CLARK WADDOUPS, District Judge.
Defendant filed his Motion to Suppress (Dkt. No. 258) on April 13, 2012. The court heard three days of evidence on the Motion to Suppress on November 8, 14, and 28, 2012, and oral argument on April 18, 2013. The parties filed lengthy post-hearing briefs on the Motion to Suppress, including supplemental memoranda relating to a specific legal issue raised during oral argument. In response to material in the Government's Response to Defendant's Supplemental Authorities and Briefing (Dkt. No. 338), Defendant moved to reopen the evidentiary hearing on the Motion to Suppress to question certain witnesses about information and guidance that the Government had obtained from Department of Justice ("DOJ") ethics advisors or the U.S. Attorney's Office's internal professional responsibility liaison — material as to which Defendant argued the Government had now waived privilege as asserted at the earlier evidentiary hearings. (See Def.'s Mot. Reopen Ev. Hrg. [Dkt. No. 340].) After Defendant's Motion to Reopen was fully briefed, the court granted the motion on May 31, 2013. (Dkt. No.
The court granted Defendant's Motion to Reopen Evidentiary Hearing (Dkt. No. 340) on May 31, 2013 (the "Order"). (Dkt. No. 345.) On June 21, 2013, after Defendant filed a Motion to Compel the information the court required the Government to produce in the Order (Dkt. No. 346), the Government filed a Motion for Reconsideration of Order Reopening Evidentiary Hearing and Production of Discovery on Defendant's Motion to Suppress. (Dkt. No. 349.) The court has carefully reviewed the briefing relating to the Government's Motion for Reconsideration and has concluded that it is without merit, though it also vacates its May 31, 2013 Order as moot, in the interest of judicial economy, because it is ready to rule on the Motion to Suppress (Dkt. No. 258) based on the extensive briefing, transcripts, and oral arguments.
In his Motion to Reopen Evidentiary Hearing (Dkt. No. 340), Defendant provided substantive argumentation of law and fact on the issue of whether the Government had waived privilege under the "sword and shield" doctrine. Previously, during the evidentiary hearing on Defendant's Motion to Suppress (Dkt. No. 258), the Government had objected to Defendant's questions surrounding the context of an email used to refresh the recollection of Jennifer Korb, a Government witness who is a former Special Assistant United States Attorney, based on the attorney-client privilege, work product doctrine, and deliberative process privilege. Although the court initially overruled the objection, the Government only produced one page containing the undated email that Ms. Korb had written in December 2008 to the U.S. Attorney's Office's internal liaison for ethics and professional responsibility queries, Ms. Elizabethann Stevens, arguing that this page alone had refreshed Ms. Korb's recollection. The email related to the "Rule 4.2 issue" prosecutors had apparently identified in their preparation to instruct investigators to contact Defendant directly about the subject matter of their investigation. Later in the evidentiary hearing, Defendant was again denied the opportunity to inquire into the substance of any response or opinion received from the DOJ ethics advisors or professional responsibility experts based on the Government's assertion of privilege.
In supplemental briefing surrounding a separate legal issue raised during oral argument on the Motion to Suppress — whether and to what extent courts have allowed investigators (or prosecutors through investigators as their de facto alter egos) to contact represented targets of their investigations for direct questioning in seemingly innocuous interviews (as opposed to covert or undercover contact through informants) — the Government argued that even if Rule 4.2 applied, it had not violated the Rule, and it had actually done more than required to protect Defendant's liberty interests by taking "steps not required by the Constitution, federal statutes or the rules of ethics." (Pl.'s Resp. to Def.'s Suppl. Auth. and Brief. 9
In its Opposition, the Government filed a brief containing one sentence addressing the Motion: "Defendant made an erroneous assertion at oral argument (Tr. 4/18/13 at 22-24) and the government responded to that statement — nothing more." (Pl.'s Resp. to Def.'s Mot. Reopen Suppr. Hrg. 1 [Dkt. No. 342].) The pinpoint citation to the hearing transcript, however, was not on point and related to discussion between the court and Defendant's counsel about the significance of Defendant's keys having been taken from him as a result of being attached to his cell phone with a carabiner. In its Motion for Reconsideration, the Government twice acknowledged that its "initial response to defendant's motion to reopen was purposefully brief." (Pl.'s Mot. Reconsider 1-2 & n. 3 [Dkt. No. 349].)
The Federal Rules of Criminal Procedure do not technically authorize a motion for reconsideration, but the Supreme Court has recognized a place for motions for reconsideration in criminal proceedings and has "noted the `wisdom of giving district courts the opportunity promptly to correct their own alleged errors.'" United States v. Randall, 666 F.3d 1238, 1241-1242 (10th Cir.2011) (quoting United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976)). Relief under this de facto procedure is discretionary, id. at 1243 n. 6, by analogy to the Federal Rules of Civil Procedure. United States v. Barajas-Chavez, 358 F.3d 1263, 1266 (10th Cir. 2004) (noting that appellate review of a court's disposition of a motion for reconsideration under criminal procedure is for an "abuse of discretion" by analogy to the prevailing standard under the rules of civil procedure.) Although motions for reconsideration are also not specifically provided for under the Federal Rules of Civil Procedure, courts entertain them under Rule 54(b), if they are interlocutory, or under Rule 60(b), if they are final. See Raytheon Constructors v. Asarco Inc., 368 F.3d 1214, 1217 (10th Cir.2003). In considering the merits of a motion for reconsideration in a criminal case, analogizing to analysis of such motions in civil cases also provides guidance.
The Tenth Circuit has affirmed that "revisiting" issues in a motion for reconsideration that have already been addressed in the initial briefing "is not the purpose of a motion to reconsider"; more
Defendant is correct in identifying the Government's admission that its initial one paragraph response was "purposefully brief" as fatal to its Motion for Reconsideration. (See Def.'s Opp. Mot. Reconsider 4 [Dkt. No. 358].) "Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice." Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). No such grounds are present here. "Motions to reconsider are not to be used as a second chance when a party has failed to present its strongest case in the first instance." Sec. Serv. Fed. Credit Union v. First Am. Mortgage Funding, LLC, 906 F.Supp.2d 1108, 1111 (D.Colo.2012). All of the legal arguments and facts presented by the Government in its Motion for Reconsideration were available to it at the time it chose to file its one paragraph Response to Defendant's Motion to Reopen the Evidentiary Hearing. The Government should have made those arguments at that time but chose to file one substantive sentence in response instead. A Motion for Reconsideration cannot be used to correct this strategic error. See Servants of the Paraclete, 204 F.3d at 1012.
