US v. Hammad

Decision Date12 November 1987
Docket NumberNo. CR-87-232.,CR-87-232.
Citation678 F. Supp. 397
PartiesUNITED STATES of America v. Eid HAMMAD and Taiseer Hammad and Abdel Hammad, Defendants.
CourtU.S. District Court — Eastern District of New York

Sean O'Shea, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., for plaintiff.

Harvey L. Greenberg, New York City, for Eid Hammad.

Robert Hill Schwartz, Richard A. Greenberg, New York City, for Taiseer Hammad.

James Evans Siff, New York City, for Abdel Hammad.

GLASSER, District Judge:

The defendant Taiseer Hammad moves this court to suppress certain statements made by him to a government agent on October 9, 1986 and October 14, 1986. In addition, the defendant moves this court to sever him from the trial of his co-defendants, dismiss counts 36-38 and 45 of the indictment, and direct the government to file a bill of particulars and other discovery relief pursuant to F.R.Cr.P. 7(f) and 16.

On April 15, 1987, the grand jury indicted the defendant in this case for Medicaid fraud, mail fraud, and obstruction of justice. The indictment also charges Mr. Hammad's co-defendants, Eid and Abdel Hammad, with arson and insurance fraud. This court will first turn to the motion to suppress which entails the attempted obstruction of justice charge against defendant Taiseer Hammad.

SUPPRESSION

The government accuses the defendants of claiming Medicaid reimbursements for selling orthopedic shoes when in fact they were selling ordinary shoes to Medicaid recipients. Wallace Goldstein was employed by a company that supplied shoes to the Hammad Department Store which was owned by the defendants. On October 9, 1986, prior to the indictment, Mr. Goldstein telephoned Taiseer Hammad to inform him that he had been subpoenaed by a grand jury. They discussed this subpoena over the telephone, and then again in person at Mr. Goldstein's Manhattan store on October 14, 1986. Second Affidavit of Richard Greenberg for defendant at 3.

Without Mr. Hammad's knowledge, Agent Frank Napoli of the Bureau of Alcohol, Tobacco, and Firearms recorded these telephonic conversations with Mr. Goldstein, and videotaped the meeting. Id. at 2. Mr. Hammad contends that Mr. Goldstein and Agent Napoli acted as the "alter egos" of the Assistant United States Attorney ("prosecutor") assigned to this case. Defendants' Supplemental Memo. at 4. As such, the defendant argues that the prosecutor violated the Model Code of Professional Responsibility, DR 7-104(A)(1), adopted in New York, which provides:

During the course of his representation of a client a lawyer shall not:
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.

In response, the government first contests the defendant's assertion that he was represented by counsel in this criminal matter, and that the government knew of this representation, at the time of the recordings. Government's Memo. at 18-21. Both in his Supplemental and Reply Memoranda and by the affidavits of Richard Greenberg, Esq. and George Weinbaum, Esq., Taiseer Hammad counters that he was represented by Mr. Weinbaum in the criminal matter at the time of the government's recordings. Furthermore, he states that the prosecutor knew of this representation by mid-July of 1986. Defendant's Supp. Memo. at 1.

Because this issue was sharply disputed by the parties, this court held a hearing on September 17, 1987 for the purpose of resolving it. At that hearing, the court heard only the testimony of Mr. Weinbaum who was called as the defendant's witness. The government offered no evidence. On the basis of the hearing and the papers submitted by the parties, the court finds that the government was clearly aware, by at least as early as September 9, 1986, that Mr. Hammad had retained counsel in connection with this case.

In its memorandum of law, the government admits that Mr. Weinbaum informed the prosecutor that he represented "all three." Gov't. Memo at 20. The government suggests that "all three" meant Eid Hammad, Abdel Hammad, and Hammad Department Store. Id. Mr. Weinbaum affirms that he meant all three defendants, Eid, Abdel, and Taiseer Hammad. Affidavit of Weinbaum at 4. Based on the testimony at the hearing, the court finds Mr. Weinbaum's version acceptable. Furthermore, the court finds that the prosecutor understood Mr. Weinbaum to mean Eid, Abdel, and Taiseer Hammad, especially since Mr. Weinbaum had previously informed him that he represented Taiseer Hammad in a closely related civil matter. Gov't. Memo. at 19.

Even taking the government's assertion of ambiguity as true, it should have, at the very least, pursued its inquiry into the nature of Mr. Weinbaum's representation before sending its agent to discuss the subject matter of this case with Mr. Hammad. Instead, the prosecutor merely requested that Mr. Weinbaum send a letter stating explicitly whom he represented. Gov't. Memo. at 20. Mr. Weinbaum's failure to accede to this request did not justify the government to assume that he no longer represented Mr. Hammad.

As this court finds that Mr. Hammad was represented by counsel at the time of the government's recordings, it now must decide whether DR 7-104(A)(1) applies. As unequivocally pronounced in United States v. Jamil, 707 F.2d 638, 645 (2d Cir.1983), this disciplinary rule "may be found to apply in criminal cases, citations omitted; and to government attorneys. Citation omitted The rule also may be found to apply to non-attorney government law enforcement officials when they act as the alter ego of government officials."

