UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA )

)
v. ) Criminal No.: H-92-152 (filed
) 10/28/92)
)
JOHN J. JOHNSON, ) Violations:
) 15 U.S.C. § 1
Defendant. ) 18 U.S.C. § 1001
) 18 U.S.C. § 2(b)
) 18 U.S.C. § 371

GOVERNMENT'S RESPONSE TO DEFENDANT'S

MOTION FOR DISMISSAL OF THE INDICTMENT

The United States of America, through its undersigned

attorneys, hereby responds to the Defendant's Motion for
Dismissal of the Indictment (hereinafter Defendant's Motion).

The defendant argues that the government interfered with his

relationship with his attorney through pre-indictment consen-
sual recording of his conversations with a co-conspirator, and
thereby violated his Fifth Amendment right to due process of law.
The defendant also contends that the government has shown a
pattern of misconduct that warrants dismissal of the indictment.

Defendant's motion is completely meritless. The

consensual recording in this case was a legitimate investiga-
tive technique clearly authorized by law, which in no way
violated by the defendant's constitutional rights. In addi-

1
tion, the defendant has failed to demonstrate either a pattern of
government misconduct or actual prejudice to his case because of
the government's actions here. Consequently, dismissal of the

indictment is inappropriate and unwarranted.

FACTUAL BACKGROUND

As evidenced by the attached affidavits of James Maurice

Johnson, Special Agent Gerald Burkhalter, and Duncan S. Currie,
the defendant mischaracterizes the basic facts sur-
rounding the consensual recording of his telephone conversa-
tions and erroneously attributes improper motivations to actions
taken by government counsel in the course of the government's
investigation.

From mid-1990 through April 1991, James Maurice Johnson

(hereinafter "Maurice"), one of the defendant's co-conspirators,
received numerous telephone calls from the defendant. M. Johnson
aff. p. 2. On March 20, 1991, as part of a plea agreement,
Maurice informed the government of recent attempts by the
defendant to contact him, and, after consulting with counsel,

agreed to return the defendant's telephone call and cooperate

with the government in recording this and a later return call.
Id. at 3. (The government's transcriptions of these

conversations are attached to its Response to Defendant's Motion

to File Documents Under Seal, filed herewith, and identified as
Ex. 1 and 2, respectively.) At all relevant times, the defendant

was represented by counsel, and was clearly

2
aware that Maurice was cooperating in the government's criminal
investigation. The recording occurred in a pre-indictment phase
of the government's investigation.

I
THE GOVERNMENT UTILIZED LEGITIMATE INVESTIGATIVE
TECHNIQUES CLEARLY AUTHORIZED BY LAW

The consensual recording of the two telephone conversa-

tions between Maurice and the defendant was a legitimate inves-
tigative technique clearly authorized by law and in no way vio-
lative of DR 7-104(A)(1). See United States v. Ryans, 903 F.2d
731, 740 (10th Cir.), cert. denied, U.S. , 111 S.Ct. 152

(1990) (holding that DR 7-104(A)(1)'s proscriptions do not attach

during the investigative process); United States v. Hammad, 858
F.2d 834, 839 (2d Cir. 1988) (prosecutor is author-

ized by law to employ legitimate investigative techniques in

conducting or supervising criminal investigations, and the use of
informants to gather information against a subject frequent-

ly falls within this authorization); United States v. Sutton, 801

F.2d 1346, 1366 (D.C. Cir. 1986) (DR 7-104(A)(1) does not
preclude the tape recording of unindicted subjects during under-

cover investigations merely because they have retained coun-

sel); United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.),
cert. denied, 464 U.S. 852 (1983) (pre-indictment use of

informant to tape record information against represented sus-

pect did not violate DR 7-104(A)(1)); United States v. Kenny, 645
F.2d 1323, 1339 (9th Cir.), cert. denied, 452 U.S. 920

3
(1981) (government's use of investigative techniques such as
consensual recording does not implicate the types of ethical
problems addressed by the Code); United States v. Lemonakis, 485
F.2d 941, 955 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974)
(use of informant to initiate and record conversations with
defendant prior to arrest or indictment does not violate

disciplinary rules).
The consensual recording of the two conversations was
clearly authorized by law: the conversations were recorded
fifteen months prior to the defendant's indictment; Maurice
consented to the monitoring of the calls; both calls were made in
response to attempts by the defendant to contact Maurice; and

Special Agent Burkhalter monitored Maurice's side of both

conversations. In addition, Maurice elicited evidence perti-
nent to the bid rigging conspiracy as directed. Therefore, no

legal or ethical requirements were transgressed in the creation

of these tapes, and they stand as legitimate evidence in this
case.