Moreover, the court is compelled to address the Governments' repeated assertion that its Order manifested "clear error" in its interpretation of the Government's statements about relying on "information and guidance from DOJ ethics advisors" and in its review of the record. The Government's statements in its Supplemental Brief (Dkt. No. 338) and the context in which they were made speak for themselves. The court agrees that Defendant's description accurately describes the context and meaning of those statements. (See Def.'s Opp. Mot. Reconsider 2 [Dkt. No. 358] ("The government purposefully made those assertions in the context of trying to persuade the Court that its actions were `authorized by law' and explicitly as a defense to the `outrageous[ness]' of its misconduct under Fifth Amendment due process considerations.").)
In its Response to Defendant's Motion to Reopen the Evidentiary Hearing, the Government cited to pages 22 to 24 of the April 18, 2013 hearing transcript in support of its one sentence argument there that it had only made the contested statements in its Supplemental Brief to correct Defendant's misrepresentation of the record. But this pinpoint citation was wholly inapplicable to the question at hand. Then, in its Motion for Reconsideration, the Government redirected its accusation that Defendant had misrepresented the record to page 29 of the April 18, 2013 hearing transcript. The sentence that the Government claims constitutes Defendant's misrepresentation of the record is Defendant's argument there that "[t]he government in this case didn't even wait for their own Office of Professional Conduct
Though the court therefore DENIES the Government's Motion for Reconsideration, it nevertheless also VACATES as moot, in the interest of judicial economy, its May 31, 2013 Order (Dkt. No. 345) compelling the reopening of the evidentiary hearing and the production of the materials as to which the Government waived its asserted privilege. The court has carefully reviewed the extensive briefs, transcripts, and oral arguments relating to Defendant's Motion to Suppress and is ready to grant that motion on the basis of this extensive documentation, without needing to expend the court's valuable time and resources in such a reopened hearing.
The court must consider what consequences, if any, follow a lead prosecutor's instructions to federal investigators to initiate pre-indictment ex parte contact with the target of their investigation who prosecutors know is represented by counsel, and to conduct multiple interviews of that person, including through use of questions scripted by the prosecutors and designed to influence the target to waive attorney-client privilege and disclose information about potential trial strategy such as reliance on an "advice of counsel" defense. In doing so, the court must evaluate a relatively unique factual scenario and address abundant but in many cases inapposite case law.
As discussed in more detail below, the court finds, as a preliminary matter, that the Government knew that Defendant was represented by counsel at the time it conducted two ex parte interviews with him in February 2009. Although the court believes that under the unique factual circumstances present in this case, the posture of the Government toward Defendant had shifted from investigatory to prosecutorial by February 2009 (even though Defendant had not yet been technically indicted by that time), the court need not analyze in detail whether Defendant's Sixth Amendment right to counsel had therefore "attached" for suppression purposes because it finds that Defendant voluntarily waived that right in the noncustodial, pre-indictment interviews under recent, controlling Supreme Court precedent. But based on the prosecutors' actual knowledge that Defendant was represented, they violated Rule 4.2 of the Utah
Defendant voluntarily appeared for two interviews with IRS Agent Ronald Marker and FBI Agent Cameron Saxey on February 13, 2009 and February 26, 2009. The interviews related to Defendant's alleged role in a "white collar crime case involving wire fraud, securities fraud, and some tax violations." (Email from J. Korb to E. Stevens, admitted as Gov. Ex. 6 at 11/8/12 Ev. Hrg.) The allegations against Defendant were the focus of a joint investigation and prosecution among the DOJ, the Utah Division of Securities, the FBI, and the IRS that had been in motion in one form or another since 2005, with the U.S. Attorney's Office taking over in approximately February of 2008. Assistant U.S. Attorney Stewart Walz and his colleagues in the prosecutors' office authorized the interviews, which were recorded. In the second interview, the agents posed half a dozen scripted questions provided by the prosecutors, including questions designed to induce Defendant, who was the target of their investigation and whom prosecutors intended to indict, to waive attorney-client privilege and to reveal potential trial strategy such as whether he intended to rely on an "advice of counsel" defense at trial, though he was as yet unindicted. Defendant's statements during these two interviews were integral to the indictment returned against him on May 26, 2009.
Defendant has been a target of this investigation since 2005. At that time, Ms. Jennifer Korb, then an attorney with the Utah Division of Securities (the "Division"), was participating in the investigation on behalf of the Division. At some point during this Division investigation, she also became "cross-designated" as a Special Assistant United States Attorney ("SAUSA") to assist the U.S. Attorney's Office in prosecuting cases. According to Agent Marker, the IRS investigation of Defendant began in 2006. In late 2007, Ms. Korb began coordinating with the U.S. Attorney's Office and the IRS, through Agent Ronald Marker, on the investigation. By early 2008, the Utah Attorney General ultimately decided not to file the case against Defendant. The U.S. Attorney's Office then took charge of the investigation in approximately February 2008, and AUSA Walz was assigned to be lead counsel with assistance, initially, from AUSA Trey Mansfield. Ms. Korb continued in her cross-designated role on the team of prosecutors involved in the investigation. FBI Agent Cameron Saxey was assigned to work on the case in early 2008.
IRS Agent Ronald Marker opened the IRS investigation against Defendant in 2006 and first met him when he visited Defendant's Provo offices with four to six other IRS agents to interview him in March 2007. At that time, attorney Russell Skousen was asked to leave the room while Defendant was read the obligatory Miranda-like "noncustodial statement of rights" required by internal IRS policies to be given when questioning a target of an IRS investigation, which included the statement "I advise you further that you may, if you wish, seek the assistance of any attorney before responding." Defendant invoked his right to have counsel present and asked Mr. Skousen back into the room as his counsel, telling Agent Marker that they preferred to wait until another attorney, Jeffery Thompson, arrived, though Defendant and Mr. Skousen were willing to answer some preliminary questions in the meantime. Based on this interaction, Agent Marker testified that he believed that Defendant "was represented by Skousen and Thompson." (Id. at 11:19-20.) FBI Agent Saxey testified that once he was assigned to the team in early 2008, he became aware of what had transpired in March 2007 between Agent Marker and Defendant's counsel. (Tr. Ev. Hrg. 11/8/12, at 53:11-14 [Dkt. No. 301].) In fact, by February 15, 2008, Agent Saxey had been made aware of Mr. Skousen's representation of Defendant. (Id. at 66:21-67:21.)
