Opinion
Criminal Action No. 03-06004-01-CR-SJ-HFS
June 4, 2003
REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO SUPPRESS STATEMENTS
Before the court is defendant's motion to suppress statements made by defendant on February 14, 2003, to a government informant on the ground that defendant had retained counsel prior to the taped conversation. I find that (1) defendant had no sixth amendment right to counsel at the time the statement was recorded, (2) defendant was not in custody at the time the statement was made and therefore his fifth amendment right to counsel was not implicated, (3) his fifth amendment due process rights were not violated, and (4) the government did not violate Rule 4-4.2 of the Missouri Rules of Professional Conduct. Therefore, defendant's motion should be denied.
I. BACKGROUND
On April 3, 2003, an indictment was returned charging defendant with one count of interference with commerce by means of extortion under color of official right, in violation of 18 U.S.C. § 1951(a), and one count of conspiracy to obstruct justice by killing another person to prevent his attendance or testimony in an official proceeding, in violation of 18 U.S.C. § 371. Defendant filed the instant motion to suppress statements on May 19, 2003 (document number 29).
On May 27, 2003, the government filed a response to defendant's motion (document number 36). The government argues that defendant's sixth amendment right to counsel did not attach until April 2, 2003, when a criminal complaint was filed; defendant was not in custody at the time the statements were made so he had no fifth amendment right to counsel; taping statements preindictment does not violate defendant's due process rights; and there was no ethical violation as a result of recording defendant's statement.
On May 27, 2003, defendant filed a consent to proceed by way of stipulation after having reviewed the stipulation filed by the government on May 23, 2003.
II. FINDINGS OF FACT
On the basis of the evidence presented in the stipulation, I make the following findings of fact:
1. On January 31, 2003, the Federal Bureau of Investigation ("FBI") notified defendant that he was a target in a bribery investigation. Subsequently, on that date defendant contacted the government and was again informed of his target status and his need for an attorney. Defendant told the government that he could not afford an attorney. Therefore, that same day the government contacted Chief U.S. Magistrate Judge John T. Maughmer and arranged to have an attorney appointed to represent defendant. The letter from the government to Judge Maughmer indicated that defendant was suspected of having committed bribery, in violation of 18 U.S.C. § 201(b)(2).
2. On February 3, 2003, J. R. Hobbs contacted government counsel and requested information about the investigation so that he could decide whether to represent defendant. The government informed Mr. Hobbs that defendant was a target in regard to a bribery case and that the investigation was ongoing.
3. On February 10, 2003, Mr. Hobbs informed the government that he is representing defendant.
4. On February 13, 2003, the FBI contacted Merle Lusher who indicated that defendant had previously approached him with a scheme to kill a witness in this case. Consequently, the government contacted Katharine Fincham, the Professional Responsibility Officer for the United States Attorney's Office, and received authorization to contact defendant through Lusher. Additionally, according to Department of Justice protocol, the Acting United States Attorney, Matt Whitworth, also approved this covert activity on that date.
5. Also on February 13, 2003, Barbara Kammerman, Senior Legal Advisor with the Professional Responsibility Advocacy Office in the Department of Justice, sanctioned the proposed contact with a represented person.
6. Finally, on February 13, 2003, the government established a "taint" team to ensure that no privileged material was reviewed by the Assistant United States Attorney handling this criminal matter (Mr. Meiners) or any other agent involved in the investigation. Special Agent Tom Dalton acted as the "taint" agent and Linda Marshall was designated the "taint" Assistant United States Attorney.
7. On February 14, 2003, at 9:00 a.m., Lusher met with defendant at the Sullivan County Courthouse. Lusher had been admonished by the government to avoid talking to defendant about the pending charges, legal strategy, counsel, or any other matter that would disrupt the relationship between defendant and counsel. Lusher recorded the following conversation:
LUSHER: Can we talk in here?
(rustling noises)
LUSHER: What are we gonna do?
SAYRE: Just gonna have to wait it out.
LUSHER: Huh?
SAYRE: Gonna have to wait out.
(inaudible, unintelligible)
LUSHER: Are you sure you want to go through with all this?
SAYRE: I don't know.
LUSHER: Because he's here.
SAYRE: Who's here? . . . Oh, shit!
LUSHER: (unintelligible) I'm out of it. My name got brought up, I'm out of it.
SAYRE: Yeah, I know. (pause) How long's he gonna be here?
LUSHER: Huh?
SAYRE: How long's he here?
