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 to communicate with Ward. These three taped conversations are the 1992 Tapes Ward seeks to suppress.
The 1994 Statements
On February 16, 1994, AUSA Miller, and Special Agent Cullen, accompanied by four other FBI agents, showed up at a trailer camp in Wellington, Florida, where Ward was staying while competing in a horse show in the area. According to Ward, AUSA Miller informed him that he was a target of the investigation and told him that the Government planned to indict him in the immediate future. Ward asserts that AUSA Miller told him that the Government's case was overwhelming and that the purpose of the meeting was for him to consider his cooperation options. Ward states that he told AUSA Miller that he was represented by counsel that his counsel had spoken to Agent Cullen on his behalf. Ward asserts that Cullen denied speaking to his attorney.
Cullen states that until Ward mentioned the name, he had forgotten about Victor Rocco. Cullen does not indicate whether he told AUSA Miller about his recollection. Agent Cullen states that after Ward mentioned Rocco's name, Ward was asked whether he wished to continue to speak with AUSA Miller and Cullen. Ward stated that he would talk to them and the interview continued. On July 26, 1994, the grand jury indicted Barney Ward on charges of conspiracy, wire fraud, mail fraud and obstruction of justice.
The Supreme Court has recognized, albeit in a different context, that "federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat v. United States, 486 U.S. 153, 160, 100 L. Ed. 2d 140, 108 S. Ct. 1692 (1988) (granting district courts substantial latitude in resolving potential conflicts of interest due to multiple representation of defendants in criminal proceedings). Defendant Ward argues that AUSA Miller orchestrated a clandestine campaign to obtain admissions from Ward despite knowing that Ward was represented by counsel. Ward contends that the 1992 Tapes and the 1994 Statements must be suppressed as a sanction for AUSA Miller's violation of Rule 4.2. The Government has taken the position that (1) the bulk of authority does not support application of Rule 4.2 to pre-indictment investigations, (2) even if Rule 4.2 applies, AUSA Miller did not violate it, and (3) even if AUSA Miller did violate Rule 4.2, suppression of the evidence is not the proper remedy. The precise issues before this Court are (1) whether Rule 4.2 applies to federal prosecutors prior to indictment in the context of non-custodial contacts with represented persons and, if so, (2) whether AUSA Miller violated the Rule in this case such that suppression is the proper remedy.
Before we address these issues, a brief comment on the history and purpose of Rule 4.2 is necessary. Rule 4.2 and its predecessors have existed since 1908 but only recently have defense attorneys urged that the anti-contact rule should apply in criminal proceedings to bar certain contacts by prosecutors. Grievance Committee for the Southern District of New York v. Simels, 48 F.3d 640, 647 (2d Cir. 1995) (considering application of Rule 4.2 to defense attorney's contact with represented co-defendant). Among the many justifications for such rules is the need to protect "a defendant from the danger of being tricked into giving his case away by opposing counsel's artfully crafted questions." United States v. Jamil, 707 F.2d 638, 646 (2d Cir. 1983). Notwithstanding this significant policy goal, the Simels court concluded that the origin and scope of the anti-contact provision reveal that it is primarily a rule of professional courtesy. In Simels, the Second Circuit preceded its careful review of the history of DR 7-104(A)(1) with the following wise admonition: "The conceded power of the federal district courts to supervise the conduct of attorneys should not be used as a means to substantially alter federal criminal law practice." Simels, 48 F.3d at 644. With this in mind, we proceed to analyze Ward's arguments.
Defendant Ward places tremendous reliance on an earlier Second Circuit case, United States v. Hammad, 858 F.2d 834 (2d Cir. 1988), cert. denied, 498 U.S. 871, 112 L. Ed. 2d 154, 111 S. Ct. 192 (1990). As far as this Court's research discloses, Hammad represents one of the only opinions finding that a prosecutor had violated DR 7-104(A)(1), predecessor of Rule 4.2. See also Simels, 48 F.3d at 649 ("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.") Even in the Hammad opinion upon which Ward relies, the Second Circuit refused to suppress the evidence obtained through that violation.
Since Hammad appears to be the only major opinion finding a violation, a brief review of the Second Circuit's holding in that case is in order. In Hammad, the prosecutor issued a subpoena to an informant, "not to secure his attendance before the grand jury, but to create a pretense that might help the informant elicit admissions from a represented suspect." 858 F.2d at 840. Although both Rule 4.2 and its predecessor DR 7-104(A)(1) apply only to attorneys, the Second Circuit reasoned that the prosecutor's use of a sham subpoena rendered the informant the prosecutor's alter ego. Id. As a result, the Second Circuit found the communications prohibited under the Rule.
Before reaching this conclusion, however, the Hammad court considered the close question of whether and to what extent DR 7-104(A)(1) applies in the investigatory stages of a criminal prosecution. The Government argued, as it does here, that the anti-contact rule is coextensive with the Sixth Amendment and thus is not effective until initiation of formal adversary proceedings -- preliminary hearing, indictment, information or arraignment. Several courts before and after Hammad have adopted this view. See, e.g., United States v. Powe, 9 F.3d 68, 69 (9th Cir. 1993); United States v. Ryans, 903 F.2d 731, 740 (10th Cir.), cert. denied, 498 U.S. 855, 112 L. Ed. 2d 118, 111 S. Ct. 152 (1990); United States v. Sutton, 255 U.S. App. D.C. 307, 801 F.2d 1346, 1366 (D.C. Cir. 1986); United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.), cert. denied, 464 U.S. 852, 78 L. Ed. 2d 150, 104 S. Ct. 165 (1983); United States v. Kenny, 645 F.2d 1323, 1339 (9th Cir.), cert. denied, 452 U.S. 920, 69 L. Ed. 2d 425, 101 S. Ct. 3059 (1981); United States v. Infelise, 773 F. Supp. 93, 94-95 (N.D. Ill. 1991) (Williams, J.).
These courts typically base their holdings on two major themes. First, the courts quite correctly foresee the potentially drastic impact of a broad application of Rule 4.2 on legitimate and necessary tactics involved in the investigation of crime. See, e.g., Ryans, 903 F.2d at 739. Second, the courts often interpret the use of the term "party" in DR 7-104(A)(1) to require formal adversary proceedings before the rule applies.
In keeping with these restrictive interpretations of DR 7-104(A)(1), the commentary to ABA Model Rule 4.2 explains that:
Communications with represented criminal suspects prior to initiation of formal judicial proceedings as part of a noncustodial investigation by government agents or with informants generally are not considered subject to the anticontact rule. The rationale is usually that the rule is coextensive with the accused's Sixth Amendment right to counsel, and that the contact is within the "authorized by law" exception.