Agent Marker also remembered discussing a further attorney, Robert Smith, who was "a tax attorney who was privy to Mr. Koerber's tax situation" and, in fact, he contacted Mr. Smith in August 2007. (Tr. Ev. Hrg. 11/14/12 pt. 1, at 15:9-10; 16: 7, 19-24 [Dkt. No. 304].) Defendant's attorney Mr. Smith, however, refused to speak with Agent Marker at that time because "Mr. Wheeler advised him not to speak with [Agent Marker]." (Id. at 17:12-13.) Agent Marker understood that this referred to Max Wheeler, a local criminal defense attorney, who he came to understand was representing Defendant "somewhere around this time" in August 2007. (Id. at 18:8-9.) Agent Marker also became aware "somewhere along the line" that Defendant "had sought some representation from Randall MacKay" pertaining to issues of securities law during the course of the investigation. (Id. at 19:4-6.) Between March 2007 and February 2009, Agent Marker "spoke to Mr. Wheeler and perhaps one of his associates a couple times" and to "Mr. Skousen on occasion." (Id. at 19:15-17.) Agent Marker is of the opinion that his investigation beginning in 2006 and continuing on into the grand jury investigation after the U.S. Attorney's Office had taken charge of the matter in February 2008 "eventually led to some of the charges that Mr. Koerber faces" under the current Indictment and that, in fact, even the March 2007 meeting at Defendant's offices "played a role in the ultimate indictment." (Id. at 7:11-14; 13:11-13.)
In March 2008, prosecutors from the U.S. Attorney's Office began laying the
(March 21, 2008 Letter from M. Wheeler to U.S. Attorney Tolman, admitted as Def. Ex. H at 11/8/12 Ev. Hrg.)
AUSA Walz knew Mr. Wheeler was representing Defendant even before the March 2008 correspondence. He testified that "[a]t the time I got the case, my understanding was that [Defendant] was represented by Max Wheeler of Snow Christensen & Martineau," that Mr. Wheeler "had represented Mr. Koerber in responding to an IRS summons for records," and that "he was representing Mr. Koerber for a period of time." (Tr. Ev. Hrg. 11/8/12, at 191:14-19 [Dkt. No. 301].) In fact, based on this knowledge, AUSA Walz contacted Mr. Wheeler "sometime in 2008" to ask Mr. Wheeler to advise his client not to contact the agents on the matter after Defendant had attempted to call Agent Marker. (Id. at 192:1-9.) Agent Marker remembers this having happened in "late 2008," though he could not be certain. (Tr. Ev. Hrg. 11/14/12, pt. 1, at 34:4-5 [Dkt. No. 304].) In approximately the Fall of 2008, "or maybe a little later," AUSA Walz denied a request by Agent Saxey for permission to interview Defendant with Agent Marker because he wanted to contact Defendant's counsel first. (Tr. Ev. Hrg. 11/8/12, at 50:11-17 [Dkt. No. 301].) AUSA Walz therefore instructed Agent Saxey not to proceed until he
Ms. Korb also testified about a meeting among this group on the joint prosecution/investigative team (AUSA Walz, SAUSA Korb, and Agents Saxey and Marker) in early December 2008 in which AUSA Walz said he wanted the agents to contact Defendant. AUSA Walz instructed Ms. Korb to "call [Mr. Wheeler] just to check in and see if he was representing Mr. Koerber." (Id. at 173:14-15.) As directed, she called Mr. Wheeler on December 4, 2008. At first, Ms. Korb testified that she asked if Mr. Wheeler represented Defendant and he said he did not and that he had not spoken with Defendant in "many months." (Id. at 149:6-10.) On cross-examination and after having her recollection refreshed with an email she wrote shortly after the phone call, she clarified that she asked him whether he had been retained, to which he replied, "No, I haven't yet." (Id. at 175:19-23.) Ms. Korb reported back to AUSA Walz who then instructed her to write an email to the U.S. Attorney's Office's internal Professional Responsibility Officer, Ms. Elizabethanne Stevens, to seek guidance on the "Rule 4.2 issue" (as highlighted in the subject line of the email) that he had recognized in the situation, given his knowledge of Mr. Wheeler's representation of Defendant since at least March 2008. (Id. at 177:7-11; 230:9-19; Email from Ms. Korb to Ms. Stevens, admitted as Gov't. Ex. 6 at 11/8/12 Hrg.)
Ms. Korb's testimony on cross-examination was consistent with the email, in which she had written that she had asked Mr. Wheeler whether he had been retained to which he had replied that he had not and had not spoken with Defendant in six months. (Gov't. Ex. 6.) She also wrote that Mr. Wheeler had offered to get a message to Defendant and had suggested that the Government could also contact Defendant's other attorney Russell Skousen. Ms. Korb also stated in the email that her supervisor in the Utah Division of Securities had mentioned another attorney, Randy Mackey, representing Koerber in negotiations about a possible administrative/criminal action in early 2007. (Id.) Upon questioning from the court, Ms. Korb acknowledged that she had never made a distinction between Mr. Skousen representing Defendant or Defendant's businesses as "corporate counsel. (Tr. Ev. Hrg. 11/8/12, at 186:20-25 to 187:1-4 [Dkt. No. 301].)
Mr. Wheeler testified that in late 2008 Defendant was "substantially in arrears financially with our firm" and that he told AUSA Walz at the time (when AUSA Walz called him to request that he advise Defendant not to contact Agent Marker) that he had not spoken to Defendant for a "number of months" and mentioned that he personally "would not be working on the Koerber file going forward ... because I hadn't spoken with him." (Tr. Ev. Hrg. 11/28/12, at 9:1-4; 9-12 [Dkt. No. 305].) Mr. Wheeler clarified that he "never ceased representing [Defendant] but I ceased doing work on the file." (Id. at 28:17-19.) And Mr. Wheeler explained that he had told Ms. Korb in the December 4, 2008 telephone call that Defendant "is represented by other counsel," referring
In her brief telephone call with Mr. Wheeler, Ms. Korb did not "ask for his consent to interview or speak with [Defendant] outside of [Mr. Wheeler's] presence," and she did not recall anyone else requesting Mr. Wheeler's consent to contact Defendant outside of his presence. (Tr. Ev. Hrg. 11/8/12, at 185:22 to 186:9 [Dkt. No. 301].) Moreover, Mr. Wheeler did not recall anyone from the U.S. Attorney's Office informing him of the intention to make ex parte contact with Defendant or requesting his consent to do so. (Tr. Ev. Hrg. 11/28/12, at 10:7 [Dkt. No. 305].) "Had it been," testified Mr. Wheeler, "I would have immediately called [Defendant] and told him not to do it. But I did not understand he was going to go in there unrepresented and talk to government agents.... In 45 years of practice, I have never given my permission to let a client talk to the government without counsel present if they were targets." (Id. at 10:7-16.) And although Mr. Wheeler had referred her to Defendant's other attorney, Russell Skousen, neither she nor any other prosecutor or agent contacted Mr. Skousen about whether he represented Defendant or to request consent to interview him outside the presence of counsel. (Id. at 34:7-24.) For his part, Mr. Skousen "had been involved in [Mr. Wheeler's] being retained with Jeff Thompson" and "was aware that [Mr. Wheeler] was working on matters related to the indictment and so forth"; thus, he understood that Mr. Wheeler "was representing Mr. Koerber in February 2009 or around that time period." (Id. at 35:2-4, 7-9.)
