US v. Guerrerio

• Citation: 675 F. Supp. 1430
• Decision Date: 08 December 1987
• Docket Number: No. 86 Cr. 1061 (DNE).,86 Cr. 1061 (DNE).
• Parties: UNITED STATES of America v. Robert GUERRERIO, Sr., Rosalie Guerrerio, Robert Guerrerio, Jr., John Guerrerio and Edward Lustig, Defendants.
• Court: U.S. District Court — Southern District of New York

675 F. Supp. 1430

UNITED STATES of America v. Robert GUERRERIO, Sr., Rosalie Guerrerio, Robert Guerrerio, Jr., John Guerrerio and Edward Lustig, Defendants.

No. 86 Cr. 1061 (DNE).

United States District Court, S.D. New York.

December 8, 1987.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City (William B. Pollard, III, Asst. U.S. Atty., of counsel), for U.S.

Milbank, Tweed, Hadley & McCloy, New York City (Thomas Puccio, of counsel), for defendant Robert Guerrerio, Sr.

Stroock, Stroock & Lavan, New York City (Joel Cohen, of counsel), for defendant Rosalie Guerrerio.

Schlam, Stone & Dolan, New York City (Harvey M. Stone, of counsel), for defendant Robert Guerrerio, Jr.

Gerald J. McMahon, New York City, for defendant John Guerrerio.

Freeman, Nooter & Ginsberg, New York City (Louis M. Freeman, of counsel), for defendant Edward Lustig.

OPINION AND ORDER

EDELSTEIN, District Judge:

The defendants move for suppression, under the court's supervisory power, of statements made by defendants Edward Lustig and Robert Guerrerio Jr. to Dominic DeFebo. Defendants assert that suppression is necessary because the Assistant United States Attorney ("AUSA") assigned to the case violated DR 7-104(A)(1) of the Code of Professional Responsibility as adopted by the New York State Bar Association. As a full statement of the background of this case is set forth in the court's previous opinion, dated October 13, 1987, United States v. Guerrerio, 670 F.Supp. 1215 (S.D.N.Y.1987), only the facts relevant to the instant motion are set forth herein.

FACTS

This case arises out of a fifteen count indictment that alleges a tax fraud conspiracy by the defendants. It is alleged that the defendants laundered money by a series of transactions between the Guerrerio's corporation, Rey Caulking, Inc. ("Rey Caulking") and two shell corporations, Ajax Caulking and Empire Caulking.¹ On July 1, 1985, defendant Edward Lustig, who was then a subject of the grand jury investigation that resulted in the instant indictment, met with Dominic DeFebo, a cooperating witness. The government secretly recorded the content of that meeting. Defendants have moved to exclude statements made by Edward Lustig to Dominic DeFebo at that meeting.

In late May or early June 1985 during the course of the grand jury's investigation, Internal Revenue Service ("IRS") agents suggested to the AUSA assigned to the case that DeFebo, equipped with a secret wire, should be sent to meet with Lustig to discuss and record matters relevant to the grand jury's investigation. After reviewing the proposal for ten days, the AUSA agreed to the plan.

At about the same time, Lustig was served with a grand jury subpoena to produce Ajax Caulking's records. Although Lustig was granted several adjournments of his grand jury appearance, he appeared at the United States Attorney's office on June 13, 1985 to produce some invoices Ajax had sent to Rey Caulking. At that meeting, Lustig indicated he was attempting to secure counsel, Mr. Robert Ellis, Esq., who in fact later represented Lustig when he appeared before the grand jury on July 1, 1985.

During the evening of July 1, 1985, DeFebo went to the home of Lustig's estranged wife, where Lustig was visiting, and met with Lustig. The two men apparently went for a walk and the conversation that is the subject of this motion ensued. Pursuant to the plan agreed upon by the I.R.S. agents and the AUSA, the following day, DeFebo met with Robert Guerrerio Jr. to arrange a meeting with Robert Guerrerio Sr. At the time of the recordings, all the Guerrerio defendants were represented by counsel and the AUSA was aware of such representation.²

By the present motion, Lustig seeks to have the tape recording of his July 1 conversation with DeFebo excluded from evidence. The Guerrerio defendants also join the motion and further move for exclusion of the recording of Robert Guerrerio Jr.'s conversation with DeFebo of July 2.³ The defendants allege that the AUSA violated DR 7-104(A)(1) because IRS agents recorded the conversations at issue with his knowledge. Defendants conclude that such an ethical violation requires exclusion. The court disagrees and accordingly the motion is denied.⁴

A. Exclusion is not an appropriate remedy

Exclusion is a powerful remedy. It causes otherwise credible, and usually persuasive, evidence not to be considered by a jury. The result of excluding evidence is often that a factually culpable defendant goes unpunished. As Judge Cardozo stated the rule, "The criminal is to go free because the constable has blundered." People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587, cert. denied, 270 U.S. 657, 46 S.Ct. 354, 70 L.Ed. 784 (1926).