II
THE DEFENDANT'S CONSTITUTIONAL RIGHTS
HAVE NOT BEEN VIOLATED

Defendant contends that dismissal of the indictment is

the appropriate remedy in this case because the government,
through the consensual recording, attempted to interfere in his

relationship with his attorney, thus violating his Fifth

4
Amendment due process rights. Defendant's Motion at 10. The
standard for dismissal of an indictment is extremely high. "To
constitute a constitutional violation the law enforcement

technique must be so outrageous that it is fundamentally unfair

and shocking to the universal sense of justice mandated by the
Due Process Clause of the Fifth Amendment". United States v.
Ofshe, 817 F.2d 1508, 1516 (11th Cir.), cert. denied, 484 U.S.
963 (1987), citing United States v. Russell, 411 U.S. 423, 432,
93 S.Ct. 1637, 1643 (1973). The government conduct in this case
never remotely approached this standard.
As reflected in the attached affidavits, the discus-
sions in the tapes regarding the defendant and his attorney were

never solicited or approved by the government. The govern-

ment never instructed Maurice to question the defendant about his
relationship with his attorney or communications between them.
M. Johnson aff. at 4; D. Currie aff. at 2-3; G. Burkhal-
ter aff. at 3-4. Indeed, the government repeatedly told him to
avoid this subject area. M. Johnson aff. at 4; D. Currie aff. at

2; G. Burkhalter aff. at 2,3. Nor did the government ever direct

or encourage Maurice to advise the defendant to get a different
attorney, or to tell him he was receiving bad advice from his

attorney. M. Johnson aff. at 4; D. Currie aff. at 2-3; G.

Burkhalter aff. at 3-4. In fact, Maurice never heard the
government even criticize the defendant's attorney or his advice.

M. Johnson aff. at 4. Finally, the government never

5
directed or encouraged Maurice to persuade the defendant to
cooperate with the government's investigation. M. Johnson aff.
at 4; D. Currie aff. at 3; G. Burkhalter aff. at 4. The

encouragement Maurice gave the defendant to cooperate was

strictly his own personal advice, based on his own experience.
M. Johnson at 3, 5.
To be properly understood, Maurice's advice to the
defendant during the taped conversations must be considered in
context. The defendant knew that Maurice had entered into a plea

agreement and was cooperating with the government's criminal

investigation, and contacted Maurice on at least six occasions
prior to the taping to elicit information about the extent of his

cooperation and the progress of the investiga-

tion. Id. at 2. Also in these earlier discussions, the defen-
dant inquired about Maurice's relationship with his attorney, and

asked Maurice for advice about his own situation. Id. at 3.

During each of these earlier conversations, which were unknown to
the government at the time, Maurice repeatedly gave the defendant

the same advice as he did in the later taped conversations. Id.

That advice was based on his own experi-
ence and consistently motivated by his concern for the defen-

dant as a friend. Id. at 3, 5. Thus, Maurice's advice to the

defendant to cooperate with the government was the same counsel
he had been giving the defendant throughout a series of discus-

sions on this topic. Id. at 5.

6
 Although unaware of their previous conversations, the
government nonetheless gave the appropriate instructions to
Maurice to avoid discussions related to attorney communica-

tions, and consistently and actively directed Maurice away from

this subject matter when it arose during the taping. D. Currie
aff. at 2; G. Burkhalter aff. at 2, 3; M. Johnson aff. at 4.
However, the defendant repeatedly steered the conversation back
to this topic. See, e.g., J. Johnson-M. Johnson tel. tr.,
3/20/91, pp. 6, 13, 41, 42, 46, 47; J. Johnson-M. Johnson tel.
tr., 4/17/91, pp. 6, 7-8, 10, 11, 12. Rather than terminate the
conversation altogether and thus lose the opportunity to collect
evidence about the bid-rigging conspiracy, Maurice responded with

the same personal advice he had given previ-

ously. M. Johnson aff. at 6. The government cannot be respon-
sible for all actions taken by its cooperating witnesses. See

United States v. Ryan, 548 F.2d 782, 791 (9th Cir. 1976) (holding
that there was no due process violation where a govern-
ment informant acting independently from the government urged an

attorney to withdraw from his representation of a defen-

dant). See also United States v. Simpson, 813 F.2d 1462, 1467
(9th Cir.), cert. denied, 484 U.S. 898 (1987); United States v.