Two weeks after Ms. Korb called Mr. Wheeler and wrote her email relating to the "Rule 4.2 issue," both Agents Saxey and Marker still believed that, as of December 16, 2008, Defendant was represented by counsel. Agent Saxey noted this in his report of an interview he conducted with Jewel Kimber Fish, an associate of Defendant. (FBI 302 Report dated December 16, 2008, admitted as Def. Ex. B at 11/8/12 Hrg., at 5.) Agent Saxey testified that this belief as of that date was based on "reading state reports where Mr. Koerber had showed up with his attorney to visit with the state, based upon my conversations with prosecutors, and reviewing past reports, and after talking to Mr. Walz he believed at this time he was represented, that Mr. Koerber was represented." (Tr. Ev. Hrg. 11/8/12, at 73:10-16 [Dkt. No. 301].) Agent Marker testified that it was also his understanding as of December 16, 2008 that Defendant "had access to several attorneys but that Max Wheeler was his criminal defense attorney," and that he had come to consider Mr. Skousen as his personal counsel as well because at one point Defendant "said something to the effect that he takes all his initial legal questions to Mr. Skousen." (Tr. Ev. Hrg. 11/14/12, pt. 1, at 28:5-15 [Dkt. No. 304].)
Despite the Government's awareness of Defendant's representation by multiple attorneys — Russell Skousen, Jeffery Thomspon, Randall Mackey, Robert Smith, Max Wheeler — throughout the course of the investigation
Agent Saxey testified that in his experience he can speak with represented targets of his investigation "when either the lawyer for the witness has consented" or when he has "been instructed by the prosecutors on the case" to contact the person. (Tr. Ev. Hrg. 11/8/12, at 64:11-18 [Dkt. No. 301].) In this case, he had been instructed by AUSA Walz to wait to contact Defendant until the prosecutors "had taken additional steps." (Id. at 87:11-14.) In late January 2009, one of the members of the prosecution team — Agent Saxey believes it was AUSA Walz — said that he could contact and interview Defendant because they had "received an opinion, we've talked to his attorney, something to that effect." (Id. at 86:1-3.) Based on this, at the beginning of February 2009, Agent Saxey believed Defendant was no longer represented by any of the attorneys who he was aware had previously been involved in Defendant's representation. (Id. at 87:15-22.) AUSA Walz deferred to Agent Saxey's memory of his authorizing the first interview in February 2009. (Id. at 229:11-15.) With this authorization, Agent Saxey reached out to Defendant through Jewel Kimber asking Defendant to make contact with him and also left one or more voicemails on Defendant's cell phone to contact him. Exchanging voicemails, Defendant then left a message for Agent Saxey explaining that he had received Agent Saxey's voicemail and had tried unsuccessfully to reach his attorney Max Wheeler, (Tr. Ev. Hrg. 11/14/12, pt. 2, at 5:23-6:17 [Dkt. No. 303]), but that he would be willing to meet with the agents "if it was okay with Mr. Walz." (Tr. Ev. Hrg. 11/8/12, at 24:10-11 [Dkt. No. 301].) Defendant then voluntarily appeared, without counsel, at the FBI's office in Salt Lake City for the first interview with
During the February 9, 2009 interview, Agent Saxey stated that "Rick, you were represented for a while, and we're not permitted to talk to you, but in the future I plan on talking to you about what information you might have." (Tr. 2/13/09 Int., attached as Ex. 10 to Mumford Decl., at 38.) Defendant expressed immediate surprise at Agent Saxey's off-hand remark:
(Id. at 39-40.) At that point Agent Saxey asked Defendant if he wanted to stop the interview and Defendant said "No I'm all right." (Id.) After nearly four hours of interview, however, Defendant reiterated his surprise at the agent's belief that he was not represented: "Uh I'm surprised about the whole Max thing. As far as I'm concerned Max still does represent me. He might be a little pissed that I came and talked to ya." (Id. at 146.)
Agent Saxey became unsure about whether Defendant was, in fact, represented or not after these comments, but he continued the interview and did nothing following the interview to verify whether Defendant was represented. Agent Saxey explained that he "trusted Mr. Walz and the prosecutors I was working with" as to their position on whether Defendant was represented when they had instructed the agents to proceed with the ex parte interview. (Tr. Ev. Hrg. 11/8/12, at 97:6-7 [Dkt. No. 301].) Agent Marker confirmed that he also did nothing during or after the first interview to verify whether Defendant was, in fact, represented by any of the Defendant's attorneys of whom he had personally become aware in connection with the investigation. (Tr. Ev. Hrg. 11/14/12, pt. 1, at 41:13-20; 44:1-3 [Dkt. No. 304].) Agent Marker testified that, to his knowledge, no one on the prosecution team verified whether Defendant was represented following the first interview. (Id. at 44:8.)
AUSA Walz discussed the first interview with the agents before the second interview on February 26, 2009. As to the discussions between the agents and AUSA Walz after the first interview, the AUSA testified that "I'm pretty sure I asked,
Defendant again voluntarily appeared for the second interview at the FBI's office in Salt Lake City. The agents informed him that he was not under arrest or indictment, that he was free to leave at the end of the interview, and that he was "[f]ree to stop and say you want to consult an attorney at any time." (Tr. 2/26/09 Int., attached as Ex. 10 to Mumford Decl., at 2.) Defendant proceeded voluntarily with the interview after receiving this statement.
The Factual Background above substantiates the salient, dispositive facts that shape the court's legal reasoning in granting Defendant's Motion to Suppress, as follows.
The testimony and other evidence in the record, together with both necessary and reasonable inferences that arise therefrom, persuade the court that the Government had actual knowledge that Defendant was represented by counsel at the time of the February 2009 interviews.
First, no doubt can exist as to the Government's actual knowledge that Defendant was represented by counsel before the second interview on February 26, 2009. Defendant expressed during the first interview on February 13, 2009 that he believed he was represented. That, at the very least, should have prompted prosecutors, or the interviewing agents, to reach out to Mr. Wheeler and Mr. Skousen, both of whom Defendant mentioned in his remarks about his representation, to confirm whether Defendant was represented and, if so, whether counsel consented to his being interviewed outside of the presence of counsel.
