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allowing government to conduct a noncustodial interview of an unindicted individual believed to have retained counsel in a related civil proceeding
Summary of this case from In re Criminal Investigation of DoeOpinion
CRIMINAL NO. 08-10215-RGS.
August 7, 2008
ORDER ON GOVERNMENT'S MOTION TO UNDERTAKE EX PARTE CONTACT
The government seeks an ex parte order authorizing special agents to conduct a non-custodial interview of an unindicted individual believed to have retained counsel in a related civil proceeding. I will allow the motion subject to the conditions imposed by Judge Saris In re Criminal Investigation of John Doe, Inc., 194 F.R.D. 375 (D. Mass. 2000).
I do not understand the witness to have retained counsel in a criminal (as opposed to a civil) matter or to be the subject of charges to which the Sixth Amendment right to counsel has attached. While I recognize the authority of United States v. Hammad, 858 F.2d 834 (2d Cir. 1988), I note that most of the decided cases have rejected an absolutest view of ABA Model Code of Prof'l Responsibility DR 7-104(A)(1). See United States v. Talao, 222 F.3d 1133, 1140 (9th Cir. 2000) (endorsing Hammad, but holding that state ethical rules did not bar a prosecutor from meeting with an employee of a represented corporation who claimed that she was being pressured to commit perjury — "It would be an anomaly to allow the subornation of perjury to be cloaked by an ethical rule"). See also United States v. Ryans, 903 F.2d 731, 740 (10th Cir. 1990) (rejecting application of DR 7-104(A)(1) to the undercover investigation of an unindicted suspect who had retained counsel); United States v. Balter, 91 F.3d 427, 436 (3rd Cir. 1996) (same, under the New Jersey adaptation). See also United States v. Heinz, 983 F.2d 609, 613 (5th Cir. 1993) (pre-indictment investigatory conduct by special agents or informants is exempt from DR 7-104(A)(1)); United States v Sutton, 801 F.2d 1346, 1366 (D.C. Cir. 1986) (same); United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir. 1983) (same);State v. Smart, 622 A.2d 1197, 1213-1214 (N.H. 1993) (same, state rule).
See Mass Rules of Prof'l Conduct R. 4.2, the Massachusetts analog of the ABA Model Rule.
In an analogous context, the Supreme Court has firmly held that the Sixth Amendment right to counsel is "offense specific" and applies only to pending charges. Maine v. Moulton, 474 U.S. 159, 179-180 (1985); McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). Consequently, a represented defendant is not insulated from surreptitious government investigation of new crimes, even those that are related to the trial of the indicted offense, such as witness tampering. See United States v. Mir, 525 F.3d 351, 356 (4th Cir. 2008) ("The Sixth Amendment simply does not provide defendants with a license to commit additional crimes with impunity, in this case crimes that bear fundamentally or the ability of the criminal justice system to do its job.").
It would be something of an anomaly to provide greater protections to persons who are represented in civil cases than those afforded to criminal defendants. Mass Rules of Prof'l Conduct R. 4.2 specifically permits ex parte contacts by government attorneys with represented "persons" when "authorized by law," that is, by a court, to do so. Based on the nature of the underlying allegations, which strike at the core functions of the justice system, this case is the poster child for the sensibleness of the exception carved out of the Rule. Consequently, the government's motion is ALLOWED.
SO ORDERED.