United States v. Joel
| Decision Date | 29 September 2015 |
| Docket Number | CASE NO. 15-cr-0430-GPC |
| Court | U.S. District Court — Southern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TIMOTHY JOEL, Defendant. |
ORDER DENYING DEFENDANT'S MOTION IN LIMINE TO SUPPRESS SEPT. 5, 2013 CALL
Defendant Timothy Joel ("Joel" or "Defendant") is charged in a four-count indictment with obstruction of justice, witness tampering, and false statement. On July 21, 2015, Joel filed a motion in limine seeking to suppress evidence of a September 5, 2013 recorded call between Joel and a Homeland Security Investigations ("HSI") special agent. The Government filed its response on September 2, 2015. Joel filed a reply on September 16, 2015 and supplemental documents in support of its motion on September 20, 2015. On September 28, 2015, the Court held a hearing on the motion. Based on the papers filed and arguments of counsel, the Court DENIES the motion to suppress the September 5, 2013 recorded call.
On February 19, 2015, the grand jury returned an Indictment charging Defendant with four felony counts: obstruction of justice, in violation of 18 U.S.C. § 1503 (Count 1); witness tampering, in violation of 18 U.S.C. § 1512(b)(2)(C) (Count 2); witness tampering, in violation of 18 U.S.C. § 1512(b)(2)(D) (Count 3); and making a false statement to a federal officer, in violation of 18 U.S.C. § 1001 (Count 4). Defendant Joel entered not guilty to all counts on February 26, 2015. On September 18, 2015, the Court granted the Government's motion to dismiss Count 3 of the Indictment.
According to Government allegations, in 2007, Joel was a Special Agent assigned to an FBI squad in San Diego that investigated alien smuggling. In May 2007, Joel interviewed a Korean national (herein referred to by her initials "YK"), after she was apprehended at the Port of Entry attempting to enter the United States with false entry documents. Joel learned that YK was attempting to illegally enter the United States. Defendant thereafter applied for "Significant Public Benefit Parole" for YK, a form of immigration status, claiming that she was a material witness in a criminal investigation. Defendant renewed YK's parole status in 2008, despite the fact that she was not actively working with the FBI. YK's parole status eventually expired in early 2009, and thereafter she had no legal right to remain in the United States. The Government alleges that Joel did not effect YK's departure from the United States, but instead began making dozens of payments to her through bank transfers, totaling over $20,000. Beginning in 2012, Defendant moved in with YK, living with her in an apartment in Los Angeles.
In July 2012, the FBI received information from a confidential source that Defendant was living with a suspected illegal alien, who worked as a "hostess" at a karaoke bar. The Office of Professional Responsibility ("OPR") of the FBI opened an investigation, and flew Defendant to Washington, DC for an interview. At theconclusion of the interview, the FBI referred the matter to the Department of Justice Office of Inspector General ("DOJ OIG") for a criminal investigation.
On or about January 16, 2013, OIG agents Anthony Costakis and Thomas Reynolds interviewed Defendant Joel in Glendale, California. At the interview, Joel supplied agents with a letter which described his earlier OPR interview. In the letter, Joel reiterated that (1) he paroled YK into the United States as a witness in 2007 when he was working in San Diego, (2) he recently reconnected with YK when he was searching for an apartment in Los Angeles, (3) he did not have any association with YK after he moved to Washington in 2009, and (4) he only lived with YK briefly, for a few months in 2012.
The Government alleges that following their interview of Joel, OIG agents investigated Defendant's claims, and discovered that many of them were false. First, Defendant's bank records showed that he made regular cash transfers to YK from 2009 through 2013, totaling more than $20,000. Second, Defendant's phone records showed frequent telephone contact with YK over the past five years, including the entire year that Joel was in Washington, D.C. Finally, agents obtained the original parole documents for YK, submitted by Joel in 2007 and 2008. In those documents, Defendant described YK as a "leading material witness" in an alien smuggling investigation, when in fact FBI records do not contain any evidence that YK was opened as a source or provided any substantive information.