Second, the court finds unconvincing testimony to the effect that, despite manifest awareness that Defendant was represented by a number of different attorneys throughout the course of the investigation — an investigation on which Agent Marker had been involved since 2006 on behalf of the IRS and in the course of which he had interacted with Mr. Wheeler, Mr. Skousen, Mr. Thompson, and Mr. Smith — prosecutors formulated a belief at some point after December 16, 2008 that Defendant was no longer represented by any of these attorneys. The conversation AUSA Walz remembers with former AUSA Washburn in approximately October 2008 is unreliable in the face of more credible contrary testimony and evidence
Third, when AUSA Walz instructed Ms. Korb at the beginning of December 2008 to check in with Mr. Wheeler about his representation of Defendant because he wanted the agents to be able to interview Defendant, Ms. Korb's query as to whether Mr. Wheeler had been retained did not address the question of whether he was currently representing Defendant. From the record it appears likely that Mr. Wheeler was literally answering the specific question of whether he had been retained when he answered in the negative. And despite his answer that he had not yet been retained, it was open and obvious that he had been representing Defendant as to aspects of this prosecution/investigation since 2007. Though Mr. Wheeler had not yet been retained according to his answer to Ms. Korb in early December 2008, he had already intervened in the Government's attempt to subpoena Defendant as a custodian of records of his defunct companies in March 2008. His strongly worded letter of objection at that time recognized Defendant as the target of the investigation and refused to make him available to appear before the grand jury in that capacity. Nothing in the record provides the basis for a reasonable inference on the part of the Government that Defendant was no longer represented by Mr. Wheeler at any point after March 2008. To the contrary, a necessary inference from all the testimony and evidence in the record is that Mr. Wheeler or attorneys at his firm continued to represent Defendant. Defendant himself believed this when the issue was raised in the first interview on February 13, 2009. Certainly, nothing in the record indicates any reasonable basis for an inference on the part of the Government that any of the other attorneys involved in Defendant's representation throughout the course of the investigation between 2006 and February 2009 had ceased their representation.
In conclusion, the simple fact is that the Government knew that Defendant was represented in this matter as early as March 2007 and reaffirmed in March of 2008 through direct correspondence with Max Wheeler. Nothing occurred at any time before February 13, 2009 that would support a reasonable inference that the representation had changed. And the record supports no inference that Mr. Skousen had ceased representing Defendant, not to mention the other attorneys with whom agents had worked and of whom prosecutors were aware. As the court mentioned during oral argument on April 18, 2013, "it would be so simple to simply call up and say, Max — they have known each other a long time — we want to interview Mr. Koerber, do you have any objection? If they had done that, we wouldn't be here today." (Tr. Hrg. 4/18/13, at 33:18-24 [Dkt. No. 324].) Nothing in the oral argument, the transcripts of the evidentiary hearings, or the voluminous rounds of briefing on this situation has persuaded the court to abandon its observation at oral argument that "the way it was approached at least allows an inference that they didn't want to get that response, they wanted to be coy and say, can we justify saying that he's not represented so we can interview him." (Id. at 34:2-6.) The record supports the court's inference that prosecutors intended to indict Defendant at the time they instructed the investigators to contact him and arrange the interviews, and this desire or focus rationally explains the Government's efforts to "justify saying that he's not represented so we can interview him." In any event, this only relates to Mr. Wheeler — at oral argument the court asked, "why didn't they call up Mr. Skousen and say, we want to talk to him, do you have any objection? All of this could have been avoided so simply, and they either would have said yes or no, and we would not have been here." (Id. at 34:8-12.) Facts responsive to this question never surfaced in either the oral argument or the briefs, except for the Government's tenuous assertion that Mr. Skousen "never indicated that he was involved in the representation in the criminal case." (Id. at 34:18-19.) This response does nothing to raise an inference that he was no longer representing Defendant in this investigation as the Government was aware that he had been since at least March 2007 when Defendant told Agent Marker that he wanted his counsel Mr. Skousen present during the March 2007 meeting.
During oral argument, the court revealed that it was "not inclined to find on this evidence that the defendant, Mr. Koerber, was in custody during either of the interviews." (Id. at 4:4-6.) After carefully reviewing the post hearing briefs, the transcripts of the evidentiary hearing, and the transcripts of both February 2009 interviews, the court remains convinced that both interviews were noncustodial. Defendant voluntarily appeared, openly discussed issues with the agents, spoke most of the time, was told he was not under arrest and would be free to leave, and did leave freely at the conclusion of both interviews. No indicia of custody have emerged in the evidence or arguments. Moreover, even after Defendant raised the concern about the agents' apparent mistaken understanding that he was no longer represented by Mr. Wheeler (and referred also to his other counsel Mr. Skousen), and the agents asked him if he wanted to stop, he said that he was fine to continue.
The court need not evaluate the impact under the Sixth Amendment of the
In Montejo, the Supreme Court went on to explain that "[o]ur precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent." Id. Moreover, a "defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled." Id. (citing Michigan v. Harvey, 494 U.S. 344, 352-53, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990)). Reiterating, "[i]n determining whether a Sixth Amendment waiver was knowing and voluntary, there is no reason categorically to distinguish an unrepresented defendant from a represented one." Id. at 798, 129 S.Ct. 2079. The Court observed that receiving and waiving Miranda rights was sufficient to waive the Sixth Amendment right to counsel as well. Id. at 786, 129 S.Ct. 2079.
Here, Defendant was not in custody at the time of either interview. As a result, the agents were not required to advise him of his rights under Miranda v. Arizona, 384 U.S. 436, 456, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The advisement of rights under Miranda is a prerequisite for admissibility "only where there has been such a restriction on a person's freedom as to render him in custody." Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam). Determining whether someone is in custody for purposes of Miranda is an objective test asking whether "a reasonable person would have felt free to terminate the interview and leave." Yarborough v. Alvarado, 541 U.S. 652, 665, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). Based on "all the
The court finds that Defendant's actions constituted a "voluntary, knowing, and intelligent" waiver of his Sixth Amendment right to counsel. Montejo, 556 U.S. at 786, 129 S.Ct. 2079. This waiver was not connected to a waiver of his Miranda rights, as examined in Montejo, because he was not in custody and was not formally read his Miranda rights, as a result. But the waiver was nevertheless voluntary and effective. When Agent Saxey asked him if he wanted to stop in the first interview when he told the agents that he was represented and he decided to continue, he waived any Sixth Amendment right to counsel that might have attached in this noncustodial, pre-indictment interview. In the second interview, when he was told he could stop at any time and consult an attorney, and he did not do so but voluntarily pressed forward with the interview anyway, he waived any Sixth Amendment right to counsel that might have attached by that time. It should not be overlooked that Defendant is a sophisticated individual with extensive experience in business and previous dealings with the authorities. His voluntary decision to continue with the noncustodial interviews was knowing and intelligent.