Nevertheless, the exclusionary rule has been applied in cases of constitutional violations by law enforcement personnel.⁵ Although the exclusionary rule is most commonly applied to evidence seized in violation of the Fourth Amendment to the Constitution, it is also applicable to violations of the Fifth and Sixth Amendments.

In the case at hand, however, the defendants allege violations by the prosecutor of ethical rules, specifically of DR 7-104(A)(1), as the basis for suppression. DR 7-104(A)(1)⁶ prohibits direct communication by an attorney with a party he knows to be represented by counsel. A violation of attorney disciplinary rules is not of constitutional magnitude and consequently suppression is not constitutionally required. If the evidence in issue is to be excluded at all, it must be excluded pursuant to the court's general supervisory power.

In support of the motion to suppress, the defendants cite the case of United States v. Hammad, ___ F.Supp. ___, No. Cr-87-232 (E.D.N.Y. September 21, 1987) (mem.). In that case, the district court suppressed certain statements made by the criminal defendant to a business acquaintance that was cooperating with the government. That conversation was recorded by a government agent. The court concluded that the cooperating witness was the alter ego of the prosecutor and the conversation constituted a violation of DR 7-104(A)(1). Finding an ethical breach, the court suppressed the statements in question.

The Hammad court seems to have assumed that suppression is a natural consequence of a violation of DR 7-104(A)(1). As noted in Hammad, the leading Second Circuit decision on a prosecutor's violation of DR 7-104(A)(1), United States v. Jamil, 707 F.2d 638 (2d Cir.1983), did not need to decide "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. at 646 (emphasis in original). After discussing the elements of the ethical violation, the Hammad court decided that an ethical violation had been committed. It then summarily concluded that suppression should result.

Although suppression necessarily results from a constitutional violation,⁷ the same result is not a foregone conclusion in the case of an ethical violation by a prosecutor. This court finds that an ethical violation does not compel suppression and moreover, suppression is inappropriate.

It would appear that no federal court has directly addressed the question of whether suppression is compelled or appropriate in the case of a violation of DR 7-104(A)(1). But see Tabbi v. Town of Tanawanda, 111 Misc.2d 641, 444 N.Y.S.2d 560 (Erie Cty. Sup.Ct.1981) (suppression not appropriate remedy for Disciplinary Rule violation). Although there are a number of federal appellate decisions that have addressed the question of ethical violations by federal prosecutors, these cases do not reach the question of the propriety of suppression by holding that there was no ethical violation. See United States v. Sutton, 801 F.2d 1346 (D.C.Cir.1986); United States v. Fitterer, 710 F.2d 1328 (8th Cir.), cert. denied, 464 U.S. 852, 104 S.Ct. 165, 78 L.Ed.2d 150 (1983); United States v. Dobbs, 711 F.2d 84 (8th Cir.1983); 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); 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). This court believes that speculation as to the ethical propriety of a prosecutor's actions is not required to decide such a suppression motion because suppression is an inappropriate remedy.

The exclusionary rule has been the subject of much controversy, even in the context of constitutional violations. See e.g. MacDougall, The Exclusionary Rule and its Alternatives: Remedies for Constitutional Violations in Canada and the United States, 76 J.Crim.L. & Criminology 608 (1985); Posner, Excessive Sanctions for Governmental Misconduct in Criminal Law, 57 Wash.L.Rev. 635 (1982). The Supreme Court, in recent years, has dwelled on the severe costs the exclusionary rule imposes on society.⁸See e.g. United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984); Stone v. Powell, 428 U.S. 465, 489-96, 96 S.Ct. 3037, 3050-53, 49 L.Ed.2d 1067 (1976). Notwithstanding such costs, the exclusionary rule has been consistently applied in cases of constitutional violations. The primary purpose of the exclusionary rule is deterrence. United States v. Leon, 468 U.S. 897, 908-09, 104 S.Ct. 3405, 3412-13, 82 L.Ed.2d 677 (1984); Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). The rule encourages systemic observance of the substantive rights that exclusion seeks to protect. See Dunaway v. New York, 442 U.S. 200, 220-21, 99 S.Ct. 2248, 2260-61, 60 L.Ed.2d 824 (1979) (Stevens, J. concurring) ("The justification for the exclusion of evidence obtained by improper methods is to motivate the law enforcement profession as a whole — not the aberrant individual officer"). The rule is not intended to punish but rather it seeks to create an "incentive to err...