- COLE LLP

 

ROCKNE COLE DAN VONDRA Attorneys at Law moss (319) 3584900 FAX (319) 358?rgoz
209 E. Washington St. Ste. 305 Iowa City, IA 5224c 

July 24, 2008
Representative Zoe Lofgren
Washington, DC. Of?ce
102 Cannon HOB
Washington, DC. 20515

Re: May 12, 2008 Postville Immigration Raids
Dear Congresswoman Lofgren:

Your Legal Advisor Traci Hong contacted me last week, and asked me to submit
a written statement in connection with the Congressional hearing on the immigration
raids in Postville, Iowa. I told her that I had a fairly limited role in this process, but that I
would be willing to describe my experience of May 12, 2008.

May 12 began like any other day. I arrived at the of?ce, and began reading my
email. At about 9:30 am, my partner, Dan Vondra, knocked on my door, and told me
?the raids have begun and the black heliCOpters are ?ying over Postville.? Homeland
Security of?cials had rented the Cattle Congress several weeks before, but no one knew 
when or where the raid would take place. We anticipated that the raid would probably
proceed like the Swift plant packing raid in Marshalltown, Iowa last year. I then checked
the internet, looked at the initial photos, and then went back to work.

A short time later, Denise Pickens, a clerk in the Northern District of Iowa, called
me. Ms. Pickens used to be the appointment clerk for Criminal Justice Act appointments
for the federal court in Cedar Rapids, Iowa. About two years ago, the Federal Defender
consolidated Criminal Justice Act appointments into the of?ce of the Chief Public
Defender in Des Moines, Iowa, and now all appointments usually begin with a phone call
from Des Moines. Ms. Pickens told me that there was going to be a Special meeting at
the United States District Courthouse in Cedar Rapids at 1:30 pm. that afternoon, and
that I should not tell anyone about the meeting. So I drove up to Cedar Rapids to see
what this meeting was about.

I went up to the Main Courtroom on the 3?"d Floor. I saw approximately 10-? 1 5
defense lawyers whom I knew to be on the Criminal Justice Act Panel in Cedar Rapids. I
also saw: Assistant United States Attorney (AUSA) Stephanie Rose; Chief Clerk of Court
Robert Phelps; some United States marshals, and I believe some probation of?cials. At
some point early in the presentation, Chief Clerk Phelps handed out what I can only
characterize as guilty plea handbooks. These handbooks described all of the elements of
offenses, and essentially contained a book of waivers of various rights of the defendants.

Mr. Phelps also passed around a sign up sheet with requests for our cell phones, and
email addresses.

AUSA Rose began the meeting by seaming the audience for media of?cials.
After she determined that no media were present, she began the presentation. She
immediately began discussing the so called ?representation plan.? She indicated each
attorney would be assigned a group consisting of 10 clients. She indicated that we could
be expected to represent up to 40 defendants, and that they were expecting possibly 700
defendants. As it turns out, I believe the Des Moines Register con?rmed an average of
17 clients per attorney. 

She then described the four possible pleas deals being offered to each group. The
first deal was a plea to a felony (I do not recall which), and immediate placement in the
custody of Bureau of Immigration and Customs Enforcement. So in other words, the
defendant was offered no jail time, but the client would have a felony in the record. The
second deal, and apparently most common, was a ?ve month jail sentence to be followed
by immediate deportation to their home countries. The third category was 12 months and
one day. I believe the fourth category was reserved for defendants with signi?cant
aggravating facts such as prior aggravated felonies, or violent histories. I do not recall
the speci?c felony that had to plead to but all the felonies were basically some variation
on the use of a forged identi?cation card to get a job.

At one point, I asked if she had considered that any of the defendants were
innocent. She replied that they could opt out and proceed on the regular docket if they
wanted to. I do not recall at that time whether she indicated that the United States was
threatening an aggravated identity theft charge if they opted out. I have subsequently
learned that any defendant refusing such a deal could face the aggravated identity theft.

My next question focused on the presentence investigation reports. I have
probably represented about 5-7 federal defendants on fake papers charge in the past. In
the typical case, the client had entered without inspection, and consequently had no legal
status in the United States to protect. They often had already admitted to possession of
the fake identi?cation document, and consequently such cases were dif?cult to defend.
Most resulted in ?time served? plea deals. In those simple cases, we had often
complained to probation about why they needed to do a full pre-sentence investigation
report on the Defendants IF they chose to get deported as soon as possible. In fact, at one
conference last year, United States District Court Judge John arvey even told one of the
probation of?cers that a full presentence report was not necessary in the run of the mill
case. The United States Attorney?s Of?ce and the Probation Of?ce had often strongly
resisted waiver of presentence reports on two grounds. First, they did not want to miss
prior criminal convictions, which can increase the prison sentence. Secondly, the
probation of?ce did not get full credit for an abbreviated presentence report. So they
wanted to do a full presentence report to keep their funding up for more probation
staffing. 

