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UNITED STATES v. INFELISE

July 15, 1991

UNITED STATES OF AMERICA
v.
ROCCO ERNEST INFELISE, ROBERT BELLAVIA


Ann Claire Williams, United States District Judge.


The opinion of the court was delivered by: WILLIAMS

ANN CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE

 Defendant Infelise filed a motion for an evidentiary hearing, and to suppress statements made by him to William Jahoda after the issuance of grand jury subpoenas to him and Jahoda. Defendant Bellavia brought a motion for additional discovery with respect to tape recorded statements made by him to Jahoda after the issuance of the same subpoena, to suppress statement the same statements, and for a hearing on the above matters. For the foregoing reasons, the defendants' motions are denied.

 Defendant Infelise Suppression Motion

 The court first considers defendant Infelise's motion to suppress. Throughout the grand jury investigation of this matter defendant Rocco Infelise has been represented by the Law Offices of Patrick Tuite, and has so informed the Assistant U.S. Attorneys handling the investigation. Mr. Infelise informed the government that he wished to make no statement to the government, and that all inquiries should be directed to his attorney.

 Defendant claims that notwithstanding these facts, the government arranged for meetings between William Jahoda, who was then cooperating with the federal government, and Mr. Infelise, and that the government had William Jahoda engage in conversations with Mr. Infelise, some or all of which were secretly taped by Mr. Jahoda. Prior to one of these conversations, the government issued grand jury subpoenas to Mr. Jahoda and to Mr. Infelise, and had Mr. Jahoda engage in conversations with Mr. Infelise about the grand jury subpoenas. The subpoenas served to Mr. Infelise were served to Mr. Tuite, as attorney for Mr. Infelise.

 Mr. Infelise contends that the Jahoda subpoena was a "sham subpoena" since the government knew that it need not issue a subpoena to Mr. Jahoda, since he was cooperating with the government. Defendant argues that the subpoena was issued so that Mr. Jahoda's conversation with Infelise and others would have a semblance of legitimacy. Similarly, the defendant argues that the subpoenas issued to him were issued "for the purpose of having a subject matter about which William Jahoda would speak with Infelise and others."

 Defendant has moved for a hearing on the above allegations, and a motion to suppress any statements obtained by William Jahoda in conversations with Rocco Infelise in 1989. *fn1" Defendant contends that the government violated Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility (DR 7-104(A)(1)) in obtaining the statements. DR 7-104(A)(1) states:

 
During the course of his representation of a client a lawyer shall not:
 
(1) 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 the prior consent of the lawyer representing such other party or is authorized by law to do so. *fn2"

 While the defendant rightly argues that Hammad supports his position on the applicability of the rule, every other circuit which has considered a motion to suppress under similar factual circumstances has found that the rule does not apply to non-custodial, investigative processes that occur before the initiation of criminal proceedings. In United States v. Ryan s, 903 F.2d 731, 740 (10th Cir. 1990), the court held that "DR 7-104(A)(1)'s proscriptions do not attach during the investigative process before the initiation of criminal proceedings." See also, United States v. Sutton, 255 App. D.C. 307, 801 F.2d 1346, 1365-1366 (D.C. Cir. 1986), and United States v. Dobbs, 711 F.2d 84, 86 (8th Cir. 1983). Similarly, in United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir. 1983), the Eighth Circuit Court of Appeals rejected the defendant's argument that once he retained counsel for a grand jury investigation, under DR 7-104(A)(1) the government could only communicate with him through his attorney, and not through an informant:

 
We reject Fitterer's contention. 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.

 This court agrees with the reasoning of these other circuits, and finds that under the facts of this case, the conversations between defendant Infelise and Mr. Jahoda cannot be suppressed. *fn3" Defendant Infelise's statements to Mr. Jahoda were made after a subpoena had been served upon him, during the non-custodial investigative ...


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