The rationale of Hammad was rejected in United States v. Ryans, 903 F.2d at 734-41 (collecting cases). As this court stressed in United States v. Buda, 718 F. Supp. 1094 (W.D.N.Y. 1989), the critical element in Hammad was the abuse of the grand jury subpoena process by a prosecutor who authorized the issuance of a "counterfeit grand jury subpoena" directed to the defendant and displayed to him by the informant, which ultimately induced him to make incriminating statements. Id., 718 F. Supp. at 1095-96. Although defendants seek to liken one aspect of Morris' conduct (his attempt to trick Harloff into thinking that the police were tracking him and indeed were present near his home on the night of July 16, 1991 — Rothenberg affidavit, sworn to January 23, 1992) to the counterfeit sham subpoena in Hammad, there are two reasons why this analogy is without merit.

Equally significant, since Hammad, no district court in the Second Circuit applying Hammad appears to have found a violation of the disciplinary rule. See e.g. U.S. v. Scozzafava, 833 F. Supp. 203 (W.D.N.Y. 1993); U.S. v. Santopietro, 809 F. Supp. 1008 (D.Conn. 1992); U.S. v. Harloff, 807 F. Supp. 270 (W.D.N.Y. 1992); U.S. v. Buda, 718 F. Supp. 1094 (W.D.N.Y. 1989); see also U.S. v. DeVillio, 983 F.2d 1185 (2d Cir. 1993). In at least one of these cases, the Court found Hammad inapplicable where the prosecutor specifically suggested the topics of conversations that the cooperating witness should have with the targeted individual.

It is significant that since Hammad, neither this Court nor any reported district court decision considering an alleged violation of DR 7-104(A)(1) has found that the Rule had been violated. United States v. Thompson, 35 F.3d 100 (2d Cir. 1994) (finding no violation); De Villio, 983 F.2d at 1192 (same); Schwimmer, 882 F.2d at 29 (conduct fell within "authorized by law" exception); United States v. Gray, 825 F. Supp. 63 (D.Vt. 1993) (although Rule did not apply, if it did, conduct was "authorized by law"); United States v. Santopietro, 809 F. Supp. 1008 (D.Conn. 1992) (conduct was "authorized by law"); United States v. Harloff, 807 F. Supp. 270 (W.D.N.Y. 1992) (same); United States v. Buda, 718 F. Supp. 1094 (W.D.N.Y. 1989) (same); United States v. Chestman, 704 F. Supp. 451 (S.D.N.Y. 1989) (same); United States v. Galanis, 685 F. Supp. 901 (S.D.N Y 1988) (same). In attempting to discern a basis for deciding the matter at hand, we note that both before and after Hammad, this Court has never explicitly considered whether a potential defendant was a "party" under the Rule.

Accordingly, the prosecutor's direct questioning of Schwimmer before the grand jury outside the presence of [the latter's] counsel [was] authorized by law and therefore [did] not violate the Code of Professional Responsibility."), cert. denied, 493 U.S. 1071, 110 S.Ct. 1114, 107 L.Ed.2d 1021 (1990). Compare also United States v. Jamil, 707 F.2d 638, 645-646 (2d Cir. 1983) (in pre-indictment context, where government investigators were not acting as alter egos of prosecutor and prosecutor only became aware of recording after it was made, Customs' agent's action in wiring [non-lawyer] informant and recording conversation with represented suspect did not violate DR 7-104; DR 7-104(A)(1) protects the defendant from the danger of being "tricked" by opposing counsel's artfully crafted questions into giving his case away.); United States v. Buda, 718 F. Supp. 1094, 1095-1096 (W.D.N.Y. 1989) (distinguishing Hammad; prosecutor did not direct the (nonlawyer) informant to arrange and record informant's conversations with the defendant, and in no way attempted to direct the content of, or script, the informant's conversation with the defendant so as to "beguile" the defendant into giving his case away to an alter ego of the prosecutor). Starting on December 13, 1989 — when he pleaded guilty and agreed to cooperate with law enforcement authorities — Attorney Mitchell was a government agent.

See United States v. Thompson, 35 F.3d 100, 104 (2d Cir. 1994) (" Hammad does not support the extension of a rule of professional conduct governing attorneys to an agent performing an investigative function."). If an informant is working with the Government, the prosecutor must "in no way attempt[] to direct the content of [the informant's] conversation with the defendant so as to beguile him into giving his case away." United States v. Buda, 718 F.Supp. 1094, 1096 (W.D.N.Y. 1989). B. Application

Marcus, at 422 (Md. 1994) (citing U.S. v. Scozzafava, 833 F. Supp. 203 (W.D.N.Y. 1993); U.S. v. Santopietro, 809 F. Supp. 1008 (Conn. 1992); U.S. v. Harloff, 807 F. Supp. 270 (W.D.N.Y. 1992); U.S. v. Buda, 718 F. Supp. 1094 (W.D.N.Y. 1989); see also U.S. v. DeVillio, 983 F.2d 1185 (2d Cir. 1993)). Although the Fourth Circuit has not yet considered the matter, the court believes that in all likelihood this circuit would adhere to the majority view.

No district court in this Circuit, which has applied Hammad, has found a violation of the disciplinary rule.See United States v. Santopietro, 809 F. Supp. 1008 (D.Conn. 1992); United States v. Harloff, 807 F. Supp. 270 (W.D.N.Y. 1992); United States v. Buda, 718 F. Supp. 1094 (W.D.N.Y. 1989); United States v. Chestman, 704 F. Supp. 451 (S.D.N.Y. 1989). In Harloff and Buda, supra, Chief Judge Telesca found that the conduct of a prosecutor, who acquiesced to the wiring of an informant, came within the "authorized by law" exception to DR 7-104(A)(1).

There is no evidence in this case that Hoelter had any contact with an Assistant United States Attorney or other INS attorney prior to his meeting with the defendant on March 15, 1989. Cf. United States v. Buda, 718 F. Supp. 1094, 1096 (W.D.N.Y. 1989) (denying suppression even though an Assistant United States Attorney acquiesced in the wiring of an informant because he "in no way attempted to direct the content of his conversation with the defendant so as to beguile him into giving his case away"). Accordingly, DR 7-104(A)(1) is not invoked and suppression should not result under the Hammad decision.

In fact, virtually all of the people with whom Miano spoke had been suggested by Harry Koenig. Cf.United States v. Buda, 718 F.Supp. 1094 (W.D.N.Y.1989) (where Assistant United States Attorney knew defendant was represented and did nothing more than acquiesce in wiring and recording of informant's conversation with defendant, but in no way attempted to direct the content of the conversation so as to beguile defendant in to giving his case away, no violation of DR 7-104(A)(1) and evidence not suppressed.) Nevertheless, this is also not a case where Meirowitz can credibly claim that he was not even aware of Miano's conversations with AC & R employees or his taping activity, or that he specifically directed him not to engage in such activity.

The Court cannot agree with the defendant's position. At the outset, in Hammad, as in two recent District Court cases applying its analysis, United States v. Chestman, 704 F. Supp. 451 (S.D.N.Y. 1989), and United States v. Buda, 718 F. Supp. 1094 (W.D.N.Y. 1989), the defendant was presumed or actually found to have retained counsel prior to or during the period in question and the prosecutor was presumed or actually found to have direct knowledge of such representation before engaging in the alleged improper conduct. In contrast, there is no concrete evidence in the case at bar that the defendant either had actually retained Mr. Keefe or other counsel or that the government had knowledge of any such formal attorney-client relationship.