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MOTIONS TO DISMISS THE INDICTMENT

LIMITATIONS:

Counsel should determine at the outset whether the date of the indictment occurred later than that statute of limitations. Most offenses must be charged with the five year statute of limitations set forth in Title 18 United States Code, section 3282.

“Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years after such offense shall have been committed.” 18 United States Code, Section 3282.

“Committing” or “conspiring” to commit offenses in violation of Title 18 United States Code, sections 1014 and 1344 are barred by a ten year statute of limitations set forth in Title 18 United States Code, section 3293.

“No person shall be prosecuted, tried or punished for a violation of, or conspiracy to violate- – (1) section 215, 656, 657, 1005, 1006, 1007, 1008, 1014, or 1344; …unless the indictment is returned or the information is filed within ten years after the commission of the offense.” Title 18 United States Code, section 3293.

This statute of limitation does not mention or refer to “causing” or “aiding and abetting” an offense under Title 18 United States Code, section 2. It does expressly apply to conspiracies to commit the listed offenses. Thus the ten year statute of limitations does not apply to causing the illegal action of another.

The United States Supreme Court requires that statutes of limitation be construed in favor of the defendants.

“Criminal statutes of limitation are to be liberally interpreted in favor of repose.” U.S. v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971).

Thus counsel should determine whether the five year statute of limitations expired before the indictment was returned. If not the indictment must be dismissed as barred by limitations.

 

PRE-INDICTMENT DELAY:

The due process clause of the Fifth Amendment requires dismissal of an indictment for delay if such delay results in a violation of fundamental concepts of justice or the community’s sense of fair play. In order to determine whether a due process violation has occurred, the Government’s reasons for the delay must be weighed against the prejudicial effects of the delay on the Defendant. US. v. Crouch, 51 F.3d 480 (5^th Cir. 1995), cert. denied, U.S. v. Marion, 30 L.Ed. 2d 468 (1971); US v. Townley, 665 F.2d 579, 581-82 (5^th Cir.), cert. denied, 456 U.S. 1010 (1982); U.S. v. Hendricks, 661 F.2d 38, 39-40 (5^th Cir. 1981); U.S. v. Nixon, 634 F.2d 306, 310 (5^th Cir.), cert. denied, 454 U.S. 828 (1981); U.S. v. Willis, 583 F.2d 203, 207-208 (5^th Cir. 1978).

The showing of prejudice, however, does not end a pre-indictment delay inquiry. The Supreme Court has stated that “proof of prejudice is generally a necessary but not sufficient element of a due process claim … [T]he due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” U.S. v. Lovasco, 52 L.Ed.2d 752, 759 (1977); U.S.

1. Lindstrom, 698 F.2d 1154, 1158 (11^th Cir. 1983). A defendant’s showing of prejudice triggers a ‘sensitive balancing of the government’s need for an investigative delay … against the prejudice asserted by the defendant.” U.S. v. Brand, 556 F.2d 1312, 1317 n.7 (5^th Cir. 1977), cert. denied, 434 U.S. 1063 (1978). For example, a delay caused by a good faith ongoing investigation will generally not be considered a due process violation. U.S. v. Lovasco, 52 L.Ed.2d 752 (1977). However, delay that prejudices a defendant will require dismissal of an indictment if the reason for the delay is a sinister one. “Sinister” reasons include using the delay to gain tactical advantage over the accused. U.S. v. Marion, 30 L.Ed.2d 468, 481 (1971).

 

Deliberate action by the Government designed to gain a tactical advantage occurs when the prosecution engages in reckless disregard of circumstances known to it that suggest that there is an appreciable risk that delay would impair the ability of the defendant to mount an effective defense. U.S. v. Lovasco, 52 L.Ed. 2d 752, 762 n.17 (1977).