The Government violated Rule 4.2(a) of Utah's Rules of Professional Conduct when it contacted and interviewed Defendant knowing him to be represented by counsel without first obtaining his counsel's consent or court approval.
Rule 4.2(a) Utah R. Prof. Conduct (2012). "A person is `known' to be represented when the lawyer has actual knowledge of the representation. Knowledge is a question of fact to be resolved by reference to the totality of the circumstances, including reference to any written notice of the representation." Id. cmt. [21]. And, importantly, "[a] person's knowledge may be inferred from circumstances." Rule 1.0(g) Utah R. Prof. Conduct. The rule applies to prosecutors practicing before the District Court for the District of Utah. DUCivR 83-1.1(g); DUCivR 83-1.5.1(a).
As a preliminary matter, the Government argues that Comment [14] shelters it from the Rule's prohibition. (See, e.g., Pl.'s Resp. to Def.'s Suppl. Mot. Supp. 75-76 [Dkt. No. 320].) Comment [14] provides, in relevant part, that "[n]othing in this Rule, however, prevents law enforcement officers, even if acting under the general supervision of a government lawyer, from questioning a represented person. The actions of the officers will not be imputed to the government lawyer unless the conversation has been `scripted' by the government lawyer." Rule 4.2 Utah R. Civ. P. cmt. [14]. The court agrees that this would be the Government's strongest grounds under the circumstances and facts in this case to avoid a violation of Rule 4.2. Comment [14] effectively ties in to the "alter ego" analysis — in certain circumstances "enforcement officials are agents of the prosecuting party." United States v. Thomas, 474 F.2d 110, 112 (10th Cir. 1973); United States v. Ryans, 903 F.2d 731, 735 (10th Cir.1990) ("The parties do not dispute the applicability of [the no-contact rule] to criminal cases, to public prosecutors, or to their agents, when they act as the `alter ego' of prosecuting attorneys."); cf. United States v. Hammad, 858 F.2d 834, 840 (2d Cir. 1988) (holding that "artfully contrived lawyer's devices" can "shift the relationship between prosecutor and informant" so that the "informant becomes the prosecutor's alter ego and engages in communication proscribed by" the no-contact rule.).
Here, the prosecutors discussed their desire and intention with the investigative agents to contact and interview Defendant but told them to wait until they gave further instruction to proceed with such ex parte contact. The agents understood that the prosecutors were looking into whether they would be able to make such contact. Eventually, the prosecutors told
The court has already expressed its finding that the Government knew Defendant was represented in the matter when prosecutors instructed the agents to contact and arrange the interviews. The Government,
In Ryans the Tenth Circuit reversed the District Court's suppression of two taped pre-indictment, noncustodial conversations between the defendant and an undercover informant working for investigators, holding that the operative no-contact rule at the time, DR 7-104(A)(1) of the Model Code of Professional Responsibility,
The Government's citation to and reliance on Ryans to justify its approach in instructing the agents to contact Defendant outside the presence of his known counsel is misplaced. First, despite broad language in the Court's analysis, Ryans (and its progeny, including in other jurisdictions) related to covert investigation techniques in the noncustodial, pre-indictment investigation of a represented target. In supplemental briefing, the Government did not provide any cases in which undercover or covert police operations did not similarly define the analysis. Ryans is therefore straightforwardly distinguishable on that basis alone, given that, in this case, the Government initiated overt communications with Defendant rather than pursuing the investigation through use of an undercover informant as in Ryans or through other covert means.
It is true that Ryans links the applicability of the version of the no-contact rule at issue there to the timing of the attachment of the Sixth Amendment right to counsel. Ryans, 903 F.2d at 739. But the court finds that the 2005 revisions to the language of Utah's Rule 4.2 must necessarily sever this link. Citing the Sixth Amendment analysis controlling in United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), the Tenth Circuit emphasized the initiation of adversary proceedings as the trigger for application of the no-contact rule applicable in Ryans as well. Ryans, 903 F.2d at 739 (citing Gouveia for the principle that the "Sixth Amendment right to counsel attaches only where the accused [is] confronted, just as at trial, by the procedural system, or by his expert adversary, or both."). Tellingly, this conclusion turned specifically on the Ryans Court's analysis of the word "party" rather than "person" in the no-contact rule applicable in that case: "In contrast to DR 7-104(A)(2), which prohibits a lawyer representing a client from giving advice to a `person' who is not represented by counsel, DR 1-704(A)(1) [the no-contact rule] prohibits communications with a `party.'" Id. Pressing on with this formalistic, syntactical analysis, the Tenth Circuit referred to the definition of "party" in Black's Law Dictionary to support the premise that the
The court agrees with Ryans that the difference between use of "party" and "person" in the language of the no-contact rule is meaningful.
In fact, the opinion provided valuable interpretive guidance by clarifying that "Rule 4.2 restrictions are intended to apply to `represented persons'" as well (though at the time the Utah rule used the word "party"). Thus, "a prosecutor would violate the Utah Rules of Professional Conduct if he made an ex parte contact, or caused another to make an ex parte contact, with a person the prosecutor knew was represented by counsel in the matter being investigated unless the prosecutor obtained the consent of that person's lawyer." Id.
As the Government has argued, the Ethics Advisory Opinion is not binding or authoritative for the court's analysis. (Pl.'s Resp. to Def.'s Mot. Supp. 18 n. 10 [Dkt. No. 281].) Rather, the opinion's significance lies in the insight it gives into the intent of Rule 4.2 in Utah, particularly after the Utah Supreme Court approved the 2005 wording changes, including changing "party" to "person." The Ethics Advisory Committee had already noted in the 1996 opinion that "in partial response to this confusion over `party' v. `person,' the American Bar Association has recently amended Model Rule 4.2 to change the term `party' to `person.'" Id. And in 2005, the Utah rule was also changed accordingly, in keeping with the interpretive framework described in the 1996 opinion and recognized by the ABA. Because the Utah Rule refers to a "person" rather than a "party," the link forged by the Ryans Court between the applicability of the no-contact rule and the attachment of the Sixth Amendment right to counsel has come undone in Utah.