Prairie, 572 F.2d 1316, 1319 (9th Cir. 1978). It should also be
noted that on one occasion, when the defendant attempted to bring
his attorney into the telephone conversation with Maurice, the

government terminated Maurice's call. G. Burkhal-

7
ter aff. at 3; M. Johnson aff. at 6. See also J. Johnson-M.
Johnson tel. tr., 4/17/91, at 12.
The facts in this case show no "outrageous government

conduct" whatsoever. The actions taken by the government, in

creating the consensually-recorded tapes, in instructing Maurice
on the appropriate subject matter to discuss and to avoid, and in
actively warning him away from potentially inappropriate subject
matter as it arose during the actual discussions with the
defendant, were all lawful, responsible and appropriate. It was

the defendant who injected into the conversation his concerns

about his legal representation and cooperation with the
government. Maurice's responses were strictly personal and

cannot be attributed to the government. Therefore, the

defendant's constitutional rights were in no way violated by the
government. As in Ryans, "any perceived threat to the integrity

of the attorney-client relationship is out-

weighed here by the government's interest in effective law
enforcement." 903 F.2d at 740.

III
THERE IS NO PATTERN OF GOVERNMENT
MISCONDUCT IN THESE PROCEEDINGS

The defendant argues that the Court should use its

supervisory powers to dismiss the indictment in this case because
the government is responsible for a pattern of unethi-

cal conduct throughout both the criminal and related civil

8
proceedings. Defendant's Motion at 13. However, these super-
visory powers allow the district court "to impose the extreme
sanction of dismissal with prejudice only in extreme circum-

stances." United States v. Campagnulo, 592 F.2d 852, 865 (5th

Cir. 1979). To warrant dismissal of an indictment on this basis,
the defendant must show the prosecutorial misconduct is a

long-standing or common problem in the district, and actual

prejudice resulting therefrom. United States v. Griffith, 756
F.2d 1244, 1249 (6th Cir. 1985). No such pattern exists here.
In an attempt to demonstrate a pattern of ethical
misconduct, the defendant manufactures an argument based on other
actions taken by the government in this investigation to protect

the grand jury investigation and the record in this case, and to
validly and lawfully represent its interests. In so doing, the
defendant equates conscientious representation with prosecutorial
misconduct. That equation is both falla-
cious and irresponsible. Accusations of misconduct should not be
waged so casually by those who practice and exalt mankind's

"noblest and most beneficial" profession.

Defendant argues that the facts of the present case are
"more egregious" than in three other cases, citing the Lopez

case, United States v. Marshank, 777 F.Supp. 1507 (N.D. Cal.

1991), and United States v. Smith, Criminal No. F-9938-88 (S.C.D.
1989). Defendant's Motion at 22. In fact, each of these cases
is easily distinguishable from the present one

9
and provide no support for his argument.
Lopez was a post-indictment case involving repeated
direct and intentional contacts from the government to the
defendant. The court found that these contacts deprived the
defendant of his chosen counsel, and therefore dismissed the
indictment under its supervisory powers. 765 F. Supp. at 1456,

1464. In the present case, the contacts were pre-indictment and

part of an ongoing investigation; government personnel had no
direct contact with the defendant; and the defendant has never
been deprived of counsel.
The Smith case is equally inapposite, because it also
involved post-indictment direct contacts.

The Marshank case, on which defendant places so much

reliance, bears no resemblance whatsoever to the instant case.
In Marshank, a pre- and post-indictment case, the government

allegedly conspired with the defendant's own attorney to build a

case against him and secure his indictment. The court found
that, but for the unethical acts of defense counsel and the

government in that case, the defendant would not have been

indicted.
By contrast in the present case, first and foremost,
there has never been any collaboration between defense counsel
and the government against his client. Second, unlike the
government's agent in Marshank, Maurice was repeatedly warned to

avoid attorney-related discussions with the defendant. Third,

10
the tapes in question were never used to secure an indictment
against the defendant and were never needed for that purpose.
Finally, instead of concealing or ignoring possible conflicts of

interest in connection with the defendant's attorney-client

relationship, here the government, following the procedures
outlined in United States v. Garcia, 517 F.2d 272, 276-277 (5th
Cir. 1975), took every reasonable action to ensure that possible
conflicts were ascertained and brought to the court's attention
through its Motion for a Pretrial Hearing to Resolve Potential
Conflicts of Interest, filed July 23, 1992 (hereinafter, "Garcia
Motion"). This court obviously determined that a record should
be made on this issue during the hearing held August 26, 1992.

It is ironic that the defendant cites Marshank to criticize the

government for doing in this case exactly what the Marshank court
condemned the government for not doing in that case.

In this same regard, the government strenuously objects

to the defendant's claim that it was attempting to create a
conflict between the defendant and his counsel in this case

through the consensually-recorded conversations. The government

was concerned by the defendant's statements on these tapes
indicating that his attorney was trying to protect the interests
of his employers, Tom Glazier and Glazier Foods Company. J.
Johnson-M. Johnson tel. tr., 4/17/91, p. 11. As a result,
government counsel was prompted to question (1) which attorneys

represented which clients connected with Glazier; and (2) what

11
potential conflicts might be presented by that representation.
The factual concerns underlying the govern-
ment's subsequent actions are set out in detail in the afore-

mentioned government's Garcia Motion at 2-4, and need not be

repeated here.

