Bugs, Wiretaps Snare Lawyer in FBI’s War on Mob Crime : Law: Tactics leading to indictment naming San Diego attorney Nick DePento raise issues about balance of power in an adversarial system of justice.

No stranger at playing hide-and-seek with the feds, reputed mobster Chris Petti preferred in recent years to do business from the sanctity of some two dozen public pay phones scattered around San Diego.

The only place more secure, it seemed, was his lawyer’s office. According to an FBI informant, Petti, considered the Chicago Mafia’s top contact in Southern California, was “paranoid” about being wiretapped. But he felt “safe” using the line at lawyer Nick DePento’s office, the informant said.

It was Petti’s opinion that the FBI “would not tap an attorney’s telephone,” said the informant, whose remarks were filed in a report at the San Diego Federal Courthouse. Petti was flat-out wrong.

The FBI not only tapped DePento’s phone, it planted a microphone in DePento’s office, according to court records. And, two weeks ago, when prosecutors charged Petti, the alleged bosses of the Chicago mob and others with racketeering in a plot centering on an Indian gaming hall, the indictment was notable for one other name: DePento, a leading San Diego lawyer.

By bugging DePento’s phone and his office, the case highlights an emerging theme in crime-busting and, in particular, mob-busting. It’s lawyer-busting.

“The war on crime,” said Los Angeles criminal defense lawyer Barry Tarlow, “has become a war on the defense bar.”

Aggressive prosecutors have taken aim at crime through wiretaps, fee seizures and, as in the San Diego case, even indictments directed at lawyers. But those strategies raise sharp concerns about skewing the balance in a legal system that depends not only on able prosecutions but on a zealous defense--even for mobsters.

The San Diego case revolves around charges that the mob plotted to infiltrate a gambling hall at the Rincon Indian Reservation in northern San Diego County, seeking to skim profits and launder cash. Despite elaborate planning, the scheme never went through.

Named in the indictment were Petti, alleged Chicago mob bosses Samuel Carlisi and John (No-Nose) DiFronzo, DePento and six other men.

DePento apparently is the first lawyer in California in recent memory to face indictment for “mob-connected” work, according to judges, lawyers and police from around the nation who were interviewed last week.

According to prosecutors, DePento gave the “plan of deception and infiltration” an “air of legitimacy.” In essence, he is charged with concealing mob involvement in the scheme. Like the others, DePento has maintained he is innocent of all charges.

“I am confident that once the evidence is shown, he will be absolved of any wrongdoing whatsoever,” said DePento’s lawyer, San Diego attorney Nicholas Cimmarrusti. DePento remains free on $25,000 bail.

As DePento learned the hard way, the government has become far more willing in recent years to plant wiretaps and microphones in a lawyer’s office.

Like any big business, organized crime depends on lawyers to navigate the complex paper trails essential to corporate success, according to a special federal commission that studied the issue six years ago.

And only aggressive tactics such as wiretapping will ferret out “mob-connected” lawyers suspected of wrongdoing, according to the 1986 President’s Commission on Organized Crime. There simply is no other way around the attorney-client privilege, which otherwise shields the conversations a lawyer conducts with a client, the commission said.

Under the legal rules, the shield is supposed to give way when a crime is being discussed. But without a wiretap, there’s no way to learn about that crime, since no one comes forward to say what was said. “It’s a very delicate area,” said Assistant U.S. Atty. Carol Lam, the prosecutor in the San Diego case.

“When this indictment was announced, everybody was running around saying, ‘Oh my god, there’s a lawyer involved. This must mean (the FBI) can listen to anybody.’ No, they can’t,” Lam said.

The law demands that agents stop listening when a conversation is not related to the crime being investigated, Lam said. “That doesn’t mean just don’t listen,” she said. “They turn the whole machine off. It’s not recorded. And (FBI) monitors don’t hear it.”

No one knows for sure how many electronic bugs are placed in lawyers’ offices, since federal judges authorize wiretaps under tight secrecy.

Similarly, all that’s known about the number of “mob-connected” lawyers is that it’s “small” and concentrated on the East Coast, where organized crime traditionally has been based, said the presidential panel.

There is no reliable number of lawyers who have been indicted for activity on behalf of clients linked to organized crime.

Nor is there any sort of “initiative or wholesale policy” to specially target lawyers, said Doug Tillett, a spokesman for the Department of Justice in Washington, D.C. Prosecutors simply look for “clear evidence” that a lawyer is involved in crime, he said.

It can be a fine line, distinguishing between lawyers who are rightfully performing as zealous advocates for their clients and lawyers who are wrongfully into crime, Tillett said.

But, he said, “There are more cases.”

When lawyers are wiretapped, however, the tactic raises broad issues about the balance of power in an adversarial system of justice.

Last July, after presenting wiretap evidence, prosecutors successfully disqualified flamboyant New York lawyer Bruce Cutler from defending reputed Gambino crime family boss John Gotti of racketeering charges. Three times before, Cutler had helped Gotti beat back convictions.

But last summer, prosecutors presented secret tapes and alleged that Cutler and other attorneys had acted as “house counsel” for the Gambino crime family. Rejecting a defense bid to suppress the tapes, a federal judge in New York disqualified Cutler, saying the lawyer might have to testify against his client--which would be a conflict of interest.