LUSHER: Well he got here last night, about 2:00 in the morning. (sighs) (unintelligible) and I gotta have. . . . You gonna have to talk to him on a cell phone or something, cause I'm out of it. And he's, he's cool, you ain't gotta worry about him. Named Jack. All I need from you is . . . If you're going to do it, do it, but I'm out of it. (unintelligible)
SAYRE: I know that, I don't want you in it.
LUSHER: So. . . .
SAYRE: Ah, I've got an investigator that's talking to this FBI Agent on Tuesday. Find out . . . Asking what they think they know. I really gotta wait `til about next Wednesday (whispering, unintelligible).
LUSHER: Well, it's up to you I mean . . . (clears throat)
SAYRE: He gonna stick around that long?
LUSHER: hugh ah (no).
SAYRE: No?
LUSHER: Nope.
(long pause)
LUSHER: Like I said, they only got my name involved in all this bullshit, you know.
SAYRE: uh huh I know.
LUSHER: (makes nosies)
SAYRE: Just from being seen with me I guess we . . . that's what I said about the sheriff.
LUSHER: So . . . I'm talking about my break in.
SAYRE: uh huh.
LUSHER: Well, he's waiting on me, so . . . it's whatever you want to do. Do whatever you want, I'm out of here.
SAYRE: How far did he have to come? Long way?
LUSHER: Way up North.
(long pause)
LUSHER: Well you tell me, or I'm outta here. I don't like being in here anyway.
(long pause)
SAYRE: What all did they ask Johnny?
LUSHER: Uh, if we works for ya, and ya know, who trimmed your house, and he asked if uh, he knew where you bought all your material.
SAYRE: uh huh.
LUSHER: Need to say something, you know. (someone clears throat)
(long pause)
SAYRE: Well I just, you know, if something happens, they'll come crawlin up your ass.
LUSHER: I know they will.
SAYRE: I just, I can't do that to ya.
LUSHER: Ok. That's all I need to know.
SAYRE: I mean, uh (unintelligible). If something happens to me, that's fine, but I, I can't let them do that to you. I can't do it to you.
LUSHER: (unintelligible) Well, I'm just, I'm outta here. (unintelligible) . . . in here.
8. Special Agent Tom Dalton, the taint agent, reviewed the tape recorded statement to determine whether any conversation occurred concerning (1) the bribery charge that was being investigated, (2) lawful defense strategy or legal arguments of counsel, (3) disparaging comments toward counsel, or (4) any other matter that would disrupt the relationship between defendant and counsel. Special Agent Dalton determined that the tape recording did not contain any objectionable material but instead focused on other matters which ultimately formed the basis for the allegations contained in count two of the indictment.
9. Subsequently, Special Agent Dalton contacted Linda Marshall and informed her that the taped statements did not include any of the foregoing subjects. AUSA Marshall then permitted AUSA Meiners to have access to the tape and its transcript which has been turned over to defendant as part of the discovery in this case.
III. SIXTH AMENDMENT RIGHT TO COUNSEL
Defendant argues that Lusher's taping his conversation with defendant violated defendant's sixth amendment right to counsel because (1) it is unfair to charge defendant with conspiring to obstruct an "official proceeding" when the proceeding is not deemed sufficiently "official" for the right to counsel to attach; and (2) although the right to counsel does not attach during grand jury proceedings, the fact that counsel has informed the government he is representing a target should protect the target.
It is undisputed that the sixth amendment right to counsel attaches to interrogations conducted after the initiation of adversarial criminal proceedings, whether the proceedings begin with a complaint or indictment. United States v. Manning, 310 F.3d 571, 575 (8th Cir. 1002),cert. denied, ___ S.Ct. ___, 2003 WL 1869942 (May 19, 2003). This right to counsel applies not only to direct confrontations by known government officers, but also "indirect and surreptitious interrogations" by covert government agents and informants. United States v. Henry, 447 U.S. 264, 272-273 (1980), quoting Massiah v. United States, 377 U.S. 201, 206 (1964).
In United States v. Dobbs, 711 F.2d 84, 85 (8th Cir. 1983), the defendant retained counsel when he was under investigation. Sometime during the next year, the FBI interviewed the defendant and he confessed. The defendant then argued that his confession was obtained in violation to his sixth amendment right to counsel. The court of appeals disagreed, holding that there is no right to counsel prior to the filing of a complaint or indictment.
The court did state in a footnote that it may be possible to find a sixth amendment violation if the government intentionally and unnecessarily delays filing formal charges for the sole purpose of eliciting a confession from a defendant who has no attorney. However, the court found that had not occurred in the Dobbs case. There is no allegation here that the government intentionally and unnecessarily delayed filing charges in order to get a statement from defendant, and indeed the formal charges in this case came much quicker than the charges in the Dobbs case.
