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UNITED STATES v. WARD

August 8, 1995

UNITED STATES OF AMERICA,
v.
BARNEY WARD, GEORGE LINDEMANN, AND MARION HULICK



The opinion of the court was delivered by: GEORGE M. MAROVICH

 In this opinion, the Court addresses one of the remaining motions filed by Defendants in this case. Defendant Barney Ward has moved to suppress what the Court will label the 1992 Tapes and the 1994 Statements. Ward's motion is not premised on a violation of the Constitution. Instead, Ward seeks suppression on the novel ground that the Government obtained the 1992 Tapes and the 1994 Statements in violation of Rule 4.2 of the Rules of Professional Conduct for the Northern District of Illinois. Rule 4.2 provides:

 
During the course of representing 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 first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law.

 Ward's contention that Assistant United States Attorney Steven Miller violated Rule 4.2 raises issues not yet addressed by the Seventh Circuit or any other court in the Circuit. For the reasons set forth below, the Court will deny the motion to suppress and finds no basis to hold an evidentiary hearing.

 BACKGROUND

 For purposes of this motion, the Court has considered the various affidavits tendered by the parties concerning the contacts between the Government, Ward and counsel for Ward prior to his indictment. The following represents a summary of the facts contained within those affidavits. Notably, the Government argues that, even assuming the truth of the facts asserted by Ward, the Government has not violated Rule 4.2 and suppression is not warranted.

 Ward asserts that he then consulted with his attorney, Victor J. Rocco. Rocco agreed to contact Agent Cullen. Agent Cullen indicates that he received a call on March 4, 1992, from Andrew Heine who indicated that he represented Ward. Beyond this communication, Cullen has no record of Heine ever contacting him again

 On March 9, 1992, Rocco phoned Agent Cullen and informed Cullen that he represented Ward. After describing the nature of the investigation and noting that AUSA Steven Miller was supervising it, Agent Cullen told Rocco that Ward was not a target of the investigation. According to Rocco, Cullen stated that the Government's interest in interviewing Ward was to obtain corroboration of certain facts about Thomas Burns. Rocco concluded the conversation by indicating that he would talk to Ward and get back to Cullen.

 According to Rocco, he contacted Agent Cullen again on March 10, 1992. Agent Cullen does not indicate in his affidavit any phone call from Rocco on March 10, 1992. As asserted by Rocco, he told Cullen that Ward had apparently already answered the pertinent questions. He also told Agent Cullen that he was unwilling to allow Ward to be interviewed directly by other government agents. Rocco suggested that the government would need a subpoena to speak with Ward. Rocco further states that he told Agent Cullen that the Government was not to communicate with Ward and that any communications regarding the investigation should be handled through him.

 According to Agent Cullen, he never informed AUSA Miller about his contact with Rocco or Heine. Further, Cullen states that he first received information indicating Ward's alleged involvement in the crimes under investigation in June 1992. *fn1" At this time, Paul Valliere, a target of the investigation, revealed in an interview that Ward had arranged for him to hire Burns to kill his horse. In addition to Valliere and Agent Cullen, AUSA Miller and Anton Valukas, counsel for Valliere, were also present at this interview. By the time of Valliere's revelation, Agent Cullen indicates that he had forgotten about his contact with Victor Rocco due to the massive nature of the investigation. Prior to Valliere's statements implicating Ward, the Government contends that its investigation did not focus on Ward because their principal cooperating witness, Burns, had steadfastly denied that Ward had any involvement in the matters under investigation.

 The 1992 Tapes

 As part of Valliere's agreement to cooperate in the investigation, he agreed to surreptitiously record conversations with Ward. On June 8, 1992, Valliere recorded a telephone conversation with Ward. Valliere also recorded two more conversations with Ward on October 5, 1992, and November 20, 1992. Rocco maintains that he was never contacted by any representative of the Government to seek his permission ...


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