United States v. Jose Orlando Lopez, United States of America v. Jose Orlando Lopez

4 F.3d 1455 UNITED STATES of America, Plaintiff-Appellant, v. Jose Orlando LOPEZ, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Jose Orlando LOPEZ, Defendant-Appellee. Nos. 91-10274, 91-10393. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 12, 1992. Decided March 17, 1993. As Amended Sept. 22, 1993. Motion to Strike, Correct or Amend Denied Sept. 22, 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 Attys. for Crim. 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 Office of the CA State Public Defender. John T. Philipsborn, San Francisco, CA, for amicus curiae CA Attys. for Crim. Justice. 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…

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 *1465…

I.

Jose Lopez was indicted for conspiracy to distribute and distribution of cocaine and heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1), and for aiding and abetting in violation of 18 U.S.C. § 2 . While awaiting trial, Lopez was detained with a codefendant, 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 ease, 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 Plea-santon. 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 Escobedo’s interest in a possible…