As stated by the court in U.S. v. Brand, 556 F.2d 1312, 1317 n.7 (5^th Cir. 1977), the final determination of the issue requires a balancing of the respective interests by the courts:

“The parties argue in their belief about whether Marion, as interpreted by this Court, requires the defense to show both actual prejudice and intentional tactical delay by the prosecutor before a due process violation may be found. The dispute is settled by United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044 (1977), which holds that prejudice and the governmental interests not amounting to an intentional tactical delay will automatically justify prejudice to a defense. On the contrary, the court engages in a sensitive balancing of the government’s need for an investigative delay in Lovasco against the prejudice asserted by the defendant.

…Lovasco indicates that such a requirement [of intentional conduct] misreads Marion, which stated:

‘We need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delay requires the dismissal of the prosecution.’

United States v. Marion, 404 U.S. at 324, 92 S.Ct. at 465. According to the Supreme Court, that statement remains true today. Lovasco, 431 U.S. 783, 97 S.Ct. 2044. Clarity will come only on a case-by-case basis.” U.S. v. Brand, 556 F.2d 1312, 1317 n.7 (5^th Cir. 1977).

 

PREJUDICE OF GRAND JURY:

Defendants are entitled to indictment “returned by a legally constituted and unbiased jury.” Costello v. U.S. 350 U.S. 359, 363, 76 S.Ct. 406, 409 (1956).

If there is a reason to believe the grand jury foreman knows of the Defendants and where there is reason to believe the grand jury foreman is adverse to the institution with which the

Government associates the Defendants, this Court should determine whether the Defendants constitutional guarantees of an independent and impartial investigative body have been abrogated necessitating dismissal of the indictment.

“The fifth amendment provides that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of the grand jury.” All that is constitutionally required of an indictment is that it be “returned by a legally constituted and unbiased jury.” United States v. Heffington, 682 F.2d 1075, 1080 (5^th Cir. 1982) (quoting Costello

1. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956)).” U.S. v. Mitchell, 777 F.2d 248 (5^th Cir. 1985).

If a grand juror knows a defendant or is adverse to the institution with which the Defendants have been associated by the Government, the grand jury is biased in violation of the constitution.

“A look at the grand jury through the records reveals that it was composed of people from all walks of life, some of whom were former union members. The judge immediately and in the presence of all of the panel eliminated six prospective grand jurors when indications of prejudice appeared. No grand juror personally knew petitioner or was shown to be adverse to the institutions with which petitioner is generally identified.” Beck v. Washington, 82 S.Ct. 955, 959, 369 U.S. 541 (1962).

 

FAILURE TO STATE AN OFFENSE:

An Indictment not only cites statutory elements it “must state the species, -it must descend to particulars.” U.S. v. Diecidue, 603 F.2d 535, 547 (5^th Cir. 1979) [quoting U.S. v. Cruikshank, 23 L.Ed. 588 (1875)].

“[I]t is not sufficient that the indictment shall charge the offense in the same generic terms as the definition; ….it must descend to particulars.

“…Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.” Russell v. U.S., 8 L.Ed.2d 240, 251-252 (1962).

INSUFFICIENT FACTUAL PARTICULARITY TO ENSURE PROSECUTOR WILL NOT FILL IN ELEMENTS WITH FACTS NOT CONSIDERED BY THE GRAND JURY

BILL OF PARTICULARS WILL NOT CURE INVALIDITY

If an indictment fails to specify the offense with sufficient particularity, Defendants have no assurances that the prosecutor will not fill in the factual elements with facts not considered by the grand jury. This is why a bill of particulars will not remedy a short fall in pleading. U.S. v. Russell, 8 L.Ed.2d 240 (1962)[indictment cannot be cured by bill of particulars because of the danger “a defendant could …be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.”]

“[I]t is a settled rule that a bill of particulars cannot save an invalid indictment. …To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convinced on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.” U.S. v. Russell, 8 L.Ed.2d 240, 254-255 (1962).

