The Problem of “Parallel Construction” in Criminal Investigations

“In wartime, truth is so precious that it must always be attended with a bodyguard of lies.” – Winston Churchill

“Parallel construction” is a law enforcement technique where a law enforcement official who wishes to keep an investigative activity hidden will take the results of the investigation and “reinvestigate” the case using other methods to come to a conclusion the official already knows to be true. This can be done to hide an investigative technique, the identity of a cooperating witness or for some other more nefarious purpose such as obscuring an illegal search. If the technique is properly implemented, the subject of the parallel construction who becomes a defendant in a criminal case will never know the parallel construction occurred. In fact, it is likely that many people sitting in federal prison today were the victims of parallel construction and never suspected it. Even if they did suspect there was more to the investigation than the government provided, find the information and proving it can be insurmountable burdens. Even when it has been proven, courts have been reluctant to do anything about it.

Examples of Parallel Construction

The case of United States v. Alverez-Tejeda sets forth an example of parallel construction. These are the facts that are described by the Ninth Circuit Court of Appeals:

Ascension Alverez-Tejeda and his girlfriend drove up to a traffic light.   As the light turned green, the car in front of them lurched forward, then stalled.   Alverez-Tejeda managed to stop in time, but the truck behind him tapped his bumper.   As Alverez-Tejeda got out to inspect the damage, two officers pulled up in a police cruiser and arrested the truck driver for drunk driving.   The officers got Alverez-Tejeda and his girlfriend to drive to a nearby parking lot, leave the keys in the car and get into the cruiser for processing.   Just then, out of nowhere, someone snuck into their car and drove off with it.   As the couple stood by in shock, the police jumped into their cruiser and chased after the car thief with sirens blaring.   The police then returned to the parking lot, told the couple that the thief had gotten away and dropped them off at a local hotel.

As Alverez-Tejeda only learned later, this entire scenario was a lie. All of the individuals involved in this incident, including the “drunk driver” and the “car thieves” were actually government agents. Before this incident had ever been planned, the DEA suspected that Alverez-Tejeda was transporting narcotics. Rather than obtain a search warrant based upon probable cause (which the Ninth Circuit Court of Appeals found that they had), the DEA decided to set up this elaborate ruse to hide the ongoing investigation.

The Ninth Circuit found this type of ruse to be acceptable from a constitutional standpoint. It reasoned that since there was probable cause to search the vehicle before the staged accident, the subsequent dishonest of the DEA was of no import. This is consistent with Supreme Court precedent that permits law enforcement officials to employ deception when dealing with suspects.

Long after this case was decided, I attended a meeting of the criminal defense attorneys where a prominent prosecutor spoke. During his speech, he mentioned that his office was attempting to confront the issue of “accommodation perjury”, a practice whereby police will lie about what they saw in order to bolster the testimony of a fellow officer or confidential informant.

This reminded me of two incidents I experienced as a prosecutor where law enforcement officials provided statements that were at odds with objective evidence in order to support the testimony of an informant. In one case, a federal agent testified to observing a drug transaction that occurred in a car. The agent testified that he observed the entire transaction through the rear windshield of the car. At trial, the defense presented independent testimony proving that the rear windshield had been broken prior to the date of the alleged drug transaction and replaces with cardboard. The agent could not have seen what he said he saw.

In the federal court system in the United States, where over 95% of defendants plead guilty, it is difficult to know how common parallel construction occurs; however, a study by Human Rights Watch entitled Darkside: The Secret Origins of Evidence in U.S. Criminal Cases suggests that occurs frequently, perhaps daily, in the United States. It is rarely identified.

