United States v. Jose Orlando Lopez, (Two Cases)

989 F.2d 1032 61 USLW 2565 UNITED STATES of America, Plaintiff-Appellant, v. Jose Orlando LOPEZ, Defendant-Appellee. (Two Cases) Nos. 91-10274, 91-10393. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 12, 1992. Decided March 17, 1993. Joseph Douglas Wilson and F. Dennis Saylor, IV, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellant. William L. Osterhoudt, San Francisco, CA, for defendant-appellee. Kevin M. Kelly, Las Vegas, NV, for amicus curiae Nevada Attorneys for Criminal Justice. Walter Barthold and Charles Stillman, New York City, for amicus curiae American College of Trial Lawyers. Philip M. Brooks, Deputy State Public Defender, San Francisco, CA, for amicus curiae California Attorneys for Criminal Justice and Office of the California State Public Defender. Appeal from the United States District Court for the Northern District of California. Before FLETCHER, POOLE, and T.G. NELSON, Circuit Judges. POOLE, Circuit Judge: I. 1 Jose Lopez was indicted for conspiracy to distribute and distribution of cocaine and heroin in violation of 21 U.S.C. §§ 846 & 841(a)(1), and for aiding and abetting in violation of 18 U.S.C. § 2 .…

concurring:

At issue in this case is the conduct of the government. Because it does not seem to me that the story began or ended with the prosecutor’s misbehavior, I feel compelled to say a few words about the actions of Mr. Tarlow, Mr. Twitty, and the magistrate judge.

Tarlow told Lopez at the outset of the representation that it was his “general policy” not to represent clients in plea negotiations that contemplate cooperation with the government. United States v. Lopez, 765 F.Supp. 1433, 1438-39 (N.D.Cal.1991). In a declaration submitted to the district court, Tarlow elaborated that he considers such negotiations “personally morally and ethically offensive,” and that, while he would have conveyed an offer of cooperation to Lopez, “another attorney would be willing and better able to arrange his informant activities.” Id. at 1440 n. 12. Although Tarlow apparently did not say so explicitly, Lopez took Tarlow’s policy statement to mean that if Lopez wanted to negotiate, Tarlow would withdraw from representing him altogether. See id. at 1439-40 .

Concerned about the welfare of his children because he thought his wife might not be caring for them properly, Lopez decided that he…

I.

Jose Lopez was indicted for conspiracy to distribute and distribution of cocaine and heroin in violation of 21 U.S.C. §§ 846 & 841(a)(1), and for aiding and abetting in violation of 18 U.S.C. § 2 . While awaiting trial, Lopez was detained with a codefend-ant, Antonio Escobedo, at the Federal Correctional Institution at Pleasanton.

Lopez retained attorney Barry Tarlow to represent him. Tarlow informed Lopez that he believed that the defendants had a viable entrapment defense and that, in any case, it was his general policy not to negotiate a plea with the government in exchange for cooperation.

Attorney James A. Twitty, who represented codefendant Escobedo, had agreed with Tarlow to coordinate a joint investigation on behalf of the defendants. In so doing, he often spoke to both Escobedo and Lopez by telephone and in person during visits to Pleasanton. In March or April of 1990, Escobedo telephoned Twitty and expressed his interest in reopening negotiations with the government. Concerned about his children, who he feared were being abused while in the custody of their mother, Lopez was anxious to be released from Pleasanton and thus echoed Escobe-do’s interest in a possible…