In U.S. v. Abrams, 539 F. Supp. 378 (S.D.N.Y. 1982), the court was confronted with an obstruction of investigation [18 U.S.C. 1510]. The charges tracked the statute and alleged that they occurred during a certain time period in the Southern District of New York. The court concluded:

“[T]he indictment clause of the Fifth Amendment [] requires that an indictment contain some amount of actual particularity to endure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury. It is thus the Indictment Clause of the Fifth Amendment that leads us to conclude that the counts in question must be dismissed.

“We are mindful of the precept that indictments ‘which track the language of a statute and , in addition, do little more than state time and place in approximate terms’ are generally legally sufficient. We not however, that the indictments that have been upheld under this precept have been more factually specific than the counts considered here.” U.S. v. Abrams, 539 F. Supp. 378, 385 (S.D.N.Y. 1982)

The indictment should be dismissed for failure to adequately apprize the Defendants of the charges they must meet.

 

VAGUENESS:

 Rule 7(c)(1) states in pertinent part: ‘[t]he indictment . . . shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged.”

To explain this further, “an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” See Hamling v. United States, 418 U.S. 87, 117 (1974); Russell v. United States, 369

U.S. 749, 766 (1962). See also United States. v. Goodman, 605 F.2d 870, 884 (5^th Cir. 1979) (noting the general principles to determine the sufficiency of an indictment). An indictment is sufficient if it alleges that a defendant “attempted” to commit a crime without alleging what specific, overt act, necessary to prove the crime, the defendant committed. United States v. Resendiz-Ponce, 127 S. Ct. 782 (2007).

Applying the second prong of Hamling v. United States, 418 U.S. 87, 117 (1974), if a Defendant cannot plead to an acquittal or conviction as a bar to any future prosecution because the Defendant cannot determine by the general charges what act or acts he is accused of committing. The charge does not descend to specifics regarding the offense conduct committed by the defendant and is not being specific enough a charge to act as a bar to subsequent prosecutions. Failing to inform the Defendant as to the charge also prevents him from entering a “voluntary and knowing” plea. Strickland v. Washington, 466 U.S. 668 (1984).

Charge one “not framed” to apprize the Defendant “with reasonable certainty, of the nature of the accusation against [him], are defective, although it may follow the language of the statute.” United States v. Simmons, 96 U.S. 360, 362 (1877). Therefore, the allegations in Count One must be dismissed since they are so vague, ambiguous, and indefinite that they do not inform the Defendant of the nature of the case against him, prevent him from adequately preparing a defense, and do not prevent the possibility of a subsequent prosecution for the same offense.

OUTRAGEOUS GOVERNMENT CONDUCT:

A motion to dismiss the Indictment is appropriate on ground of outrageous government conduct. For example, if an investigation constitutes a fraud on the State Courts. Ostensibly, federal agents permitted criminal cases to be resolved illegally, pursuant to the payment of bribes in the criminal courts and, thus, committed a fraud on those courts. The FBI’s agent was an active participant in this fraud. The FBI employed other District Attorney Office employees in perpetration of fraud. The FBI allowed crimes to be committed before sitting State, Count and District Judges in actual court proceedings. This constitutes outrageous government conduct which calls for the dismissal of this prosecution.

In U.S. v. Taylor, 956 F.Supp. 662 (D.S. Carolina 1997) the Court dismissed the indictments pursuant to its supervisory power because the government, among other things, withheld Brady material from the defense and lied to the court about this fact. Finding that the investigation began appropriately but because of overzealousness and political pressure to weed out misconduct in the state house caused it to lose its way and the government committed a fraud on the court, the district judge dismissed the case pursuant to his supervisory power. This case was reversed because the defendants did not show that they were prejudiced by this misconduct.

U.S. v. Derrick, 163 F.3d 700 (4^th Cir. 1998).