The Protection of Law Enforcement and Intelligence Methods and Sources

The opening quotation from Winston Churchill suggests that there are times when the truth needs to be protected even, if necessary, by lies. Churchill was speaking, of course, of the titanic struggle the United Kingdom faced in its war with Nazi Germany. There are those who would suggest that there are other battles that require the protection of intelligence and law enforcement methods, like the War on Drugs or the War Against Terrorism. They argue that disclosing the origins of an investigation could compromise ongoing investigations and, if the bad guys were to find out U.S. law enforcement methods, they could render U.S. law enforcement ineffective. Illicit drugs would cross the U.S. border or arrive by ship from foreign countries and be sold on the streets of American cities.

This law enforcement rationale for hiding the origins of investigations borrows its logic from intelligence agencies. One of the first cases in which I was involved was United States v. Samuel L Morrison, a civilian intelligence analyst at the Office of Naval Intelligence. In that case, Morrison copied some classified photographs and sold them to Jane’s Defense Weekly, a British publication. Morrison was convicted because the disclosure of the photographs revealed U.S. capabilities when it came to satellite surveillance of Soviet naval facilities. The theory was that by disclosing U.S. capabilities, Morrison had enabled the Soviets to take countermeasures to defeat U.S. intelligence efforts. Morrison was convicted.

There is a difference between law enforcement and intelligence activities, however. The primary function of intelligence is to identify enemy intentions and capabilities to allow policy makers to make informed decisions in foreign affairs, or, failing that, to take effective combat operations if necessary. The purpose of law enforcement activity is to identify criminal activity and arrest and prosecute the individuals involved. Law enforcement therefore has a punishment component that intelligence does not. Criminal defendants are also entitled to a wide array of constitutional protections that foreign adversaries are not.

When we seek to take away the lives, property or freedom of our fellow citizens, the constitution requires a fair trial. A fair trial requires the disclosure of the evidence against the defendant, the disclosure of all exculpatory evidence in the government’s possession, a truthful explanation of the investigative techniques used by the government, and a public trial to determine whether the defendant is guilty or not guilty. There is no room for dishonesty or subterfuge by the government. The parallel construction of the investigation undermines all of these principles.

But are there not investigative techniques that need to be hidden and kept secret? Is there not a role for intelligence in domestic law enforcement? These are legitimate questions, and the answer is that yes, there is a role for domestic intelligence in the U.S., and there may be investigative techniques that should not be publicly disclosed. These factors, however, do not justify the parallel construction of investigations. The Foreign Intelligence Surveillance Act allows the government to engage in domestic espionage but respects (or at least attempts to respect) constitutional rights by requiring the involvement of a judge to engage in some intelligence collecting activities. Changing the evidence presented to a court, a form of parallel construction, is illegal and led to the conviction of a former assistant general counsel of the FBI recently.

There are two other points to be made. First, not all, or even most, intelligence activities involve illegal activity. Following suspects, noting their contacts, identifying suspicious activity is all well within the confines of the constitution. Collating and sharing this information with other agency are all valid and appropriate “intelligence” functions. Hiding the source of an investigation, however, is not.

Finally, as a prosecutor, I was confronted with situations where the disclosure of a confidential source could jeopardize the life of the informant or the informant’s family. In those cases, we would seek to protect the identify of the confidential informant. When the defense was successful in convincing the court that the identity of the informant was necessary, we would need to weigh the risks to the informant against the importance of the prosecution, and in many cases, we would dismiss the charges rather than disclose the identity of the informant. As a defense counsel, I have seen the government dismiss charges against my clients on a number of occasions to avoid the disclosure of classified information or the identity of a confidential informant.

It is indeed easier for the government to engage in parallel construction rather than disclose information that could be harmful to its case, but prosecutorial expediency should never be permitted to overcome constitutional rights.

Parallel Construction, Brady v. Maryland and the Fruit of the Poisonous Tree

As recently explained in another blog post, there are systematic problems with how the government’s obligations to produce exculpatory information to the defense are handled. The government routinely fails to identify and produce Brady materials in many cases. Parallel construction, however, goes a step further by creating a false narrative designed to mislead defense counsel, the court, the jury, and the public as a whole. Rather providing information on how an investigation actually began, the government presents a false narrative that subverts justice.