The Tenth Circuit's passing reference to Ryans in the more recent case United States v. Mullins, 613 F.3d 1273 (10th Cir.2010) does not rehabilitate this approach, as the Government suggests. Mullins, once again, concerned the use of an undercover informant in obtaining statements from a target of an investigation. It is inapposite on that basis alone. In addition, however, the Tenth Circuit was confronted with a version of the no-contact rule from Colorado that retained the word "party" instead of "person" as in Ryans, thus providing the Court with no basis to consider this important distinguishing factor from Ryans. Id. at 1288-89. As a result, the Mullins Court predictably followed Ryans with virtually no analysis, stating simply that "Rule 4.2 applies, like the Sixth Amendment, only once adversary criminal proceedings have commenced." Id. at 1289. But this conclusion is untenable here, where both the nature of the ex parte contact (overt vs. covert communications during investigation) and the language of the no-contact rule ("person" instead of "party," expressly rendering the non-contact rule applicable regardless of whether "whether or not the person is a party to a formal legal proceeding") are facially distinguishable. Mullins, therefore, is not controlling.
The court finds therefore that the current Utah Rule 4.2(a) applies more broadly than the Oklahoma rule under consideration in Ryans and prohibits overt ex parte communications with any person known to be represented in the matter
Finally, the Sixth Amendment analysis is not coextensive with the no-contact rule
Id. at 112. This paramount holding — that the prohibition of the no-contact rule is "not something which the defendant alone can waive" — is reflected in one of the comments to the Rule: "This Rule applies even though the represented person initiates or consents to the communication." Rule 4.2 Utah R. Prof. Conduct, cmt. [4].
The significance of the court's ruling — that Utah Rule 4.2(a) prohibits overt ex parte communications with any person known to be represented whether or not the person is a party to a formal legal proceeding, unless, of course, authorized "by any law, rule, or court order" — is its implications for Defendant's Fifth Amendment due process guarantee discussed below.
The Government's Rule 4.2 violation denied Defendant due process under the Fifth Amendment. A formidable body of precedent, though not without substantial wrinkles, establishes that the Government's failure to comply with its own internal agency policies can constitute a denial of due process if those policies are publicly known and intended to protect citizens' constitutional rights. Much of this precedent cites to, or stems from, Accardi v. Shaughnessy, a deportation case in which the Board of Immigration and the DOJ failed to follow their own established procedures and therefore effectively denied due process to the petitioner. 347 U.S. 260, 268, 74 S.Ct. 499, 98 L.Ed. 681 (1954), superseded on other grounds, as stated in LaGuerre v. Reno, 164 F.3d 1035 (7th Cir.1998) (changes to the applicable statutory procedures). But in an even older case laying the foundation for this rule, Bridges v. Wixon, the Supreme Court held that "one under investigation ... is legally entitled to insist upon the observance of rules" promulgated by an executive or legislative body for his protection. 326 U.S. 135, 153, 65 S.Ct. 1443, 89 L.Ed. 2103
Perhaps the most succinct articulation of this principle was formulated by the dissenting opinion in United States v. Thompson, 579 F.2d 1184 (10th Cir.1978), though developments in this area of law during intervening decades, particularly United States v. Caceres (discussed below), have arguably narrowed and added nuance to the application of this rule. The Thompson majority had found that the internal policy at issue — the DOJ's Petite policy requiring involvement of the Attorney General in the authorization process for dual state-federal prosecutions with double jeopardy implications — had not been violated simply because the required recommendation and authorization had been delayed. Id. at 1188-89. Also, the Thompson Court effectively described the policy as an internal measure ensuring orderly administration consistent with federalism concerns and not a policy giving rise to or protecting rights because such double jeopardy scenarios are a function of the dual-sovereignty inherent in the federal system. Id. at 1188. Disagreeing, the dissent first argued in favor of the policy's rights-protecting nature, then situated the policy within the due process jurisprudence relevant here: "It would not seem necessary to discuss at length the cases which require an agency to adhere to the policy and regulations it promulgates. The cases are especially clear in the Internal Revenue Service rule problems." Id. at 1191 (citing United States v. Heffner, 420 F.2d 809 (4th Cir.1969) and United States v. Leahey, 434 F.2d 7 (1st Cir. 1970)). Setting aside the dissent's alternative substantive view about the Petite policy, its explanation of the Accardi rule is instructive for the present case:
Id. Without thereby joining the Thompson dissent in its substantive disagreement with the majority's holding in Thompson, the court looks to this statement by the dissent as an accurate, useful distillation of the contours of this area of law.
The Thompson dissent appropriately cites Heffner and Leahey as primary examples of the application of this rule of law. In Heffner, the defendant appeared voluntarily at the local IRS office for two interviews (nine months apart) about excess tax exemptions he had intentionally wrongfully claimed in an attempt to get the government's attention in the mistaken belief that it would then intervene in a
Citing to Accardi, the Heffner Court held that "[a]n agency of the federal government must scrupulously observe rules, regulations, or procedures which it has established. When it fails to do so, its action cannot stand and courts will strike it down." Id. at 811 (citing other cases applying the Accardi rule). The Fourth Circuit explained that "[i]t is of no significance that the procedures or instructions which the IRS has established are more generous than the Constitution requires." Id. at 812. "Nor does it matter that these IRS instructions to Special Agents were not promulgated in something formally labeled a `Regulation' or adopted with strict regard to the Administrative Procedure Act; the Accardi doctrine has a broader sweep." Id. (citing cases in which the rule applied to an Army bulletin, an FCC rule, and a Department of Defense directive). The cases applying the Accardi rule to various agency policies, directives, and rules, noted the Heffner Court, "are consistent with the doctrine's policy to prevent the arbitrariness which is inherently characteristic of an agency's violation of its own procedures." Id. And the Heffner Court identified a salutary effect of applying the Accardi rule to the internal IRS policy — a salutary effect that applies equally in the present case. Reversing the district court's decision to admit the agents' testimony concerning the defendant's incriminating statements "would not only have the salutary effects of encouraging IRS agents to observe their own procedures,... but would assist the IRS in fulfilling its own important stated purpose in requiring that the warnings be given." Id. at 813 (internal citation omitted). And it is possible that "defendant, alerted to the prosecutorial purpose of the interview, would have requested counsel." Id. The sound reasoning evident in Heffner's application of the Accardi rule provided occasion for further explanation in Leahey.