“Although the requirement of outrageousness has been stated in several different ways by various courts, the thrust of each of these formulations is that the challenged conduct must be shocking, outrageous, and clearly intolerable. See e.g., Russell, 411 U.S. at 432, 93 S.Ct. at 1643 (conduct must violate “ ‘fundamental fairness’ “ or “ ‘shock[] the universal sense of justice,’”) (quoting Kinsella, 361 U.S. at 246, 80 S. Ct. at 304); Nichols, 877 F.2d at 827 (conduct must be “shocking and outrageous and reach [] an ‘intolerable level’ “) (quoting Russell, 411 U.S. at 431- 32, 93 S.Ct. at LM {99} 1643); United States v. Ryan, 548 F.2d 782, 789 (9^th Cir.) (conduct must be “so grossly shocking and so outrageous as to violate the universal sense of justice”), cert. denied, 429 U.S. 939, 97 S.Ct. 354, 50 L.Ed.2d 308 (1976), and cert. denied, 430 U.S. 965, 97 S.Ct. 1644, 52 L.Ed.2d 356 (1977).

The cases make it clear that this is an extraordinary defense reserved for only the most egregious circumstances. It is not to be invoked each time the government acts deceptively or participates in a crime that it is investigating. Nor is it intended merely as a device to circumvent the predisposition test in the entrapment defense. See United States v. Warren, 747 F.2d 1339, 1341-42 (10^th Cir. 1984) (“the outrageous governmental conduct defense is manifestly reserved for only ‘the most intolerable government conduct,’”) (quoting Jannotti, 673 F.2d at 608); Ryan, 548 F.2d at 789 (“the due process channel which Russell kept open is a most narrow one”).

Government agents often need to play the role of criminals in order to apprehend criminals, and this role occasionally entails unseemly behavior. Wide latitude is accorded the government to determine how best to fight crime. See Russell, 411 U.S. at 435, 93 S.Ct. at 1644 (noting danger of “giv[ing] the federal judiciary a ‘chancellor’s foot’ veto over law enforcement practices of which it did not approve”); see also United States v. Esch, 832 F.2d 531, 539 (10^th Cir. 1987), cert. denied, 485 U.S. 908, 108 S.Ct. 1084, 99 S.Ed.2d 242 and cert. denied, 485 U.S. 991, 108 S. Ct. 1299, 99 L.Ed.2d 509 (1988).

FN5. These two factors are not necessarily exclusive. They appear to represent the primary contexts in which the defense has been successful to date, although other situations have arisen in which government conduct has been held to be outrageous. See e.g., Marshank, 777 F. Supp. At 1524 (outrageous conduct where agents induced defendant’s attorney to help investigate, interrogate, and arrest defendant).” U.S. v. Mosley, cause number 90-8100 (10^th Cir. 1992).

 

INTERFERENCE WITH RIGHT TO COUNSEL:

To compel represented witnesses to appear before the prosecutor for the purpose of disparaging their counsel outside that lawyer’s presence, violates the Code of Professional Responsibility and the Rules Court.

Disciplinary Rule 7-104(A)(1) of the ABA Model Code of Professional Responsibility, expressly provides that:

“During the course of his representation of a client a lawyer shall not: Communicate or cause another to communicate on the subject of that representation 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.”

Similarly, Rule 4.2 of the ABA Model Rules of Professional Conduct specifically states that:

“In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”

More specifically, the Rules of Professional Conduct of the State of Texas provide in rule 4.02 that:

“(a) In representing a client, a lawyer shall not communicate or cause or encourage another to communicate about the subject of the representation with a person…the lawyer knows to be represented by another lawyer regarding that subject, unless the lawyer had the consent of the other lawyer or is authorized to do so.”

 

ETHICAL STANDARDS INCORPORATED INTO LOCAL FEDERAL COURT RULES

The Local Rules for the United States District Courts of the Western District of Texas, expressly provide that lawyers practicing before these Courts must abide by the ethical rule forbidding contact with represented individuals. Rule AT-4 of the Local Rules for the United States District Court for the Western District of Texas mandates that an attorney’s conduct before the courts of the Western District of Texas is governed by the Rules of Professional Conduct of the State Bar of Texas and Code of Professional Responsibility of the American Bar Association.