To illustrate this point, let’s consider a hypothetical where a confidential informant has a grudge against the defendant because the defendant has had an affair with his girlfriend and then embarrassed him in the community. The confidential informant has said that he will do “whatever it takes” to get the defendant. The confidential informant has previously been convicted of perjury and lying to the police. However, since his fifth conviction, he has become critical to understanding the internal operations of an organized crime group operating in the city.

In order to get back at the defendant, he tells his handler that the defendant is a major drug dealer and, in fact, has cocaine in his residence at that time. In reality, the informant has placed cocaine in the defendant’s residence without his knowledge. In order to protect the identity of the confidential informant, the government conducts its own surveillance based upon an “anonymous tip” and observes what it believes to be “suspicious activity”. It may even have another source who is under intense pressure provide an affidavit stating that he has purchased cocaine from the defendant in the past. Using this parallel construction of the investigation, the original confidential informant’s identity is completely hidden. The identity of the person who framed the defendant and the information that could be used to show a motive to lie and otherwise impeach the first cooperating witness are never disclosed. This parallel construction would be a clear violation of Brady and Giglio v. United States.

Parallel construction can also be used to hide the illegal conduct of law enforcement. Take, for example, a hypothetical where police detectives without a warrant or probable cause conduct an illegal search of a building and discover a cache of drugs and guns in the basement. They cannot arrest the owner of the building because the search was illegal, so instead, they send a confidential informant to the building to buy drugs. After the drug buy, they present the observations of the confidential informant to a magistrate in order to obtain a search warrant and then seize the guns and drugs pursuant to the warrant. As far as the world knows, the illegal search never occurred. If defense counsel and the court knew of the initial illegal search, however, the evidence would have been suppressed as the “fruit of the poisonous tree”, a constitutional legal doctrine that holds that an initial illegal act taints all evidence that flows from it.

Discovering and Combatting Parallel Construction

There is no doubt that parallel construction occurs; however, uncovering it can be daunting. In many if not most cases where parallel construction has occurred, the defense will never even suspect the government’s duplicity. When parallel construction is suspected, the government has an array of arguments it will deploy to protect the scheme. It will argue that the defense’s request for information needed to show parallel construction is speculative, a mere “fishing expedition”. Of course, one cannot catch fish without going to the lake first to see if there are any fish. Nevertheless, the defense must be prepared to make a strong showing if it is to get a peek at the relevant evidence.

The government will also frequently argue that the information requested is not in the government’s possession. Although contrary to the U.S. Attorney Manual, some prosecutors will take the information provided by an investigative agency consider that information to be the only information in the government’s possession. They must sometimes be reminded of their obligation to search for information in the possession of investigative agencies.

Often times, the government will argue that if there was a parallel investigation, the results of the investigation are irrelevant since the charges flow from an independent, untainted investigation. They frequently bolster this argument with an assertion that they have not seen another investigation and would not, in any event, use information from that investigation. As the two hypothetical examples above demonstrate, it is not the government’s use of the information that is important but the defense’s right to exculpatory information that controls. Nevertheless, all of these arguments are difficult for the defense to overcome.

How can a defense counsel know if there has been parallel construction? In some cases, a defendant himself or herself will be able to point to the implausibility of the discovery of evidence. The circumstances of a search may be implausible. Unexplained coincidences may be another sign of parallel construction. Sometimes, a careful review of evidence may point to the existence of other investigative reports that were not disclosed or another confidential informant that exists. A thorough investigation by defense counsel using his or her own investigative resources will disclose parallel construction in an investigation.

Even with unlimited time and resources, it may not be possible to uncover parallel construction in a case. Sometimes the parallel construction will not become known until long after a trial and conviction, perhaps in an apparently unconnected trial. In these cases, a separate habeas corpus action under 42 U.S.C. 2255 may be appropriate. Since the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996, these collateral attacks on convictions have become much more difficult to pursue. Although they are a long shot, they may be a convicted defendant’s only shot.