilty in camera to various counts of two indictments against him in Kings County. Bald's plea was kept secret to protect his status as an informant for the Kings County District Attorney and the Southern District. Elliott and Slochowsky learned of Bald's secret plea and cooperation agreements in early July, 1982, in the course of the Bronx criminal proceeding. Between March 2, 1982 and July, 1982, Bald was under instructions from the Kings County District Attorney not to discuss pending cases with Elliott and Slochowsky.
In late October or early November of 1982, Bald's attorney contacted Sayah in the Eastern District to offer Bald's cooperation in exchange for assistance with Bald's state cases. By this time Bald had been sentenced to serve 8-1/3 to 25 years in prison by the Queens County Supreme Court, and Bald desired to remain incarcerated in a federal facility. Bald met with Sayah and described approximately forty arsons that occurred between 1976 and 1979, naming twenty individuals as participants, including Elliott and Slochowsky, along with himself. At this time the Southern District sent their files to the Eastern District. Sayah received no information or documents from the Kings County District Attorney other than copies of tape recordings made by Harry Rosen. Bald told Sayah about the partnership records stored in the basement of Slochowsky's laundromat. Because this information had come from Slochowsky and Zahner two years before and could be considered stale, Sayah had Bald place a tape-recorded telephone call to Zahner, who confirmed that the records were still being kept there. On November 18, 1982, a search warrant was executed and the partnership records of Bald and Slowchowsky were seized. Bald testified before the grand jury in the Eastern District between March and May of 1983 and the grand jury returned the indictments naming Elliott and Slochowsky on April 27 and May 25, 1983.A graphical illustration of the chronology of events is set forth in the attached appendix.
The parameters of the defendants' right to counsel as well as the contours of due process are not always clear and exact. Defendants charge that the Southern and Eastern Districts, in concert with the Kings County District Attorney, engaged in a systematic pattern of Fifth and Sixth Amendment violations by using Bald as an informant and that the indictments herein were the product of tainted information.Their Sixth Amendment claim is twofold: (1) that the government deliberately intruded into the attorney-client relationship and thereby obtained privileged information, Weatherford v. Bursey, 429 U.S. 545, 51 L. Ed. 2d 30, 97 S. Ct. 837 (1977), and (2) that the government deprived them of their right to counsel by deliberately eliciting incriminating evidence from them in the absence of counsel, Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 ...