The defendant in Jamil was recorded by an agent of the United States Customs Service in a non-custodial setting and prior to indictment. Even though the government knew that the defendant was represented by legal counsel in connection with its investigation, the Second Circuit declined to suppress the recording on the ground that it violated DR 7-104(A)(1). United States v. Jamil, 707 F.2d at 646. The court declined to suppress solely because of a finding that the Customs agent was not an alter-ego of the prosecutor—not because of the defendant's pre-indictment status, or because of the non-custodial setting, or because DR 7-104(A)(1) did not dictate that result. Id.

The facts before this court plainly establish Mr. Goldstein and Agent Napoli as the alter-egos of the prosecutor. The Government's memorandum of law states that "the prosecutor directed the witness Mr. Goldstein to call Taiseer." Gov't. Memo. at 18. The government continues by recounting that the prosecutor's conversations with Mr. Weinbaum took place "prior to directing the government witness and agents to employ this investigative tactic recording and videotaping." Id. at 19. Finally, the prosecutor supplied Mr. Goldstein with a sham subpoena that purported to order Mr. Goldstein to appear before a grand jury as a ploy to extract damaging statements from Mr. Hammad. First Affidavit of Richard Greenberg for defendant at Exhibit G.

In stark contrast to these facts, the Second Circuit in Jamil stated: "We emphasize that in this case the United States Attorney only became aware of the recording after it was made, and he neither took part in the decision to record the conversation nor had knowledge that the conversation would be recorded." United States v. Jamil, 707 F.2d at 646. The Second Circuit expressly left open the questions "whether DR 7-104(A)(1) would have been violated in this context if the investigator had been acting as the prosecutor's alter ego or to decide whether suppression would have been warranted if the disciplinary rule had been violated." Id.

This court now answers these questions in the affirmative. The government relies on three cases in contesting the first of these conclusions. First, the government cites United States v. Vasquez, 675 F.2d 16 (2d Cir.1982). That case is clearly distinguishable in that the district court there found that the defendant was not represented by counsel at the time of the undercover recording. Id. at 17.

Second, the government turns to United States v. Kenny, 645 F.2d 1323 (9th Cir.), cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981). However, in that case, the question of the "alter-ego" status of the informant was either not raised or not discussed. The Kenny court was of the view that the investigative techniques used by the government in that case did not implicate the type of ethical problem aimed at by the Code of Ethics. It said: "While the present case provides no opportunity for us to say just when the ethical line may be crossed ... we do not believe it has been crossed here." Id. at 1339. Having concluded, for the reasons stated, that the informant here was the alter ego of the prosecutor, this court also concludes that the ethical line has been crossed here. Likewise, the government's third case, United States v. Lemonakis, 485 F.2d 941 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974), involved an informant who was not "the `alter ego' of the U.S. Attorney's office." Id. at 956.

More instructive and apposite is the observation made by the Tenth Circuit:

once a criminal defendant has either retained an attorney or had an attorney appointed for him by the court, any statement obtained by interview from such defendant may not be offered in evidence for any purpose unless the accused's attorney was notified of the interview which produced the statement and was given a reasonable opportunity to be present. To hold otherwise, we think, would be to overlook conduct which violated both the letter and the spirit of the cannons of ethics.

United States v. Thomas, 474 F.2d 110, 112 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973); accord United States v. Killian, 639 F.2d 206, 210 ...

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9 cases
  • U.S. v. Ryans
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 8, 1990
    ..."was clearly aware" that the suspect was represented by counsel at the time of the meeting and suppressed the tapes. United States v. Hammad, 678 F.Supp. 397 (E.D.N.Y.1987). On appeal, the Second Circuit held that the disciplinary rule applied, and that "in light of the underlying purposes ......
  • U.S. v. Hammad
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 29, 1988
    ...apply. In an order dated September 21, 1987, Judge Glasser granted Taiseer's motion to suppress the recordings and videotapes. 678 F.Supp. 397 (E.D.N.Y.1987). The government, he found, "was clearly aware, by at least as early as September 9, 1986, that [Taiseer] had retained counsel in conn......
  • U.S. v. Hammad, 882
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 12, 1988
    ...apply. In an order dated September 21, 1987, Judge Glasser granted Taiseer's motion to suppress the recordings and videotapes. 678 F.Supp. 397 (E.D.N.Y.1987). The government, he found, "was clearly aware, by at least as early as September 9, 1986, that [Taiseer] had retained counsel in conn......
  • U.S. v. Mahaffy, 05-CR-613.
    • United States
    • U.S. District Court — Eastern District of New York
    • August 31, 2006
    ...this Court's suppression of statements obtained from a represented defendant without notice to his counsel. See also United States v. Hammad, 678 F.Supp. 397 (E.D.N.Y.1987). In that case, Hammad was charged with Medicaid fraud. In a ruse to obtain inculpatory statements from Hammad, the pro......
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1 books & journal articles
  • Sham Subpoenas and Prosecutorial Ethics
    • United States
    • American Criminal Law Review No. 58-1, January 2021
    • January 1, 2021
    ...use was permitted under the No-Contact Rule’s authorized-by-law exception, or whether the undercover informant’s use of the 349. 678 F. Supp. 397, 401 (E.D.N.Y. 1987), rev’d, 858 F.2d at 838–40 (proposing that the No-Contact Rule only applies in “instances in which a suspect has retained co......

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