U.S. v. Heinz, 92-8165

• Decision Date: 26 January 1993
• Docket Number: No. 92-8165,92-8165
• Citation: 983 F.2d 609
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard Lee HEINZ, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 609

983 F.2d 609

UNITED STATES of America, Plaintiff-Appellant, v. Richard Lee HEINZ, et al., Defendants-Appellees.

No. 92-8165.

United States Court of Appeals Fifth Circuit.

Jan. 26, 1993.

Rehearing and Rehearing En Banc

Denied March 10, 1993.

Richard L. Durbin, Jr., Mark R. Stelmach, Ronald F. Ederer, U.S. Atty., San Antonio, Tex., Asst. U.S. Attys., for plaintiff-appellant.

Nate Rhodes, Corpus Christi, Tex., for R. Heinz.

Nancy M. Simonson, A.J. "Tony" Canales, Corpus Christi, Tex., for M. Wilshusen.

Charles O. Grigson (Court Appointed), Austin, Tex., for J. Carsrud.

Richard Shreves (Court Appointed), Austin, Tex., for B. Thomas.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY and DUHE, Circuit Judges, and PARKER, ^* District Judge.

PER CURIAM:

The question presented by this appeal is whether the district court erred in concluding that the government's prosecutorial and investigatory conduct toward defendant-appellees was so improper as to render taped telephone conversations between Heinz and the government's agent subject to suppression. The question must be analyzed by the light of the Sixth Amendment. Upon such analysis, we hold that the government's conduct did not violate Heinz's Sixth Amendment right to counsel.

I

Ted Mitchell is an attorney licensed to practice law in the State of Texas. The district court found that Mitchell had on occasions in the past given legal advice in certain civil matters to Charles Patillo and to defendants-appellees: Richard Lee Heinz, Michael Scott Wilshursen, and Jack Delano Carsrud. ¹ However, the communications between Ted Mitchell and the defendants that the defendants seek to suppress were communications allegedly in furtherance of criminal activity--namely, avoiding prosecution for bank fraud and money laundering.

On December 13, 1989, a series of evidentiary search warrants were executed on premises controlled by various defendants. No charges were filed against any of the defendants. The defendants, however, received grand jury subpoenas requiring them to appear and testify in January before the grand jury in Austin, Texas.

One of these search warrants was executed in the Corpus Christi office of Heinz and Wilshursen. At that time, Heinz was read his "Miranda rights," and he invoked his right to counsel and right to remain silent--affirmatively refusing to speak with the investigating agents without the presence of his attorney. ²

Another of the search warrants was executed the next day directed to Ted Mitchell's briefcase, in which agents apparently found evidence of money laundering. That same day, Mitchell entered into a plea agreement with prosecutors, in which he agreed to cooperate in the investigation of the other defendants. ³

The government admits that the defendants were targets of a criminal investigation at the time, and even before the execution of the search warrants on December 13, 1989. On December 22, Corpus Christi IRS Agent Wentrcek was contacted by Attorney Rich Rogers, who informed the agent that he was representing Heinz regarding the matters before the grand jury. Wentrcek informed Rogers that he was a special agent in the Criminal Investigation Division of the Internal Revenue Service working under the direction of Assistant United States Attorney Blankinship.

On December 26, 1989, Mitchell called IRS Agent Abel Trevino in Austin, Texas, and told him defendants were planning to commit perjury before the Austin Grand Jury. (Trevino and Wentrcek operated as co-"Case agents" on the money laundering and fraud cases.) Mitchell told Trevino that the defendants knew they were under investigation by federal agents and "wanted to get their story straight."

Between December 27 and 28, 1989, Mitchell--while in the company of Agent Trevino--had three telephone conversations with Heinz. Trevino "consensually monitored" these conversations, in which Mitchell acquired testimonial evidence apparently incriminating to Heinz and Heinz's fellow defendants. ⁴ Carsrud was with Heinz during at least one of the conversations, but did not talk to Mitchell. During another of the conversations, Heinz was apparently speaking from the office of Wilshursen.

Trevino testified that he was personally unaware that Heinz was represented by counsel at the time he taped these conversations between Mitchell and Heinz. He admits that his co-"Case agent" Wentrcek knew as of December 22, 1989, that Heinz was represented by counsel in the grand jury matters, but stated that he himself "probably didn't know" this--that he did not know this "until just recently." But during the third tape-recorded conversation, Mitchell asked Heinz about what "Rogers" has told Heinz, an apparent reference to Rick Rogers, Heinz's attorney.

