Sunday, May 16, 2010
Defense lawyers are claiming the rights of 12 men charged with plotting the violent overthrow of the communist regime in Laos were trampled when federal agents illegally tapped the telephones of two defendants.
In a motion filed late Friday, the lawyers are asking the judge to rule out as evidence the fruits of the electronic surveillance. In the alternative, they want an evidentiary hearing under Franks v. Delaware, the seminal 1978 U.S. Supreme Court decision that sets out the criteria for court-authorized wiretaps.
At such a hearing, the lawyers would want to question under oath an undercover firearms agent and an assistant U.S. attorney who carried out and supervised the operation.
The judge who authorized the taps was badly misled by supporting affidavits as to the propriety of the intercepts, the motion alleges.
During most of the spring of 2007, there was a court-authorized tap on the phone in the Woodland home of Harrison Jack, a retired Army lieutenant colonel accused in the indictment of being a key player in the plan to topple the Laotian government.
For part of that same period, there was a court-authorized tap on the cellular phone of Lo Cha Thao, who has been portrayed in court papers as a wheeler-dealer and shameless self-promoter in the Hmong American community.
Jack and Thao are easily the most vulnerable of the defendants because of the hundreds of hours of their conversations that were captured by phone intercepts or a body wire worn by the undercover agent posing as an arms merchant hawking his wares to the alleged conspirators. The remaining 10 defendants are Hmong American with varying degrees of vulnerability.
Affidavits filed with the judge in support of the wiretaps "were rife with inaccuracies, misstatements, and material omissions that fundamentally mischaracterized the facts and status of the investigation," the motion declares. The affidavits "further lacked the requisites showing that wiretaps were necessary," it adds.
In addition, the motion says, federal authorities failed to properly minimize the intrusions as promised in the affidavits and required by law.