“Every member of the bar of this Court and any attorney permitted to practice in this Court under Local Rule AT-1 hereof shall familiarize oneself with and comply with the standards of professional conduct required by member of the State Bar of Texas and contained in the Texas Disciplinary Rules of Professional Conduct, V.T.C.A. Government Code, Title 2, Subtitle G- Appendix and the decisions of any court applicable thereto, which are hereby adopted as standards of professional conduct of this Court. This specification shall not be interpreted to be exhaustive of the standards of professional conduct. In that connection, the Code of Professional Responsibility of the American Bar Association shall be noted.  No attorney permitted to practice

before this Court shall engage in any conduct which degrades or impugns the integrity of the Court or in any manner interferes with the administration of justice therein.” See Local Rule AT-4 for the Western District of Texas.

Thus, the rules governing the conduct of attorneys practicing before the District Court for the Western District of Texas expressly incorporate as the “Standards of Professional Conduct” before these Courts, the Rules of Professional Conduct of the State Bar of Texas which in strict, mandatory terms provide that a lawyer “shall not communicate… with a person … the lawyer knows to be represented by another lawyer … unless the lawyer had the consent of the other lawyer {Rules of Professional Conduct of the State Bar of Texas 4.02, expressly incorporated as the “Standards of Professional Conduct” before the District Court.

Moreover, 28 USC §5306 expressly applies the rules of ethics to federal prosecutions. “Ethical standards for attorneys for the government. (a). An attorney for the government shall be subject to the state laws and rules and local federal court rules governing attorneys in each state where the attorney engages in that attorney’s duties in the same extent in the same manner as other attorneys in that state.

What this means is that once a targeted individual is represented by an attorney Government Counsel may not communicate with that defendant unless his or her attorney is notified and gives prior consent. See U.S. v. Thomas, 474 F.2d 110, 112 (10^th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct 2758, 37 L.Ed.2d 160 (1973). The Fifth Circuit has recognized that conduct which violates this canon of ethics is reprehensible and that suppression may be the appropriate sanction. U.S. v. Killian, 639 F.2d 206, 210 (5^th Cir.), cert. denied sub nom; Brunk v. U.S., 451 U.S. 1021, 101 S.Ct. 3010, 69 L.Ed.2d 394 (1981).

“We agree that the conduct which occurred in this case was highly improper and unethical. …The action that was taken in this case is truly reprehensible and taints the dignity of the offices of the U.S. Attorney, the D.E.A. and the F.B.I..” U.S. v. Killian, 639 F.2d 206, 210 (5^th Cir.), cert. denied sub nom; Brunk v. U.S., 451 U.S. 1021, 101 S.Ct. 3010, 69 L.Ed.2d 394 (1981).

There can be little question that these ethical rules were intended to regulate the conduct of advocates on both sides of the bar, and courts have been quick to impose sanctions whether the violation was occasioned by a prosecutor, see U.S. v. Hammad, 858 F.2d 834, 839-842 (2d Cir. 1988)³, or defender, see U.S. v. Grieg, 967 F.2d 1018, 1023 (5^th Cir. 1992), where the Fifth Circuit recently reiterated:

³ In Hammad the Second Circuit discussed the appropriateness of imposing sanctions upon a prosecutor who violated that Cannon, interfering with a represented parties attorney-client relationship:

“On appeal, the government…claims that even if there was a violation of the disciplinary rule, exclusion is inappropriate to remedy an ethical breath. We “[Defense Counsel’s] alleged conduct was highly unethical and clearly violated the Model Code of Professional Responsibility as well as the American Bar Association’s Model Rules of Professional Conduct. Grieg’s [defense] counsel was in clear violation of both the American Bar Association’s Model Rules of Professional Conduct and the Model Code of Professional Responsibility. Rule 4.2 of the Model Code provides:

RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law. The Model Code’s Disciplinary Rule 7-104(A)(1) is substantially identical.” U.S. v. Grieg, 967 F.2d 1018, 1023 (5^th Cir. 1992).

