be present before the government could interview a co-conspirator who was willing to provide information. This curious result finds no support in any of the authorities cited by Alra. Its principal citation is to the district court case of U.S. v. Kilpatrick, 594 F. Supp. 1324, 1350 (D. Colo. 1984), where the court found that the "high level bank employees" interrogated by the government fell "within the ambit of the attorney-client relationship and must be considered, in essence, the corporation for purposes of communications." Id. at n.23.
But the logic of Alra's argument goes much further than Alra has indicated. Surely the Sixth Amendment entitles a represented defendant to refuse to be interviewed by the government altogether, not simply to insist that his counsel be present for the interview. So here, if counsel for Alra is entitled to notice and an opportunity to be present, how could it be argued that counsel would not also be entitled to prohibit the interviews altogether?
The court believes that Alra is invoking a non-existent rule. Nothing prevents the government from interviewing, without notice to Alra, present or former employees and present nonmanagerial employees of Alra.
The exception for "managerial" employees has to do with another possible meaning of "bind." It is conceivable that a high level employee, during the course of an interview, could make statements which could be offered in evidence by the government as "admissions" by the corporation.
The court agrees with Alra that government interviews of managerial employees for the purpose of eliciting statements that would be independently admissible against Alra would implicate the Sixth Amendment. Alra would be entitled to notice and an opportunity to be present. Moreover, as noted above, it would seem that Alra would also have a right to instruct the employee not to make any admissions.
Alra claims to be concerned about interviews of employees whose statements the government will contend constitute admissions by the corporation. From the government's response to Alra's motion, it appears that the government has no such interviews in mind. If the court is incorrect about this, the government should immediately make that fact known, so that the court can deal with the unusual question that would be presented.
The defendant Alra's motion to limit pretrial access to government trial witnesses is denied, without prejudice to the renewal of the motion should the government intend to elicit statements that would be offered in evidence as admissions by Alra.
DATED: November 14, 1995
John F. Grady, United States District Judge