Prosecutors scored a victory on Day One of the drug conspiracy trial of Phillip DeMassa on Wednesday when the defense was barred from telling jurors that the San Diego attorney might be a victim of vindictive prosecution by U.S. Atty. Peter Nunez.
With the jury out of the courtroom, Barry Tarlow, DeMassa's attorney, argued unsuccessfully that U.S. District Judge Earl Gilliam should allow him to tell jurors that Nunez is "biased and prejudiced" against DeMassa. But Gilliam ruled that Tarlow had failed to lay a proper foundation for that allegation and could not include it in his opening argument.
DeMassa is being tried on multiple counts of drug charges, mail fraud and harboring a fugitive in connection with the Coronado Company drug smuggling ring.
Gilliam's ruling is significant because DeMassa and Tarlow have consistently argued that Nunez has singled out DeMassa for prosecution. Since the case began two years ago, both sides have engaged in vitriolic exchanges that at times have made it appear as a personal struggle.
In opening arguments Wednesday, both sides made it clear that at times the trial may take a personal turn. When Tarlow persisted in trying to persuade Gilliam to let him mention Nunez's alleged motivation in the case, Assistant U.S. Atty. Herbert Hoffman jumped up and reminded the judge that he had already ruled on the matter.
"Is he (Tarlow) deaf?" Hoffman asked.
At the end of his lengthy statement, Hoffman told the jury that "I expect the presentation of the evidence to get heated on occasion."
Hoffman methodically walked the jury through a mountain of charts and evidence the prosecution alleges will prove that DeMassa was an active conspirator in the Coronado Company's drug-smuggling schemes. The prosecutor also said the government will prove that DeMassa knowingly harbored a fugitive when he allegedly helped a client avoid apprehension after a search warrant had been issued for his arrest.
Hoffman told the jury that DeMassa was motivated by greed when he agreed to defend ring members for hundreds of thousands of dollars. Later, DeMassa's association with them went beyond the normal lawyer-client relationship, and greed propelled him into the role of a drug conspirator, Hoffman said.
"This case is simply one of greed on Mr. DeMassa's part . . . He sold his ethics, his judgment and his legal practice for the money . . . He climbed into bed with his clients," Hoffman said.
Tarlow began his opening argument by telling jurors that "this case will be a battle." He offered a hint of the animosities involved when he pointed out that, while lawyers for both sides were on their best behavior in the courtroom, this was the exception rather than the rule.
"This is not some gentlemanly game of cricket for defense lawyers. It involves peoples' freedoms and liberty of a client," said Tarlow. "It's a system where the prosecution has the power, if they don't like something, to indict someone . . . . They have the power to buy testimony with either money or freedom."
Tarlow's latter comment was a reference to Louis Villar, a former client of DeMassa and mastermind of the Coronado Company. 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, he became a government informant and avoided completing his jail sentence by implicating DeMassa and others in the conspiracy. Villar, a former Spanish teacher at Coronado High School, is expected to be the government's star witness at the trial.
Tarlow painted Villar as "an evil, dishonest, cunning individual."
"He is intelligent and he is smooth," Tarlow said. "He is anything but a fool. He is a master manipulator, a user of people . . . He is a man who is utterly without a conscience."
Tarlow is expected to finish his opening statement today, and the prosecution is expected to begin calling witnesses. The trial is expected to last six months.