United States v. Jamil
| Citation | 546 F. Supp. 646 |
| Decision Date | 01 July 1982 |
| Docket Number | No. 81 CR 687(S).,81 CR 687(S). |
| Parties | UNITED STATES of America, Plaintiff, v. Benjamin JAMIL, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
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Edward R. Korman, U. S. Atty., E.D.N.Y. by David V. Kirby, Asst. U. S. Atty., Brooklyn, N.Y., for plaintiff.
Barry Ivan Slotnick, New York City, for defendant.
Defendant is charged with the violation of statutes prohibiting the sale of electronic eavesdropping devices in this country and the export without a license of equipment with potential military use. 18 U.S.C. §§ 2512(1)(a), (b), (c); 22 U.S.C. §§ 2778(b)(2), (c). He moves to dismiss on the ground that the government violated his Sixth Amendment rights by recording a conversation among himself, his trial attorney and an informer. The latter had been equipped by government investigators with a Nagra recorder after the United States Attorney and the investigators became aware that the attorney had been retained in the matter. For the reasons stated below, the motion to dismiss on Sixth Amendment grounds must be denied. The court has considered less drastic relief warranted by ethical principles, power to supervise counsel, authority to redact and the balancing principles of Rule 403 of the Federal Rules of Evidence. For the reasons indicated below, the recording will not be admitted at the trial on the direct case of the government.
A pretrial hearing established the following facts. An export shipment of defendant's merchandise had been seized at the airport by Customs. Customs agents had executed a search warrant for his place of business in the presence of both the defendant and his attorney retained for the matter. Defendant was a target of a pending grand jury investigation; an indictment was likely. There had been meetings between defense counsel and the Assistant United States Attorney concerning the probable prosecution. Government Customs agents who conducted the search were explicitly told by counsel not to speak to defendant without the attorney's permission. The Assistant United States Attorney did not have to be told — he was aware that to do so under the circumstances would be to violate plain ethical standards as well as policy of the United States Attorney's office for this district. (See Record June 7, 1982 at pp. 31, 83.)
Fortuitously, some two weeks after the search of defendant's offices, the Customs agents on the case found themselves with a willing informer, one of defendant's customers, who volunteered to tape record a planned business meeting with defendant. The informer's action was in part self-protective, for he was concerned that defendant, a purveyor of bugging and anti-bugging devices, would be recording the conference. This fear was not unfounded since the defendant was during this period arranging to record the conversation of a chief-witness against him at what that witness thought was a friendly reunion with a former fellow-worker.
When the Customs officers outfitted the informer with a taping device he became an agent of the government for the purpose of recording the meeting. Suitably instructed and encouraged by these law enforcement officials the informer and his son had the meeting as planned — with one exception: defendant appeared with his attorney. As a result, both the attorney's and the defendant's voices as well as those of the informer and his son were captured on the tape.
The transcript reveals a trilingual conversation — Arabic, French and English — among businessmen and the attorney of one of them with respect to future and past deals for electronic equipment, letters of credit, the need for export licenses and delays in shipments. Whenever the informer seeks to direct the discussion towards defendant's material already seized by Customs, or to put on the record defendant's prior knowledge about the need for export licenses, he is counselled by his attorney not to answer. Typical is the following:
The United States Attorney was not privy to the electronic arrangements attending the investigation. But he is eager to use the fruits. Defendant, having had his anti-bugging net breached, and surprised that the government's sense of sportsmanship and trust among friends was no higher than his own, seeks protection from the law.
Defendant's contention that the indictment must be dismissed because his Sixth Amendment rights were violated is not supported by current federal caselaw. His Sixth Amendment right to counsel was not applicable. He was not in custody. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Vasquez, 675 F.2d 16 (2d Cir. 1982). No adversarial proceedings had been commenced against him. See Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). The fact that he had become the subject of a grand jury investigation is insufficient. United States v. Vasquez, supra.
There was no impermissible intrusion of the government's ear into the privacy of the attorney-client relationship that might have revealed privileged information placing a Sixth Amendment taint on the entire prosecution. Cf. United States v. Levy, 577 F.2d 200 (3d Cir. 1978) (); United States v. Rispo, 460 F.2d 965, 977 (3d Cir. 1972) (); United States v. Lusterino, 450 F.2d 572 (2d Cir. 1971) (); Caldwell v. United States, 205 F.2d 879 (D.C.Cir.1953) (), cert. denied, 349 U.S. 930, 75 S.Ct. 773, 99 L.Ed. 1261 (1955); Coplon v. United States, 191 F.2d 749, 757 (2d Cir. 1951) (), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952); United States v. Orman, 417 F.Supp. 1126 (D.Colo.1976) (). The presence of a third party at what purported to be a business conference precludes the conclusion that what was said constituted a privileged communication. United States v. Melvin, 650 F.2d 641, 645-46 (5th Cir. Unit B. 1981); United States v. Gartner, 518 F.2d 633, 636-37 (2d Cir.), cert. denied, 423 U.S. 915, 96 S.Ct. 222, 46 L.Ed.2d 144 (1975).
Canon 7 and Disciplinary Rule 7-104(A)(1) of the ABA Code of Professional Responsibility prohibit an attorney from communicating with a person of adverse interest who is represented by counsel. The rule is a modern version of Hoffman's Resolution XLIII which had been followed from time immemorial by the Anglo-American bar, that "I will never enter any conversation with my opponent's client relative to his claim or defense except with the consent and in the presence of his counsel." D. Hoffman, A Course of Legal Study II, at 751 (2d ed. 1836). The principle as it now appears in DR 7-104(A)(1) forbids a lawyer during the course of his representation of a client to:
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.
The current American Bar Association proposed revision of the Code of Ethics retains the principle virtually unchanged. See ABA Commission on Evaluation of Professional Standards, Final Draft of Model Rules of Professional Conduct, Proposed Rule 4.2 with comments and notes (Oct. 1981).
This salutary rule is fundamental to the effective functioning of the legal profession. There could be no reliable...
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