 

DISMISSAL IS THE APPROPRIATE REMEDY WHERE PROSECUTOR’S INTERFERENCE WITH CITIZEN’S RIGHT TO REPRESENTATION CAUSES THE ACCUSED TO LOSE HIS LAWYER

In U.S. v. Lopez, 765 F. Supp. 1453 (N.D. Cal. 1991) the District Court for Northern District of California was confronted with a prosecutor whose contact and communication with a represented accused resulted in that individual losing his lawyer.

“It is thus no exaggeration to say that the conduct of the government in this case cost the defendant his lawyer. The record makes it clear that Lopez retained Tarlow and wished to be represented by him if his case proceeded to trial. The government made that impossible.” U.S. v. Lopez, 765 F.Supp. 1432, 1456 (N.D. Cal. 1991).

Just as the government misconduct in this case must be characterized as egregious and flagrant, the court has no difficulty have not heretofore decided whether suppression is warranted for a DR 7- 104(A)(1) violation… We now hold that, in light of the underlying purposes of the Professional Responsibility Code and the Exclusionary rule, suppression may be ordered in the district court’s discretion…

“Accordingly, we reject he government’s effort to remove suppression from the arsenal of remedies available to district judges confronted with ethical violations.” U.S. v. Hammad, 858 F.2d 834, 842 (2d Cir. 1988).

In finding that defendant Lopez was substantially prejudiced by that misconduct. As the court has already indicated, the prosecutor’s conduct ultimately served to deprive Lopez of his chosen counsel. The record indicates that Lopez, who retained Barry Tarlow because of his skills as a trial attorney, went to great lengths to avoid just this result.” U.S. v. Lopez, 765 F. Supp. 1433, 1461 (N.D. Cal. 1991).

In U.S. v. Lopez, 765 F. Supp. 1433, 1461 (N.D. Cal. 1991), even though the Defendant’s new lawyer was eminently competent⁴, the District Court found that dismissal was the only appropriate remedy where the prosecutor’s communication with a represented individual resulted in that citizen’s loss of his or her counsel of choice. The Ninth Circuit noted that it may be the appropriate remedy but was not in that particular case. See U.S. v. Lopez 4 F.3d 1455 (9^th Cir. 1993).

“We have recognized that exercise of supervisory powers is an appropriate means of policing ethical misconduct by prosecutors…we have also expressly recognized the authority of the District Court to dismiss actions where government attorneys have ‘willfully deceived the court,’ thereby interfering with ‘the orderly administration of justice.’ … [W]e question the prudence of remedying [Lyons] misconduct through dismissal of a valid indictment. To justify such an extreme remedy, the government’s conduct must have caused substantial prejudice to the defendant and been flagrant in its disregard for the limits of appropriate professional conduct.” U.S. v. Lopez 4 F.3d 1455 (9^th Cir. 1993). See also U.S. v. Acosta, 526 F.2d 670, 674 (5^th Cir.), cert. denied, 426 U.S. 920 (1976).

But an even worse case exists where the Government abuses it non-reciprocal, compulsory power to separate represented citizens from their counsel in order to achieve those results.

PRE-INDICTMENT AS WELL AS POST-INDICTMENT

The courts have made clear that it matters not that defendants had not been indicted and their Sixth Amendment right to counsel had not yet attached.