I asked Ms. Rose how they could be doing such a quick guilty plea process when
they had so strenuously resisted abbreviated reports in the past. I asked her why they
were not concerned about missing criminal convictions as they had in the past. She
replied that these were Rule 11 (C) plea deals. In the typical plea deal, the court is
not bound by the sentencing recommendations of each party. She is only limited by the
statutory maximum penalty and the advisory sentencing guidelines. A Rule ll (C)
allows the court to be bound to the sentencing recommendations of the United States and
defendant. At the guilty plea hearing, the court noti?es the parties if she will accept the
guilty plea, and if she does, she is bound to the sentencing recommendation of the Parties.
If not, the defendant can withdraw the plea. This effectively guarantees that the
defendant will get the agreed upon sentence on the plea bargain, and avoid the risk of a
longer sentence before the judge. What I found most astonishing is that apparently Chief
Judge Linda Reade had already rati?ed these deals prior to one lawyer even talking to
his or her client. Judge Reade?s presence at the meeting seemed to con?rm as much.
This directly violates Rule 11 plea procedure, which provides that the ?court must not
participate in these [plea] discussions.? Moreover, this rati?cation appeared to be ex
parte with the United States Attorney?s office. Indeed, it had to have been ex parte
because no lawyers had even met with their clients prior to these Rule ll (C) plea
bargains being announced.

Ms. Rose concluded by stating that plea status hearings would begin by Saturday,
May 17, 2008, and that the clients would have seven days to accept offer. She justified
the quick time line because they were concerned about getting the defendants back to
their families in Guatemala as soon as possible. Especially considering this extremely
rushed process, I realized that the acceptance of such an appointment would have
required me to immediately report myself to the Iowa Bar Association for failing to
protect a client?s right to con?ict free counsel. Iowa Rule of Professional Responsibility
32: 1.7 and provides that a lawyer shall not represent a client if there is a
signi?cant risk of con?ict, and that any consent to con?ict shall be in writing. The
potential con?icts were obvious. For example, suppose, under the group representation
plan, that an attorney simultaneously represents a woman with a Violence Against
Women Act adjustment case against her husband, and her husband in a different group.
In this situation, the wife may have a good claim to adjust status, and remain in the
United States on the basis of her status as a victim of domestic violence. Her husband
will likely be prosecuted for domestic abuse, and could be deported on the basis of being
the abuser. Their interests directly con?ict. Other examples come to mind. What if one
of the workers helped the other to obtain the false paper? That person would certainly be
a witness for either the defense, or the United States. Moreover, if such potential
con?icts existed, the 6th Amendment compels disclosure to the Court, and on the record
colloquy by the District Court to ensure the client?s right to con?ict free counsel. S_ee_
Holloway v. Arkansas 435 US. 475, 485-486 (1978) (defense attorneys have the
obligation, upon discovering a con?ict of interests, to advise the court at once of the
problem.) Under these circumstances, it would have impossible to meaningfully assess
con?ict of interest issues in seven days.

After Ms. Rose described the plea deals, a United States marshal began describing
the Orwellian security plan. Each attorney accepting an appointment had to arrive early
the following day at the Cattle Congress for processing and to obtain a photo
identi?cation card. I think these cards were similar to a necklace type press credential.
He then told us that attorneys would be able to meet with clients in a designated
representation zone. He indicated that each attorney could not'walk around Cattle
Congress grounds without an escort by a United States marshal. He also advised us of an
evacuation plan in case of any disturbance. At that point, I felt that I could not participate
in the mass violation of rights. I informed Mr. Phelp that I would not be participating.

He said, ?0k, please turn in your 3-ring binder.? I then walked out in disgust. Chief
Judge Reade was there for at least 10 minutes. I do not recall at which point she left. I
think at some point AUSA Stephanie Rose advised her it would be a good time to leave
as people began asking about the details of these deals.

Obviously, I am fairly reluctant to openly criticize Judge Reade. I have pretty
much resigned myself to not taking any more appointments in her district. However, in
spite of the ?nancial repercussion for taking this position, I simply could not stay silent
on this issue. The Clerk of Court issued a press release talking about the roundup of
illegal aliens. This process: presumed guilt; deprived defendants of their right to due
process; and interfered with their basic right to choose their own counsel. The court
appointed attomey?s role appeared to be only to act as a guilty plea processing clerk, and
served only to expedite the mass waiver of rights. From what I can infer based upon the
facts from the initial meeting as well as subsequent media reports, Judge Reade, and the
United States Attorney?s of?ce coordinated the mass detention, roundup, representation
plan, plea deals, and sentencings PRIOR to one single attorney consulting with a client. I
hope I am wrong about that inference, but the overwhelming facts suggest a breath taking
level of coordination between the United States District Court Judge and the Department
of Justice. I nevertheless strongly encourage the Committee to keep an open mind, and
to afford all of?cials involved a fair hearing, which unfortunately was not given to the
Defendants in Postville. 

ely,

Rockne Cole