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Over the past few months, each of the attorneys -- as well as every other attorney who has ever had anything to do with Falcon and Magluta -- has been served with subpoenas to appear before the federal grand jury or to provide documents relating to their relationship with the two drug kings.
Prosecutors are demanding that the attorneys turn over billing and payment records, notes from interviews with various witnesses from the original Falcon and Magluta case, as well as all notes and records regarding jury selection for that 1996 trial. Prosecutors have even subpoenaed records from Falcon and Magluta jury consultant Sandy Marks.
"They [prosecutors] really want Falcon and Magluta," Marks says, "and anyone involved in that case is being subpoenaed." Marks has helped select juries in some of the most high-profile cases in the nation, including the rape trial of William Kennedy Smith and the Oklahoma City bombing case. Never before, though, have his records been subpoenaed. "What can I say? I guess they're sore losers," Marks offers, referring to the Miami U.S. Attorney's Office.
Black, Krieger, and Weinberg declined to comment on the subpoenas or the ongoing investigation of Falcon and Magluta. In the past Black has derided the government's obsession by referring to it as "the case that will never end."
The attorneys themselves are not targets of the investigation, according to sources familiar with the case. Rather prosecutors are hoping the files contain evidence that can be used against Falcon and Magluta in a RICO indictment. By embroiling the attorneys in a fight for those records, and then possibly forcing them to become witnesses in a RICO case, prosecutors might block them from defending Falcon and Magluta in court.
Citing attorney-client privilege, the lawyers have refused to turn over any of the requested material. Both sides are arguing their positions through sealed pleadings and closed hearings. Eventually a judge will decide the matter.
This is not the first time prosecutors have attempted to dismantle Falcon and Magluta's courtroom dream team. Last summer they tried without success to have Black disqualified from representing Magluta on charges stemming from his arrest on the bail-jumping charge because Black's name and phone number appeared on some papers Magluta was carrying when he was caught. Black's response: "I just think they want us off the case so they have a better chance of winning."
No law has been a better friend to prosecutors than the federal Racketeer Influenced and Corrupt Organizations Act of 1970. Initially passed by Congress for the narrow purpose of prosecuting traditional organized-crime groups such as La Cosa Nostra, RICO has been greatly expanded over the past three decades. Today defendants can be convicted merely for being part of a criminal enterprise that supports itself "through a pattern of racketeering activity," even if the defendant didn't personally take part in the crimes. The purpose of the law is to catch the bosses of illegal organizations, the ones who rarely get their hands dirty.
To establish a pattern of racketeering, a prosecutor must prove the organization committed two or more illegal activities from a long list of state and federal crimes. According to the statute, these crimes, known as predicate acts, could include not only murder, kidnapping, and extortion, but even comparatively minor offenses such as copyright infringement, misuse of a visa, or transporting stolen goods over a state line.
In a RICO case against Falcon and Magluta, prosecutors could offer the jury a laundry list of predicate acts:
*Murder: Prosecutors have focused on Acosta's death, but three other killings that authorities have attempted to tie to Falcon and Magluta could each be charged as separate predicate acts
*Obstruction of justice: For allegedly tampering with the jury that heard the 1996 case
*Bribery: For the money purportedly paid to jury foreman Miguel Moya
*Retaliating against a government informant: During the course of the Acosta investigation, detectives discovered that the same people responsible for carrying out that execution also tried to kill Tony Posada, a former confidante of Falcon and Magluta who became a government witness
*Making a false statement in application and use of a passport: This charge could apply to Magluta, who was caught possessing phony passports when he was arrested in 1991 and again in 1997
Other predicate acts could be included: money laundering, wire fraud, and witness-tampering.
In order to convict Falcon and Magluta, prosecutors must first prove they were part of a criminal enterprise. Defense attorneys can be expected to argue that by acquitting Falcon and Magluta on the drug charges three years ago, a jury already decided there was no criminal organization and therefore any RICO indictment should be dismissed. But G. Robert Blakey, a professor of law at the University of Notre Dame, disagrees with that analysis. As counsel to U.S. Sen. John McClellan in 1970, Blakey was chief architect of the RICO statute. Despite Falcon and Magluta's acquittal, he asserts, prosecutors can still present evidence that their organization existed and that its purpose was criminal in nature. The 1996 acquittal, he says, doesn't mean there wasn't an organization; it just means prosecutors failed to prove the specific acts charged under that previous indictment.