IV
DEFENDANT HAS SHOWN NO ACTUAL PREJUDICE
AND THEREFORE DISMISSAL OF THE INDICTMENT IS UNWARRANTED.

Because dismissal of an indictment is an extreme remedy,

a defendant seeking such a dismissal on either constitutional or

ethical grounds must prove actual prejudice to his ability to
receive a fair trial. United States v. Morrison, 449 U.S. 361,

365-366, 101 S.Ct. 665, reh. denied, 450 U.S. 960 (1981). See
also United States v. Weeks, 919 F.2d 248, 254 (5th Cir. 1990);
Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108

S.Ct. 2369, 2374 (1988); United States v. McKenzie, 678 F.2d 629,
631 (5th Cir.), cert. denied, 459 U.S. 1038 (1982); United States
v. Acosta, 526 F.2d 670 (5th Cir.), cert. denied, 426 U.S. 920

(1976). Prosecutorial miscon-

duct, no matter how egregious, does not provide grounds for
dismissing an indictment without a showing of actual preju-

dice. United States v. Merlino, 595 F.2d 1016, 1018 (5th Cir.
1979). Further, even in cases where it is determined that the
government deliberately obtained information in violation of a

defendant's Fourth, Fifth or Sixth Amendment rights, the remedy

12
imposed is not dismissal of the indictment but suppression of
evidence. See Morrison, 449 U.S. at 365-366, 101 S.Ct. at 668;
United States v. Fortna, 796 F.2d 724, 732 (5th Cir. 1986).

Lesser, more narrowly tailored remedies are likewise preferred

over dismissal where unethical conduct has been charged. See,
e.g., Bank of Nova Scotia, 487 U.S. at 255; 108 S.Ct. at 2374.
As evidenced in the above-cited cases, courts have
routinely refused to dismiss indictments for want of actual
prejudice. The United States Supreme Court in the Morrison case

articulated the public interest underlying this policy:

So drastic a step [as dismissal] might
advance marginally some of the ends served
by exclusionary rules, but it would also
increase to an intolerable degree inter-
ference with the public interest in having
the guilty brought to book.

449 U.S. at 366 n.3; 101 S.Ct. 668 n.3, quoting United States v.
Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419 (1966).
In this case, the defendant has presented no facts to

show government misconduct or to demonstrate that he has been

prejudiced in any way. Rather, he contends that the govern-
ment's conduct caused him to question whether his attorney was

looking out for his best interests, and has hampered his abil-
ity to assist his counsel in preparing his defense. This argu-
ment ignores the fact that defendant's concerns about his legal

representation began prior to the consensual recording and do not

derive from it. Moreover, the defendant demonstrated his
confidence in present counsel by continuing to retain him until

13
January 1992, when he was spun off to now Judge John Ackerman,
and by then rehiring Mr. Androphy when Mr. Ackerman assumed the
bench in early July 1992. See United States v. Irwin, 612 F.2d

1182 (9th Cir. 1980).

CONCLUSION

The consensual recording of the defendant's conversa-

tions was a legitimate investigative technique clearly author-

ized by law and in no way violative of DR 7-104(A)(1) or of the
defendant's constitutional rights. Moreover, defendant has
failed to demonstrate a pattern of government misconduct to
justify exercise of the court's supervisory authority. Final-
ly, he has suffered no actual prejudice from the consensual

recording. Accordingly, dismissal of the indictment is inappro-

priate and unwarranted in this case.

Respectfully submitted,

"/S/"
JANE E. PHILLIPS

"/S/"
JOAN E. MARSHALL

"/S/"

MARK R. ROSMAN
Attorneys
Department of Justice
Antitrust Division
1100 Commerce Street, Room 8C6
Dallas, Texas 75242-0898
(214) 767-8051

14
 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

Government's Response to Defendant's Motion for
Dismissal of the Indictment and proposed order has been
served upon and was sent via Federal Express this
day of October, 1992, to:

Joel M. Androphy, Esq.

Berg & Androphy
3704 Travis Street
Houston, Texas 77002
"/S/"
JANE E. PHILLIPS
Attorney

15
 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

UNITED STATES OF AMERICA ) Criminal No.:

H-92-152
)
v. )
) Violations:
JOHN J. JOHNSON, ) 15 U.S.C. § 1
) 18 U.S.C. § 1001
) 18 U.S.C. § 2(b)
Defendant. ) 18 U.S.C. § 371

ORDER
Upon consideration of the Defendant's Motion for
Dismissal of the Indictment and the Government's Response,

The Defendant's Motion is hereby DENIED.

DONE AND ENTERED THIS this day of
,

1992.

UNITED STATES DISTRICT JUDGE

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