United States District Court, W.D. Washington, Tacoma
FINDINGS OF FACT AND CONCLUSIONS OF LAW
B. LEIGHTON UNITED STATES DISTRICT JUDGE.
MATTER having come before this Court on March 8, 2018, and
the Court having heard the testimony of the witnesses
presented by the parties, having reviewed the exhibits,
briefing and record, and having heard argument of counsel
NOW, THEREFORE, the Court makes the following
FINDINGS OF FACT
Petitioner has had five attorneys to Dated: Colin Fieman,
from September 23, 2010 to July 14, 2011; Roger Hunko, from
July 14, 2011, to April 19, 2012; Bob Leen, from April 4,
2012 to March 1, 2013; Brooks Holland, March 2013 to December
24, 2015; Tim Lohraff to present. Dkt (CR10-5629)
Attorney Robert Leen's education and
Robert Leen received his J.D. from the University of Georgia
in 1973. Habeas Tr. at 84.
Leen work as an assistant state attorney for the
11th Judicial Circuit in Miami, Dade County,
Florida from 1974 to 1976. Habeas Tr. at 84.
Since that time, Mr. Leen has been in private practice in
Broward County, Florida and the Western District of
Washington. Habeas Tr. at 84.
1976 to 1986, Mr. Leen handled state criminal defense and
some divorce work and a smattering of other types of cases.
Habeas Tr. at 84.
1986 to the early 1990s, Mr. Leen handled state criminal
defense in the State of Washington. Habeas Tr. at 84.
the early 1990s until 2015, Mr. Leen did mostly federal
criminal defense. Habeas Tr. at 84.
the time Mr. Leen accepted Mr. Valle's case, Mr. Leen had
been an attorney for about 30 years and had defended cases in
federal court for about 20 years. Habeas Tr. at 85.
Mr. Leen's work on Petitioner's
Leen took the case over from Attorney Roger Hunko in April
2012 when Mr. Hunko withdrew. Habeas Tr. at 85-86.
Leen's practice when getting every new case, was to
review the docket on-line, and to review and print a copy of
the indictment, the complaints, and any motions. Habeas Tr.
Leen would review the discovery and then go to visit the
defendant at the Federal Detention Center. Habeas Tr. at 86.
Leen received a set of discovery from both Mr. Hunko and the
U.S. Attorney's Office. Habeas Tr. at 87.
Leen recalled receiving voluminous discovery from the
government. Habeas Tr. at 87.
government had already provided Mr. Hunko access to the
Petitioner's FBI CHS file around November 2011, so copies
of documents from FBI CHS file were included in the packet
that Mr. Leen received. Habeas Tr. at 88; Government's
Exhibit 2, Habeas Hearing.
Leen also looked at the Petitioner's FBI CHS file and he
marked the pages that he wanted copies of in the file. Habeas
Tr. at 89.
government provided those copies to Mr. Leen. Habeas Tr. at
Leen did not independently recall the discovery conference in
the case but he remembered that it was the practice of the
Tacoma Branch U.S. Attorney's Office to have discovery
conferences at the Tacoma DEA. Habeas Tr. at 90.
Leen visited Petitioner on a regular basis; he usually
visited his clients at once every week to ten days. Habeas
Tr. at 91.
Leen filed motions to suppress Petitioner's statement to
law enforcement agents and to suppress the large amount of
drugs seized from the defendant. Habeas Tr. at 91.
Petitioner's Issue One
Leen reviewed the Petitioner FBI CHS informant file and made
copies of whatever he felt was pertinent to Petitioner's
public authority defense. Habeas Tr. at 92-93.
Leen discussed the public authority defense and duress with
Petitioner. Habeas Tr. at 93.
Petitioner grew more upset as the case got closer to trial.
Habeas Tr. at 92.
Leen filed a motion to withdraw. Habeas Tr. at 92 24. The
Court held a hearing and found that the attorney-client
relationship was not irretrievably broken and denied the
motion. Habeas Tr. at 92.
Petitioner's Issues 2-3
Leen offered in evidence at trial defense exhibit 101, which
contains Petitioner's FBI CHS admonishments. Habeas Tr.
at 94; Defendant's trial exhibit 101.
Leen cross examined the case agent about this form at trial
to try to establish Petitioner's public authority
defense. Habeas Tr. at 94.
Leen also offered in evidence defense trial exhibit 103,
which was an FBI internal request for authorization to allow
Petitioner to attend cock fights if invited. Habeas Tr. at
96; Defendant's trial exhibit 103.
case agent did not tell Petitioner that he had requested
permission to allow Petitioner to attend cock fights and
Petitioner did not attend any cock fights as an informant for
Leen asked a federally certified interpreter, Glenna White,
to translate the Petitioner's statement, which Petitioner
had given in Spanish. Habeas Tr. at 97.
government agreed to using the Petitioner's translation
instead of the government's translation. Habeas Tr. at
Leen moved to suppress this statement. Habeas Tr. at 98.
Leen cross examined the agents about the circumstances of how
the statement was obtained. Habeas Tr. at 98.
Petitioner's Issue Four
Leen learned about the pole camera and tracker from discovery
from the government. Habeas Tr. at 98.
Leen typically asked if the government intended to offer film
from the pole camera which Mr. Leen knew would take tens or
dozens of hours to review. Habeas Tr. at 98.
Since the government was not offering the pole camera film at
trial, Mr. Leen did not pursue anything further with respect
to the pole camera evidence. Habeas Tr. at 98.
Leen was aware of the tracking device and did not feel it was
necessary to file motions regarding the tracking device.
Habeas Tr. at 99.
Leen was aware that at the time 9th Circuit law
allowed police to place trackers on a car without a court
order. Habeas Tr. at 99.
Leen recalled subpoenaing Officer Danny Valadez from Arizona
to testify. Habeas Tr. at 99.
government agreed to produce Officer Valadez for the
Petitioner to call him as a witness. Habeas Tr. at 99.
Leen questioned Officer Valadez about the tracker warrant and
offered the tracker (search) warrant in evidence.
Defendant's exhibits 168A & B.
Petitioner's Issue Five
Leen cross examined Special Agent Britton Boyd about
Petitioner parole visa and his travel to Mexico because this
was a benefit that Petitioner received as an informant.
Habeas Tr. at 100.
Leen included on his exhibit list confidential human source
reporting documents 108-141, FBI 302s 142-147, DEA 6s
154-159, and ATF reports 162-163, and Phoenix PD surveillance
reports 162 and 163. Habeas Tr. at 101. Dkt 129 (Defense
Leen made copies of the police reports and marked them as
defense exhibits for two reasons: as they might be relevant
at trial and Mr. Leen wanted to give copies of the police
reports to Petitioner.
Leen moved to suppress the Petitioner's statement to the
agents and therefore necessarily raised the issue as to
whether Petitioner was in custody and ...