Summary
In Tableman, the court concluded that an interview of a then-represented defendant conducted twenty-two months prior to the indictment fell within "an ordinary pre-indictment investigation" and within "the 'authorized by law' exemption" of the no-contact rule.
Summary of this case from United States v. SabeanOpinion
Criminal No. 99-22-B.
September 3, 1999.
RECOMMENDED DECISION ON DEFENDANT'S MOTION TO SUPPRESS
A grand jury indicted Defendant in April 1999 for violating 18 U.S.C. § 666(a)(1)(A). Defendant now moves to suppress an interview conducted on May 18, 1997, by two FBI agents regarding this matter. The Court conducted an oral hearing on the issues raised in Defendant's motion on August 31, 1999. For reasons stated below, I recommend that the Court DENY Defendant's motion.
The indictment, in part, reads:
Commencing on or about June 1995 and continuing thereafter through and including in or about December 1995, in the District of Maine, the Defendant, Beth C. Tableman, did, on or about the individual dates listed below, intentionally misapply, embezzle, steal, obtain by fraud, and otherwise knowingly convert to the use of the person other than the rightful owner, property, namely checks and money which were allegedly to have been transferred to other accounts for the benefit of Northeast Occupational Exchange, which in the aggregate was valued at $5,000 or more, and which property was owned by, or was under the care, custody and control of Northeast Occupational Exchange[.]
Factual Background
On May 18, 1997, Defendant agreed to meet with two FBI agents regarding this matter. Although the Assistant U.S. Attorney approved of the interview, he did not participate in it. At the interview Defendant denied any wrongdoing.
Defendant seeks to suppress the statements she made at the interview because she claims that she told the agents that she was represented by counsel in this matter. The agents deny that she told them she was represented by counsel. The U.S. attorney who approved the interview also denies that he had any actual knowledge that Defendant was represented by counsel at the time of the interview.
Defendant claims that by conducting the interview the government violated: (1) her Fifth Amendment right against self-incrimination; (2) her Sixth Amendment right to counsel; and (3) her right to due process. Defendant also argues that by conducting the interview the U.S. attorney committed an ethical violation. We address Defendant's arguments below.
A. Fifth Amendment right against self-incrimination
Defendant argues that the government violated her constitutional right against self-incrimination when it interviewed her without given her a Miranda warning. Miranda v. Arizona, 384 U.S. 436 (1966). The Government disagrees by pointing out that the statements were not made during a custodial interrogation and therefore, no constitutional violation occurred. United States v. Conley, 156 F.3d 78, 82 (1st Cir. 1998) (without Miranda warning, statements made during custodial interrogation are inadmissable). The Court agrees. None of the facts asserted by Defendant in her motion or during oral argument suggest that Defendant's participation in the interview was anything but voluntary. Because the interview could not be termed a custodial interrogation, I recommend that the Court find that Defendant's right against self-incrimination was not violated.
B. Sixth Amendment right of counsel
Defendant next maintains that her Sixth Amendment right to counsel was violated because the agents continued with the interview after she told them she was represented by counsel. Putting aside for the moment that both agents deny that she ever made that statement, Defendant was not entitled to counsel even if the agents knew she was represented by counsel. The United States Supreme Court in Moran v. Bubine, 475 U.S. 412, 430 (1986), clearly stated that "[b]y its very terms, it [the Sixth Amendment right to counsel] becomes applicable only when the government's role shifts from investigation to accusation." Here, the FBI conducted the interview twenty-two months before a grand jury indicted Defendant. Given the time period between the interview and the indictment, it cannot be said that the government's role shifted from investigation to accusation. Therefore, I recommend that the Court find that Defendant's Sixth Amendment right to counsel was not violated.
Defendant cites Chrisco v. Shafran, 507 F. Supp. 1312 (D. Del. 1981), for the proposition that a right to counsel may attach before the government files formal charges. To the extent Chrisco conflicts with the rule set forth five years later in Burbine, it is overruled.
C. Defendant's right to due process
Defendant next argues that the Government violated her constitutional right to due process by violating her constitutional rights discussed above. Having found that the Government followed the constitutional parameters of the Fifth and Sixth Amendments, I recommend that the Court find that the Government did not violate Defendant's right to due process.
D. Alleged ethical violation
Defendant next maintains that by permitting agents to question her while she was represented by an attorney, the U.S. attorney committed an ethical violation under section 7-104(A)(1) of the ABA Code of Professional Responsibility. The section forbids a lawyer to "communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter, unless he has prior consent of the lawyer representing such other party or is authorized by law to do so."
The Maine Bar Rules, which govern the conduct of attorneys in this District contain a similar provision:
During the course of representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.
Maine Bar Rule 3.6(f).
After reviewing the applicable case law, the Court is satisfied that no ethical violation occurred. In United States v. Balter, 91 F.3d 427, 436 (3rd Cir. 1996), the court considered whether to suppress evidence because Defendant alleged that the government violated a rule very similar to the one at issue here. The court denied the defendant's motion holding that one only becomes a "party" under the rule in a criminal matter when a formal legal or adversarial proceeding is commenced, i.e. by complaint or indictment. Id. Here, the interview occurred twenty-two months before the grand jury indicted Defendant. Therefore, it can hardly be said that Defendant was a "party" under the Rule. Further, even if the Court determined that Defendant was a "party' under the Rule it agrees with the court in Balter that an ordinary pre-indictment investigation is within the "authorized by law" exemption contemplated in the rule. See Balter, 91 F.3d at 436.
As pointed out in Balter, other circuits have similarly found that the Rule similar to the one at issue here does not apply to pre-indictment investigations by government attorneys. See United States v. Powe, 9 F.3d 68 (9th Cir. 1993); United States v. Ryans, 903 F.2d 731 (10th Cir.); United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986); United States v. Dobbs, 711 F.2d 84 (8th Cir. 1983); United States v. Weiss, 599 F.2d 730 (5th Cir. 1979).
Conclusion
For the reasons stated above, I recommend that the Court DENY Defendant's motion to suppress.NOTICE
A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) (1988) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order.