Throughout 2013, OIG agents continued to investigate Defendant relating to his relationship with YK. The investigating agents learned both YK and Defendant rented separate apartments, on the same floor of a new apartment building, at 349 South Lafayette Park, in Los Angeles. Later, an interview with the manager from that apartment revealed that YK had broken her lease and moved out. Shortly thereafter, Defendant Joel broke his lease and moved out as well.
On September 5, 2013, OIG arranged for HSI Special Agent Jacobsen to place an undercover recorded call to Defendant. On the morning of the recorded call, agents in Los Angeles established surveillance near the Defendant's apartment building. The call was placed after Joel left his apartment.
In the recorded call, HSI SA Jacobsen told Joel that she was trying to determine YK's status and serve her with a grand jury subpoena. Joel then asked SA Jacobsen if this was "regarding OIG stuff?" SA Jacobsen replied that Joel notified SA Jacobsen that he had contacted an FLEOA (Federal Law Enforcement Officers Association) attorney and didn't know whether OIG was doing anything.1 At the conclusion of the call, the agent warned Defendant not to contact YK and discuss the grand jury subpoena.
After the call ended, agents observed Joel return to his apartment building, at 11:12 a.m. He stayed for approximately one hour, and then returned to his FBI office downtown. A few hours later, agents observed YK exiting Defendant's building and entering the parking garage. Agents then served YK with a grand jury subpoena. Afterwards, YK sent a text message to Defendant, stating Defendant later responded, "There's going to be some problems."
On September 19, 2013, YK appeared before the grand jury. At the conclusion of her testimony, she was served with a subpoena to appear for additional testimony at a later date. YK never appeared, however, because on September 25, 2013, while under subpoena, she fled the country. Later, OIG agents executed a search warrant onDefendant's cell phone, and discovered that he remained in frequent contact with YK up to and after she left the country.
Count 4 charges Joel with false statements in violation of 18 U.S.C. § 1001. The crime is alleged to have occurred on or about September 5, 2013 when Joel falsely claimed that (1) he did not have an address for YK; (2) only had an old phone number for YK and (3) had last had contact with YK the previous week. Defendant Joel moves to suppress the September 5, 2013 phone call because Joel was a grand jury target and the Government was aware that he was represented by counsel with respect to the OIG investigation. The crux of Defendant's argument is that the Government violated California Rule of Professional Conduct 2-100 ("Rule 2-100") and that the proper remedy for this violation is suppression. The Government responds that the United States did not violate any ethical rules and, even if it did violate Rule 2-100, suppression is not warranted.
A. Rule 2-100
Joel's motion raises three issues: (1) does Rule 2-100 apply to the pre-indictment contact of Joel by the Government; (2) was the contact made by the Government "authorized by law"; (3) if the contact was prohibited, does Rule 2-100 or federal law require suppression of evidence for the unauthorized contact.
Rule 2-100 governs communications by lawyers with represented parties. It provides that "[w]hile representing a client, a member [of the State Bar of California] shall not communicate directly or indirectly about the subject matter of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer." Cal. R. Prof. Conduct § 2-100. The rule exists in order to "'preserv[e] . . . the attorney-client relationship and the proper functioning of the administration of justice.'" United States v. Talao, 222 F.3d 1133, 1139 (9th Cir. 2000) (). Under 28 U.S.C. § 530B, known as the McDade Amendment, Rule 2-100 applies to government prosecutors. The McDade Amendment provides that "[a]n attorney for the government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney's duties, to the same extent and in the same manner as other attorneys in that State." 28 U.S.C. § 530B(a); see also id. at 1139-40 (). State laws governing attorneys have been extended to government investigators as well. United States v. Jamil, 707 F.2d 638, 645 (2d Cir. 1983) (citations omitted) ([state laws governing attorneys] may be found to apply in criminal cases, to government attorneys and to non-attorney government law enforcement officers when they act as the alter ego of government prosecutors.)
As a threshold matter, the Court must determine whether Rule 2-100 applies in a pre-indictment, non-custodial...
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