Cutler did not return a phone call last week to his office. But after the judge’s decision last July, he said the government “doesn’t want a fair fight.”

Joseph J. Balliro, a Boston defense lawyer who often represents reputed mobsters, said last week, “I don’t know of any society in the world that went down the drain because of defense lawyers standing up for their clients. Every one of them went down the drain because of the corruption of government power.”

Wiretapping also highlights ethical concerns over government intrusion into a lawyer’s purportedly private business.

“What if I’m in there discussing with my lawyer the intimate details of my domestic problems?” asked Temple University law professor Charlie Rogovin, who served on the 1986 presidential commission.

The FBI promises to shut off the tape, but agents are only human and make mistakes, Rogovin said, adding, “I mean, I don’t want people listening to those communications.”

Defense lawyers also complained that prosecutors can turn on a target for arbitrary and vindictive reasons.

“Anybody who represents a criminal defendant, especially those (labeled) mob-type guys, and has a cocktail with them after work, is a target,” said Las Vegas lawyer Oscar Goodman, known for a client list of alleged mobsters, including Petti.

“Prosecutors and their agents, the FBI, the investigators, just will not accept that an attorney can have a social relationship with a client,” Goodman said. “Unfortunately, a fellow like Nick (DePento) made a terrible mistake because he fell into their trap. But he didn’t do anything wrong.”

What DePento did do was choose an office site down the street from the San Diego federal building, where the FBI could see him open the door to reputed mobsters.

According to affidavits on file at the courthouse, Petti sometimes used DePento’s office and phone to hold meetings and make calls, confident he could escape government surveillance. Once, when DePento was out of town, Petti used his personal desk and telephone, said Robert Benjamin, a friend of Petti’s who had become the FBI’s undercover informant.

Suspicious, the FBI asked for a tap on DePento’s phone and for a bug in his office.

In the court files, agents Charles Walker and James G. Walsh acknowledged the sensitive nature of their request. They promised to intercept phone calls at DePento’s office only when Petti was inside the office, on the way or on the line.

The FBI also laced the file with allegations that DePento was intimately involved in the racketeering case.

Once, Benjamin said, DePento personally answered the phone when Donald Angelini, the Chicago mob’s top gambling expert, called. According to Benjamin, DePento explained that the tribe had to get a percentage of the operation’s proceeds or the Bureau of Indian Affairs would not approve the deal.

Another time, the subject was legal fees, according to the FBI affidavits. Talking to his main contact in Chicago, Michael Caracci, Petti recalled the last time the mob’s gambling expert, Donald Angelini, had been in town. According to Petti, Angelini said, “Jeez, you know you got to throw him (DePento) a few dollars.”

In an ironic passage, Caracci goes on to explain that it would not do to link DePento’s name with Angelini: “They’ll say, uh huh, what the (expletive) is he doing with him, and you know before you know it they’ll keep going further and further, then they tap Nick’s line . . . and that’s the end of it, you know.”

On July 9, 1987, Gordon Thompson Jr., who was then the chief judge of the San Diego court, gave the go-ahead for the taps.

One of the first recorded calls, however, reveals why wiretaps can be so dicey. Agents listened to an entire conversation because Petti and DePento did the talking--and learned only that it involved standard lawyering stuff.

Petti called DePento, concerned with reports that Congress was considering legislation to regulate Indian gambling. He kept telling DePento to “research the new proposed law,” according to the affidavits.

There is also self-criticism in the FBI reports--and confirmation that agents do, indeed, make mistakes. These are the notes from a call Petti placed to DePento’s home at 6:55 p.m. on July 19, 1987: “After DePento got on the telephone with Petti, this conversation was, in my opinion, incorrectly minimized by the monitoring agent.” There is no elaboration.

“Minimized” is the FBI term for ending an agent’s eavesdropping, almost always because the call is not relevant to the investigation.

Months of minimizing later, however, the FBI apparently got more of what it was looking for.

By the spring of 1988, the FBI had placed another undercover agent into the investigation. By this time, the Chicago mob had opted not to fund the deal, so Petti was casting about for investors. Posing as a New Jersey man attempting to launder drug proceeds, the agent met April 22, 1988, with Petti and DePento in the lawyer’s office.

“The (agent) showed them $250,000 in cash which DePento said he would be able to handle with no questions asked,” according to the agent summaries.

The report continued: “The (agent) said if something happened he didn’t want anyone to be able to trace the name on the corporation to him. DePento said that’s not a problem.

“Petti told the (agent) that Nick DePento was ‘like family’ to him, and they could trust him to hold the money.”

Petti continued talking. If the federal government ever found out he was involved in gaming at Rincon, it would shut down the business, he said. DePento agreed, saying closing would be justified on the grounds “there was an undisclosed hidden ownership and there is organized crime involved on a federal reservation.”

The meeting closed with DePento suggesting a way to disguise the source of funding for the gambling, according to the summaries. The group had decided to put the name of Petti’s main Indian contact at Rincon, Glenn Calac, atop the application but worried about how to explain where the Indian got enough money to open a gambling hall.

“DePento said that Calac could say he got the money from ‘Cousin Red Cloud,’ who died,” according to the FBI reports.