In January of 1990, the Austin Grand Jury was convened; defendants Carsrud and Byron Lewis Thomas testified before the Grand Jury about the case. On May 10, 1990, the defendants were indicted for money laundering and bank fraud, perjury and conspiracy to commit perjury.

On March 13, 1992, the district court conducted an evidentiary hearing on defendants' suppression motion. At this hearing, Trevino admitted that the documents he and his teammates discovered in Mitchell's briefcase on December 13, 1989, reflected Mitchell's previous representation of Heinz and Patillo.

On March 27, 1992, the district court granted defendants' motion to suppress from evidence the tape-recorded conversations between Mitchell and Heinz; the district court concluded that the government had violated Heinz's Sixth Amendment right to counsel.

The district court held that, even though Heinz had not been indicted, his Sixth Amendment right to counsel had attached before the December 27 and 28 tape-recorded telephone calls--because the case had reached a "critical state." Examining the facts of the case, the district court concluded that at the time of the taping, the government and Heinz had become "adversaries." The district court relied on Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985) and Escobedo v. Illinois, 378 U.S. 478, 490-491, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977 (1964). In Moulton, the Supreme Court recognized that the right to counsel is shaped by the need for counsel, and noted that the right attaches at "critical" stages in the criminal justice process before trial. Moulton, 474 U.S. at 170, 106 S.Ct. at 484. Accordingly, the Court held that pursuant to the Sixth and Fourteenth Amendments, "a person is entitled to the help of an attorney at or after the time that judicial proceedings have been initiated." Id. (quoting Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977)). In Escobedo, the accused had requested and been denied an opportunity to consult with his lawyer, and the police had not effectively warned him of his right to remain silent. The Supreme Court held that the police had violated Escobedo's right to counsel when the investigation was "no longer a general inquiry into an unsolved crime, but ha[d] begun to focus on a particular suspect, the suspect ha[d] been taken into police custody; [and] the police carr[ied] out a process of interrogations lending itself to eliciting incriminating statements." Escobedo, 378 U.S. at 490-491, 84 S.Ct. at 1765.

II

We reverse the district court on its Sixth Amendment ruling. Current law teaches that the Sixth Amendment right to counsel does not attach until or after the time formal adversary judicial proceedings have been initiated. See United States v. Gouveia, 467 U.S. 180, 187-190, 104 S.Ct. 2292, 2297-2299, 81 L.Ed.2d 146 (1984) (Rehnquist, J.), and authorities cited therein; McNeil v. Wisconsin, --- U.S. ----, ----, 111 S.Ct. 2204, 2207-2211, 115 L.Ed.2d 158 (1991) (Scalia, J.). See also United States v. Johnson, 954 F.2d 1015, 1019 (5th Cir.1992); United States v. McClure, 786 F.2d 1286, 1290-1291 (5th Cir.1986). This is so despite the fact that some earlier Supreme Court cases seem to imply that a more functional test for the attachment of the Sixth Amendment right to counsel is appropriate. Compare e.g., Maine v. Moulton, 474 U.S. 159, 168-170, 106 S.Ct. 477, 483-484, 88 L.Ed.2d 481 (1986); United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984) (Sixth Amendment right to counsel does not attach until such time as the " 'government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified' ") (quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (Sixth Amendment right to counsel attaches only when "the state [becomes] aligned against the accused."). Compare also United States Ex Rel. Hall v. Lane, 804 F.2d 79, 82 (7th Cir.1986) ("The right to counsel attaches only when a defendant proves that, at the time of the procedure in question, the government had crossed the constitutionally-significant divide from fact-finder to adversary.") (Citing DeAngelo v. Wainwright, 781 F.2d 1516, 1519-1520 (11th Cir.), cert. denied, 479 U.S. 953, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986)).

III

Before concluding, we think we have a responsibility to address the arguments raised in the dissent. The dissent argues that we should suppress the conversations between Mitchell and Heinz because the prosecution team violated the canons of ethics. The dissent is ill-advised for several reasons. In the first place, Heinz did not make this argument below, the district court did not consider it, and Heinz has not seriously made this argument on appeal. In essence, the point has been raised sua sponte by the dissenting judge.

Furthermore, our research shows that no court has ever suppressed evidence in a criminal case because a prosecutor on the prosecutorial team--much less an investigator or an informant--violated DR 7-104(A)(1) in the course of an investigation and before the grand jury indicted ...