themselves and asked appellant if he would answer their questions regarding an ongoing investigation. During the subsequent noncustodial interview, the agents sat a few feet away from the appellant in his living room while they politely asked him questions about his conduct. They informed him that he faced possible prosecution, imprisonment and forfeiture. After denying any involvement in the fraudulent acts outlined by the agents, the appellant ultimately confessed to them. Id. at 774-75.
The Seventh Circuit reviewed the foregoing circumstances and concluded that the agents' conduct could not be characterized "as anything more than vigorous, persistent questioning, conduct which our court has held does not vitiate an otherwise valid confession." Id. at 775. That same conclusion holds for the conduct of the agents during their interview with defendant Baker in this case. Baker invited the agents into his home. He answered their questions freely, and sought protection for his family in exchange for his cooperation. The preponderance of the evidence reveals that he freely chose to make his statements to the agents.
Baker's final argument is that this court should exercise its supervisory powers to suppress his statements because AUSA Gillogly rendered legal advice to Baker during the scope of the interview. Baker claims that AUSA Gillogly's conduct violated DR 7-104(a)(2) of the Illinois Code of Professional Responsibility, and that this provides an independent basis for suppressing the statements.
Disciplinary Rule 7-104(a)(2) provides that "during the course of his or her representation of a client[,] a lawyer shall not . . . give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his [or her] client." Baker's argument starts with the proposition that the Disciplinary Rule is applicable to Government attorneys. See United States v. Hammad, 858 F.2d 834 (2d Cir. 1988). He goes on to urge the court to enforce the Rule by exercising its supervisory powers to suppress the statements made subsequent to the violation. Id. But see United States v. Scarpelli, 713 F. Supp. 1144, 1159-61 (N.D. Ill. 1989).
This motion raises significant issues regarding the reach of the Disciplinary Rules and the scope of the court's supervisory authority. However, the court need not reach these questions because the testimony at the hearing establishes that none of statements made by the AUSAs constituted "legal advice" as that term is contemplated by the Rule.
Baker claims that the following statements constituted legal advice: 1) AUSA Gillogly's statement that Baker was facing possible charges, imprisonment, and forfeiture; 2) an unidentified agent's statement that Baker was probably ineligible for the appointment of a public defender, and; 3) AUSA Gillogly's act of chuckling at Baker's entrapment defense question and telling Baker that he hoped that that would be his defense. On their face, none of these statements can be fairly understood to constitute legal advice to Baker.
In point of fact, all of the parties agree that when Baker asked whether he should retain an attorney, AUSA Gillogly explicitly stated that he could not provide advice on that issue. Baker's motion to suppress on the basis of the alleged disciplinary rule violation is denied.
III. CALI'S MOTION TO SUPPRESS
Cali seeks to suppress his statements made to FBI agents and AUSAs on the grounds that they were given involuntarily. Alternatively, he seeks to have the court invoke its supervisory powers to suppress the statements because the AUSA allegedly offered legal advice during their interview. At the hearing on the motion, the Government presented four witnesses on its behalf. Cali did not present any witnesses or evidence in support of his contentions.
A. Findings of Fact on Cali's Motion
1. On the morning of January 18, 1989, James Sledz, a trader who turned Government informant, informed Cali that FBI agents wanted to speak with him at Sledz's apartment in the Presidential Towers complex. In doing so, Sledz handed Cali a handwritten note warning the defendant not to say anything because Sledz was wired with a microphone.
2. Cali agreed to meet with Sledz in the McDonald's restaurant in the Presidential Towers apartment complex later that day after the closing of the Exchange.
3. At the time of this meeting, AUSA Gillogly, AUSA Mark Pollack, Agent Volk, Special Agent Charles Near, and Brian Sledz were waiting in Sledz's apartment. After meeting with Cali, James Sledz called up to the apartment to inform the group that Cali was reluctant to come upstairs.
4. Brian Sledz and Agent Volk responded by going to the lobby to persuade Cali to come upstairs. In the lobby, Cali addressed Volk initially by saying "Hi Peter or Dietrich, or whatever your name is."
5. Agent Volk told defendant about the investigation and that it was important for him to come upstairs to hear what the agents had to say. Cali agreed to do so at approximately 2:45 p.m.
6. AUSA Gillogly addressed Cali first by telling him that he was free to leave the apartment anytime he wanted. He also told Cali that he was not obligated to make any statements if he did not want to.
7. Gillogly then informed Cali about the investigation and the recordings of his possibly illegal trades. Gillogly told Cali that he could be charged with RICO, mail and wire fraud, and violations of the Commodities Exchange Act. Gillogly further explained to Cali that he could be facing a twenty-year sentence under RICO and possible forfeiture.
8. At some point in the interview, Cali asked whether he needed a lawyer. Gillogly responded by telling him that the agents were not in a position to advise him on that matter; it was a decision he was going to have to make for himself.
9. Cali proceeded to answer the agents' questions. He agreed to cooperate with them in the investigation.
10. The interview lasted for an hour to an hour and one half, until Cali noted that he had to meet his wife because they were buying a house the next day. Cali assured the agent that he wanted to continue cooperating with them.
B. Conclusions of Law on Cali's Motion
Cali contends that his statements to the agents were made against his will. He begins by arguing that his meeting with the agents constituted a custodial arrest, thus requiring the agent to read him his Miranda rights. This contention is unavailing. The testimony establishes that Cali freely chose to talk to the agents. He agreed to proceed up to the apartment to continue the discussion with the AUSAs and other agents. Although he was told that Cali was free to leave, he voluntarily submitted to questioning by the agents. There is no evidence that Cali was ever prevented from ending the interview at any time. Hocking, 860 F.2d at 773.
The testimony also establishes that Cali ultimately cooperated with the agents based upon his own free will. There is no evidence of the type of coercive police activity required to find that the agents overbore defendant's will. Id. at 774-75. Finally, Cali's motion for suppression based on DR 7-104(a)(2) is unavailing because there is no evidence that the AUSAs gave him any legal advice during the interview. An AUSA's act of informing Cali of the potential charges against him does not constitute "legal advice" within the meaning of the Rule. Accordingly, Cali's motion to suppress is hereby denied.
IT IS THEREFORE ORDERED that the motions of defendants to suppress their statements are denied.
Dated: April 19, 1990