The courts that have considered the issue has concluded, “the ethical prohibition of the State Bar…should be applied pre-indictment” as well as post-indictment to prohibit such hostile communication with represented parties. U.S. v. Lopez, 765 F. Supp. 1433, 1451 (N.D.Cal. 1991). As the Second Circuit reiterated in Hammad:

⁴ “There is no question that Lopez’s new counsel is very able and will provide him with outstanding representation….”, U.S. v. Lopez, 765 F. Supp. 1433, 1461 (N.D. Cal. 1991).

“The applicability of DR 7-104(A)(1) to the investigatory stages of a criminal prosecution presents a closer question. The government asserts the rule is coextensive with the sixth amendment, and hence, that it remains inoperative until the onset of adversarial proceedings. The appellee responds that several courts have enforced DR 7-104(A)(91) prior to attachment of sixth amendment protections. We find no principled basis in the rule to constrain its reach as the government proposes…. …The sixth amendment and the disciplinary rule serve separate, albeit congruent purposes.

…[T]he Constitution prescribes a floor below which protections may not fall, rather than a ceiling beyond which they may not rise. The Model Code of Professional Responsibility, on the other hand, encompasses the attorney’s duty ‘to maintain the highest standards of ethical conduct.’ … Hence, the Code secures protections not contemplated by the Constitution.

Moreover, we resist binding the Code’s applicability to the moment of indictment. The timing of an indictment’s return lies substantially within the control of the prosecutor. Therefore, were we to construe the rule as dependent upon indictment, a government attorney could manipulate grand jury proceedings to avoid its encumbrances.” U.S. v. Hammad, 858 F.2d 834, 838-839 (2d Cir. 1988)⁵.

More importantly, here the opportunity to engage in such hostile interference with the attorney-client relationship was occasioned by the exclusive, non-reciprocal, compulsory process of the Federal Grand Jury.

Last term, the Supreme Court recounted the over 150-year history of the federal courts’ inherent power to regulate the conduct of attorneys who appear before them and noted that the “power reaches both conduct before the court and that beyond the court’s confines….” Chambers v. Nasco, Inc., 115 L.Ed. 2d 27, 44 (1991).

 

⁵  REGARDLESS WHO INITIATED THE CONTACT

And it matters not whether the individual or opposing counsel initiated the contact or interview.

“Nor is the prosecutor’s conduct excused by the fact that the defendant initiated contact with the government. Courts have consistently ruled that the ethical prohibition bars a prosecutor from communicating with a represented individual without his or her counsel even if it is the individual who makes the first contact.

…The Discussion text following Rule 2-100 explicitly states that it is irrelevant whether an attorney is contacted by the opposing party. In addition, the Committee on Professional Ethics of the ABA has unanimously ruled that the ethical prohibition is violated even when the defendant initiates contact with the government. … Moreover, as the ethical prohibition applies to attorneys and is designed in part to protect their effectiveness, a represented party may not waive it.” U.S v. Lopez, 765 F. Supp. 1433, 1451-2 (N.D. Cal. 1991).

In a brief filed with the Supreme Court of the United States, this same Government argued that “Because of the special status of lawyers in the judicial system, we [Department of Justice] believe that state and ethical codes may constitutional regulate attorneys” [Brief for the United States of Amicus Curiae, at p. 4, Gentile v. State Bar of Nevada].

“A lawyer is not in the same position as private citizen with respect to the judicial system. Rather, the lawyer has a ‘fiduciary obligation to the courts.’ …[C]ourts have for centuries possessed authority ‘over members of the bar, incident to their broad responsibility for keeping the administration of justice and the standards of professional conduct unsullied… [L]awyers must operate as assistants to the court in search of a just solution to disputes.” [Brief of the United States as Amicus Curiae, at p. 6, filed in Gentile v. State Bar of Nevada, November 1990.

The Government has no problem seeking to enforce such codes of professional conduct against defense attorneys when it suits their purpose; even to the exclusion of those lawyer’s First Amendment rights. They should not be heard to suggest that they are not bound by those same rules when it does not suit their purpose.