Contrary to defendant's argument, it is not the lack of "officially" which makes his right to counsel non-existent. Rather it is the lack of formal proceedings. As discussed above, defendant's sixth amendment right to counsel does not kick in until a complaint is filed or an indictment is returned. Therefore, his first argument fails.
IV. FIFTH AMENDMENT RIGHT TO COUNSEL
Defendant also argues that the taped statement violates his fifth amendment right to counsel.
The Supreme Court has recognized that a person has a right to counsel during custodial interrogation as part of his fifth amendment right not to be "compelled . . . to be a witness against himself." Miranda v. Arizona, 384 U.S. 436, 467-70 (1966); Edwards v. Arizona, 451 U.S. 477, 481-82 (1981). Defendant was not in custody at the time of the conversation with Lusher and therefore the fifth amendment right to counsel is not implicated.
Defendant further argues that the taped statement violates his fifth amendment due process rights, citing a footnote in United States v. Hayes, 231 F.3d 663 (9th Cir. 1999), and Rule 4-4.2 of the Missouri Rules of Professional Conduct. Hayes involved a college professor who was selling grades to foreign students who had not performed the requisite work. Hayes was represented by counsel and had been served with a target letter when the government wired a co-conspirator who had decided to cooperate and then taped a conversation between Hayes and the co-conspirator. The court of appeals held that the taping did not violate the defendant's constitutional rights.
Rule 4-4.2 of the Missouri Rules of Professional Conduct states that "in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."
Defendant's reliance on the Rules of Professional Responsibility is also misplaced. In United States v. Fitterer, 710 F.2d 1328 (8th Cir. 1983), the defendant made the same argument which was rejected by the Eighth Circuit.
Under his view, once the subject of an investigation retains counsel, investigators could no longer direct informants to gather more evidence. We do not believe that DR 7-104(A)(1) of the Code of Professional Responsibility was intended to stymie undercover investigations when the subject retains counsel. Our view is shared by all three circuits which have considered the effect of DR 7-104(A)(1) in situations like Fitterer's. United States v. Vasquez, 675 F.2d 16, 17 (2nd Cir. 1982); United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.), cert. denied, 452 U.S. 920 (1981); United States v. Lemonakis, 485 F.2d 941, 955-56 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974).Id. at 1333.
Furthermore, the conduct engaged in by the government in this case has been approved in other courts as well. In United States v. Grass, 239 F. Supp.2d 535 (M.D. Pa. 2003), the government obtained taped conversations with the defendant through a co-conspirator after the defendant was represented by an attorney but before formal charging. The court held that the government had not violated the Rules of Professional Conduct because the conduct was "authorized by law" and that even if the conduct had violated the Rules of Professional Conduct suppression would not be the remedy.
In United States v. Balter, 91 F.3d 427, 436 (3rd Cir.), cert. denied, 519 U.S. 1011 (1996), the defendant presented the same argument as defendant Sayre has here. There the court rejected the defendant's argument. The court explained that the Rules of Professional Conduct prohibit communication with a "party" represented by an attorney. Because a suspect is not a "party" to anything until an indictment or complaint has been filed, the Rule of Professional Conduct does not apply at the pre-charging stage of a case even if a suspect is represented by counsel.
Therefore, based on the above, I find that defendant's fifth amendment right to counsel has not been violated, his fifth amendment due process rights have not been violated, and Rule 4-4.2 of the Missouri Rules of Professional Conduct has not been violated.
V. CONCLUSION
Based on all of the above, I find that (1) defendant had no sixth amendment right to counsel at the time the statement was recorded, (2) defendant was not in custody at the time the statement was made and therefore his fifth amendment right to counsel was not implicated, (3) his fifth amendment due process rights were not violated, and (4) the government did not violate Rule 4-4.2 of the Missouri Rules of Professional Conduct. Therefore, it is
RECOMMENDED that the court, after making an independent review of the record and the applicable law, enter an order denying defendant's motion to suppress defendant Sayre's statements.
Counsel are advised that, pursuant to 28 U.S.C. § 636(b)(1), each has ten calendar days from the date of receipt of a copy of this report and recommendation to file and serve specific objections. Failure to file and serve timely specific objections may result in waiver of the right to appeal factual findings made in the report and recommendation which are accepted or adopted by the district judge except upon the ground of plain error or manifest injustice.