Controversy Still Lingers as DeMassa Trial Readied

The drug conspiracy trial of San Diego attorney Philip DeMassa is scheduled to begin this week in federal court and, as it always has, controversy clouds the case.

DeMassa, a well-known attorney who has represented drug defendants and members of the Hells Angels, is charged with conspiring with members of the “Coronado Company” drug ring to import marijuana into the United States. DeMassa was implicated in the conspiracy by Louis Villar, a former high school Spanish teacher.

At one time, Villar, the ring’s mastermind, was DeMassa’s client. In 1982, Villar, who is now 46, pleaded guilty to three counts of conspiracy to import marijuana and was sentenced to 10 years in federal prison.

But five months later, Villar became the government’s star witness, and he soon implicated DeMassa and others in the conspiracy and avoided going to jail.

The most recent twist in the case occurred Sept. 25, when a car belonging to DeMassa’s attorney was stolen from in front of a Los Angeles synagogue. Inside the car were attorney Barry Tarlow’s trial notebooks, which contained notes on defense strategy and a list of witnesses Tarlow expects to call.

Two days later, the notebooks arrived at the U.S. attorney’s office in San Diego, where they had been sent by a postal inspector after they were found in a Los Angeles mailbox. Federal prosecutors said they did not look at the notebooks and took them unopened to a U.S. magistrate, who opened them and decided they might belong to Tarlow. Tarlow identified the notebooks at a subsequent hearing and the magistrate ordered the documents returned to him, after they were copied.

The investigation also had a controversial beginning in a well-publicized seizure by federal officials of DeMassa’s client files, prompting various lawyers and lawyers’ groups to file briefs on DeMassa’s behalf. The raid set the stage for a bitter confrontation pitting DeMassa and Tarlow against U.S. Atty. Peter K. Nunez and other federal prosecutors. Some of that animosity surfaced in a report by CBS-TV’s “60 Minutes” in late 1983.

David Russell, a Kansas City attorney and president of the National Assn. of Criminal Defense Lawyers, said the investigation began with “the eroding of the attorney-client privilege” and is coming to trial “amid legitimate concerns about his (DeMassa’s) right to a fair trial.”

In April, 1983, agents from the Internal Revenue Service, the Drug Enforcement Administration and the U.S. attorney’s office obtained a warrant for a three-day search of DeMassa’s home and office. They justified the raid on grounds that they were looking for evidence that would link DeMassa to the Coronado Company’s smuggling activities. Ninety-five cartons and more than 1,000 of DeMassa’s case files were confiscated.

However, a U.S. District judge later ruled that, while the search was not unreasonable, the search warrants were excessively broad and violated the Fourth Amendment’s protection from unreasonable search and seizure. Tarlow and other defense attorneys went one step further and argued that the search violated the attorney-client privilege.

The search gave prosecutors access to files of DeMassa’s clients who had nothing to do with the Coronado Company case, the defense attorneys said. More than two years after the search, the 9th U.S. Circuit Court of Appeals agreed, and last month it ruled the search illegal because it violated the attorney-client confidential relationship and the clients’ right to privacy.

The controversial search would become a confusing tangential issue in the case, one that is not directly related to the upcoming trial.

A San Diego attorney who requested anonymity said the numerous appeals filed by both sides in the illegal search detracted so much from the trial issues that “the merits of the case are hardly discussed at all.”

Because the cartons seized in the raid remain sealed and in the custody of a special master appointed by the court, the search never led to any charges being filed against DeMassa.

Instead, the government brought DeMassa to trial after he was indicted in January, 1984, on charges of mail fraud and harboring a fugitive, and again in October, 1984, on various drug conspiracy charges and currency violations.

Tarlow said the prosecution’s list of potential witnesses totals 120 persons, including some of DeMassa’s former drug clients. The defense expects to call 50 witnesses during the trial, which might last six months.

“This trial is clearly a vendetta to settle old scores with Phil. They never liked Phil’s aggressive defense of drug clients. (U.S. Attorney Peter K.) Nunez and (Assistant U.S. Atty. Herbert) Hoffman are so personally involved in this case they can’t prosecute it objectively. Hoffman, particularly, is so personally involved that his judgment is clouded,” Tarlow said.

Chief Assistant U.S. Atty. Peter Bowie, speaking for the U.S. attorney’s office, denied Tarlow’s charges of a vendetta.

“That (claim) has been denied by the court in several written motions. The charges stand for themselves,” said Bowie.

Bowie made it clear that the search of DeMassa’s home and office will not play a part in the trial, and he denied claims by some local attorneys that the complex appeals and subsequent publicity that resulted from the search will make the trial issues more confusing.

“It can be prosecuted simply and in a trial manner,” Bowie said. “We’re ready to proceed.”