The Supreme Court had the opportunity to reiterate the need “to have counsel present” before the prosecution seeks waiver of an accused’s asserted Fifth Amendment right to counsel, even before indictment or any formal charges have been lodged.  Minnick v. Mississippi, 498 U.S. 146, 112 L.Ed. 2d 489, 111 S.Ct. 486 (1990).

The Government’s actions interfering with the relationship between a defendant and counsel irretrievably damages the relationship. This fact must have a bearing on a Court’s decision. Where the Government intentionally injects itself into the relationship between an attorney and his client, it does so knowing that there will be a “…substantial risk… that the basic trust between counsel and client, which is the cornerstone of the adversary system, would be undercut,” Wilson v. Mintzes, 761 F.2d 275, 285 (6^th Cir. 1985), quoting Linton v. Perini, 656 F.2d 207, 208 (6^th Cir. 1981), cert. denied, 454 U.S. 1162.

Just last month the United States District Court for New Mexico took action against a prosecutor for violating this very Cannon by communicating with a represented individual under much less egregious circumstances than presented here, In the Matter of Doe, Esq. 801 F. Supp 478 (D. New Mexico, 1992):

“[T]he profession of the law, in its nature the noblest and most beneficial to mankind, is in its abuse and abasement the most sordid and pernicious.

Law evolves with the collective experience of a society’s efforts to peaceably resolve human conflict. Hence, law is not stagnant. Lawyers, in our adversary system, breathe life into its words. As they zealously advocate a client’s interest, the law advances and, as they employ reason, they direct its movement. But, the law in this social order is not self-executing—the necessary instrument in the lawyer.

Today, it is beyond argument that one of the lawyer’s most noble responsibilities is to protect the individual against Government excesses. Indeed, a lawyer’s role is so essential to such vague concepts as “due process” and “equal protection of laws” that we guarantee the indigent a right to a lawyer. And although these concepts, so central to justice, are ultimately defined by the courts, they are fist given substance by the lawyer.

When we hear the complaint, “it’s not the law,” the cry, “they’re not following the law,” or the clarion call, “there ought to be a law,” we are jarred to the reality that our nation is a legal polity. Within this polity there is an increasingly palpable perception that the public is no longer empowered and that the legislature and executive are no longer responsive to its needs. It is not surprising, then, that the public turns to the remaining independent branch of Government—the judiciary—to vindicate its rights under the law. Again it entreats the lawyer.

Acknowledging the crucial rule of the lawyer in our nation’s fabric, we must understand ethical standards are not merely a guide for the lawyer’s conduct, but are an integral part of the administration of justice. Recognizing a Government lawyer’s role as a shepherd of justice, we must not forget that the authority of the Government lawyer does not arise from any right of the Government, but from power entrusted to the Government. When a Government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public truest, but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of this power.

For this reason, some observe that our system of law is a “tripartite entity”; that the process requires contending lawyers and a neutral tier; that if any of these three supports is missing, the process fails; and, that if any to leg is disproportionately weak, the structure as a whole is weakened.” In the Matter of Doe, Esq. 801 F. Supp 478 (D. New Mexico, 1992).

This Court has supervisory power to remedy a prosecutor’s misuse or abuse of their authority before the grand jury. Bank of Nova Scotia v. U.S., 108 S. Ct. 2369, 2374 (1988). This Court has the inherent power to dismiss the indictment pursuant to it supervisory powers. U.S. v. Basurto, 497 F.2d 781, 785 (9^th Cir. 1974); U.S. v. Chanen, 549 F.2d 1306, 1309 (9^th Cir.), cert. denied, 434 U.S. 825 (1977). As the Third Circuit aptly noted in U.S. v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979):

“[W]hile in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened.

We suspect that dismissal of an indictment may be virtually the only effective way to encourage compliance with these ethical standards, and to protect defendants from abuse, of the grand jury process.” U.S. v. Serubo, 604 F.2d 807, 817 (3d Cir. 1979).