BARRY J. PORTMAN

Federal Public Defender

JOHN PAUL REICHMUTH

Assistant Federal Public Defender

160 West Santa Clara Street, #575

San Jose, California  95113

Telephone: (408) 291-7753

 

Counsel for Defendant XXX XXX XXXXX

 

 

 

 

 

IN THE UNITED STATES DISTRICT COURT

 

FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

 

UNITED STATES OF AMERICA,

                                                Plaintiff,

v.

XXX XXX XXXXX,

 

                                           Defendant.

 

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No. CR 00-0000 ABC

 

DECLARATION OF

MICHAEL LEVINE

 

 

 

 

 

 

I, MICHAEL LEVINE, state and declare as follows:

1.         I have been court-qualified as an expert in criminal matters involving local, federal and international informant handling, informant entrapment, undercover tactics and investigative procedures related to law enforcement since 1971.  I served as a Federal law enforcement officer for twenty-five years, during which time I was charged with the direct responsibility for the recruitment,  management and reporting related to in excess of three thousand criminal informants.

2.         I served as a DEA supervisor for seventeen years.  During this time I was charged with both the management of my own criminal informants of every category, as well as the informant management practices of the hundreds of officers (DEA, FBI, Customs, BATF, state and local police officers of various departments) who served under my command. Based on my training and


experience I have been accepted as an expert witness during my career as a federal agent in the following United States District Courts: Eastern District of New York, Southern District of New York, Southern District of Miami, and the U.S. District courts in San Juan, Puerto Rico; Tucson, Arizona; Buffalo, New York; Albany, New York; and San Diego, California.  Since my retirement in 1989, I have testified as an expert witness in the U.S. District Courts in Lincoln, Nebraska; San Antonio, Texas; San Diego, California; and Tucson, Arizona.  My resume is attached hereto as Exhibit AA@.    

3.         I was retained by the Office of the Federal Public Defender for the Northern District of California, to review the discovery materials in this case pertaining to the government=s use and handling of informants in the above captioned case.    

4.         A critical facet of informant management is to ensure, by close and stringent supervision, that information furnished by criminal informants is not only properly and professionally obtained, but also properly and thoroughly corroborated by all investigative techniques and means  available to law enforcement.  Furthermore, the management of said informants must be carried out in accord with acceptable law enforcement norms, agency regulations and SOPS, and state and federal law.

5.         The primary purpose of informant control and management supervision is to ensure that the  agent and officer are managing their criminal informants in a manner that eliminates opportunities for their criminal informants to:

‚         entrap individuals into violating the law as settlement of cooperation agreements

‚         give false testimony

‚         use their informant status as a shield to violate the law   

‚         pose as law enforcement officers                                                                                  

6.         Due to my expertise and performance as a supervisor, I received a three and-a-half year assignment as an Operations Inspector, wherein my duties were to review all field enforcement operations for the DEA Divisional offices world-wide, which included a review of informant management practices.  The evaluation rating I received for DEA headquarters for this service was the highest obtainable.  Due to my experience and record and the recognized need by law enforcement


for specialized training in Informant Handling and Management Practices, I was assigned as an instructor of this subject in DEA=s seminars for police training.  I am still active as a police instructor in these subjects in both the United States and Canada.

7.         I  have thoroughly reviewed all of the discovery materials submitted to me in the above captioned case.  Had I been called to testify in this case, my testimony would have been that,  had I reviewed this same set of facts as a Justice Department supervisor, I would have stopped the investigation before it reached prosecutorial hands. 

8.         The reason for strict controls on informants is to ensure that innocent people are not induced to commit crimes.  Informants have powerful incentives to put together cases for the government.  The indicators of entrapment in this case are overwhelming for the following reasons:

‚         Mr. Leonti, the first informant to target Mr. XXXX, faced a twenty year prison term.  The only to shorten his term was to produce other drug dealers for the government to prosecute in order to barter for his freedom.  He failed for more than one year to produce any other drug dealers for the government even though he had been a high level narcotics trafficker for over a decade.  

‚         The California Department of Justice Bureau of Narcotics Enforcement finally gave up on him as a CI, since his activities had not even produced the hope of a prosecution case.  Ms. Seremitar, the attractive girl friend of Leonti, then entered the case.  It should be noted that the DEA Manual makes no provisions in its sections devoted to the recruitment of defendants and/or criminal informants, for the Apassing on of credit@ from one CI to another.  

‚         According to Ms. Seremitar, after Leonti was incarcerated, she decided to see if she could take over for Leonti.  Seremitar, who was not cooperating with the government at the time, thought the government might consider giving Leonti a sentence reduction if she cooperated with the government for Leonti=s benefit.  Initially, Ms. Seremitar, without the government's approval, contacted defendant XXXX to see if he would deal with her.

‚         As a twenty-five year veteran federal agent and supervisor, with experience in many thousands of cases brought to me by every kind of informant imaginable, I have never

been confronted with a drug case brought to me by a CI who Adecided@ to commit a        felony Ain hopes@ of getting a sentence reduction for a third party, unless some deal had                  been made beforehand.  I find the scenario extraordinary, unbelievable, and disturbing.

‚         The informant handling in this case was not acceptable. The use of sexual innuendo and illegal and unauthorized currency displays are direct violations of the Confidential Source Agreement.  Seremitar even goes so far as to involve Leonti=s mother to provide the monies (with Mrs. Leonti=s knowledge and approval) for unauthorized narcotics transactions, namely currency displays.  Seremitar=s own words  regarding the cash flash were  captured by routine Bureau of Prisons telephone monitoring: AI=m manipulating here.  I=m not getting everybody=s permission and if this comes out later on... that=s not my problem.@ 

‚         This case is one of the worst examples of informant control by a supervising agent I have ever seen.  Through further defense investigations evidence has come to light  that Ms. Seremitar has committed money laundering, made false statements on multiple loan applications, helped Mr. Leonti avoid court ordered child support, helped Mr. Leonti obtain multiple fraudulent bank loans, helped Mr. Leonti violate his court ordered conditions of pretrial release, helped Mr. Leonti day trade stocks while in the custody of the Bureau of Prisons and possibly changed price tags on expensive home furnishings (burglary and grand theft).  The fact this conduct occurred while she was working under government supervision is unconscionable.  This information, and the supporting documentation, has been turned over to the Government.    

‚         There is too much evidence indicating the Confidential Informants in this matter had a position of power over Mr. XXXX by virtue of being his employers and influencing his economic ability to support his family.  The informants had the  motive, intention and leeway to entrap Mr. XXXX.     


9.  In conclusion, I would never have taken the case against XXX XXX XXXXX to the United States Attorney for prosecution.  This case would never have been forwarded to an attorney by myself or the operational inspector because it is blatant entrapment.  Furthermore, I would have recommended the prosecution of both Mr. Leonti and Ms. Seremitar for the crimes they committed while ostensibly working for the United States Government.

10.  Should the Court have any questions, or wish to speak with me further, please feel free to call me at 914-687-9642.

 

 

I declare under penalty of perjury that the foregoing is true and correct except as to those matters stated on information and belief and, as to those matters, I believe them to be true.

Executed this      day of October, 2000, in Stone Ridge, New York.

 

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MICHAEL LEVINE