The First Circuit in Leahey followed Heffner in applying the Accardi rule, again to a situation in which IRS agents did not follow internal IRS procedure in giving certain warnings upon initial contact with targets of their investigation. 434 F.2d 7 (1st Cir.1970). "Relying on the general principle that due process requires government agencies to follow their specified procedures and on [Heffner]," the district court granted the defendant's motion to suppress and the First Circuit affirmed. Id. at 7 & 11. The Leahey Court first clarified that Miranda on its own would not be held to apply to IRS investigations in addition to police investigations. Id. at 8. But in establishing the internal policy described in Heffner, the IRS had taken the initiative on its own to comply with the Supreme Court's request in Miranda to find "increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws." Id. (quoting Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)).
Despite the stated rights-protecting purpose of the IRS procedures (as also explained in Heffner), in Leahey the Government
The Leahey Court agreed with the Government's contention that "agencies have no power to impose exclusionary rules on the courts" but dismissed it as specious with reference to the facts at issue. "In form the I.R.S. announced procedure has nothing to do with admissibility. The decision as to the exclusionary implications of a violation of the procedure is ours, and based on our sense of the duties and rights so created." Id. at 10. In light of this consideration, "[t]he crucial question is whether we must exclude this evidence so that agencies will be compelled to adhere to the standards of behavior that they have formally and purposely adopted in the light of the requirements of the Constitution, even though the standards may go somewhat further than the Constitution requires." Id. Far from spurring endless motions to suppress, as the Government argued, this would result in "a clear rule excluding admissions secured by an agent who has not conformed to required procedure" that "would be more likely to decrease, rather than increase, the number of such motions and hearings." Id. The rule would overcome a natural disincentive within agencies to monitor the conduct of their agents. Id. And, from a policy perspective, it would prevent the erosion of "citizens' faith in the even-handed administration of the laws." Id. Importantly, the First Circuit added that "[w]e do not say that agencies always violate due process when they fail to adhere to their procedures." Id. at 11. The key inquiry is whether such a deviation from agency procedure would "deprive the person interviewed of protection that was afforded to other taxpayers."
The Tenth Circuit's approach to both Heffner and Leahey has also focused on an agency's creation of an internal duty protective of citizens' rights as a touchstone of the analysis, following the priority those Courts gave to this consideration in their analyses. For instance, in Rosenberg v. C.I.R., the taxpayer appealed from the Tax Court's decision in a civil audit matter
"Both Heffner and Leahey are grounded on due process," explained the Rosenberg Court. Id. at 532. Accardi, it added, concerned an internal agency regulation that "was for the protection of the person sought to be deported." Id. Clarifying, the Court noted that "[i]n Leahey the Court did not say that `agencies always violate due process when they fail to adhere to their procedures.'" Id. Rather, "[i]t pointed out that the procedures in question were designed to protect the constitutional rights of taxpayers and that `our result would have been different if the IRS had violated a procedure designed to promote some other agency goal.'" Id. Following this guidance from Leahey, the Rosenberg Court held that the IRS procedures at issue "are not designed to protect the constitutional rights of the taxpayer but rather provide methods by which the Audit Division's determination can be checked without the expense and delay of litigation." Id. at 533. In other words, the procedure in Rosenberg, like that in United States v. Lockyer, 448 F.2d 417 (10th Cir.1971),
The most recent court to consider Heffner and Leahey questions their continued viability based on United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979), though this does not persuade the court that the reasoning outlined above is no longer sound guidance in applying and clarifying the Accardi rule. In United States v. Korn, No.: 11-cr-00384-WMS-JJM, 2013 WL 2898056, 2013 U.S. Dist.
In Caceres, the defendant tried multiple times to bribe an IRS official in connection with an audit, and several of these conversations were monitored. 440 U.S. at 746, 99 S.Ct. 1465. The defendant moved to exclude the recordings and testimony of monitoring agents because internal IRS authorization procedures for such monitoring had not been followed in all respects, resulting in a delayed authorization from the responsible Deputy Assistant Attorney General that came too late for two of the monitorings at issue. Id. at 748, 99 S.Ct. 1465. "In this case ... unlike Bridges v. Wixon, the agency was not required by the Constitution or by statute to adopt any particular procedures or rules before engaging in consensual monitoring and recording." Id. at 749-50, 99 S.Ct. 1465. The Supreme Court therefore reversed the District Court and Ninth Circuit,
This eminently reasonable, pragmatic conclusion need not, in the court's view, undermine the equally reasonable articulation of the law in Leahey (and Heffner, following Accardi), much less the holdings in any of those cases. Rather, the agency action in Caceres, substantively different in rights-protecting purpose and due-process scope from the Miranda-like violation in Leahey and Heffner (though found in the same IRS Manual), occurred in a "situation in which no one questions that monitoring was appropriate and would have certainly received Justice Department authorization, had the request been received more promptly." Caceres, 440 U.S. at 757, 99 S.Ct. 1465. "In these circumstances, there is simply no reason why a court should exercise whatever discretion it may have to exclude evidence obtained in violation of the regulations." Id. In Caceres, the defendant could not "reasonably contend that he relied on the regulation, or that its breach had any effect on his conduct." Id. at 753, 99 S.Ct. 1465. But here, as in both Heffner and Leahey, the different IRS procedures at issue were promulgated to protect citizens' rights and implicate due process. As expressed by the Heffner Court, it is possible that had the agency complied with the procedures, the "defendant, alerted to the prosecutorial purpose of the interview, would have
Nevertheless, as noted above, the Korn Court recently relied on Caceres to question the "continued validity" of Leahey and Heffner, finding that "[t]he exclusionary rule does not apply when IRS agents violate internal regulations, unless compliance with those regulations are mandated by the Constitution or statute." Id. at *2, 2013 U.S. Dist. LEXIS 83889 at *6 (citing Caceres and United States v. Boykoff, 186 F.Supp.2d 347, 350 (S.D.N.Y.2002)). But the Caceres Court's continued reliance on Bridges allows for the continued vitality of both Heffner and Leahey; the rule is context-specific, to be determined on a case-by-case basis. Due process was implicated in Bridges (and Heffner and Leahey, neither of which, incidentally, were cited by the majority in Caceres, though the dissent focused on them); it was not in Caceres. But the approach taken in Korn appears typical of the broader reception of Caceres. See, e.g., United States v. Kim, No.: CR 10-00171-RS, 2010 WL 3490228, at *4 n. 5, 2010 U.S. Dist. LEXIS 98269, at *15-*16 n. 5 (N.D.Cal. Sept. 3, 2010) (noting that in Caceres, "the Supreme Court has held that, absent any statutory or Constitutional violation, the exclusionary rule is inapplicable where evidence is obtained solely in violation of an IRS regulation").
Though the court finds that this reception unnecessarily dilutes the general principle underlying the Accardi-Bridges body of law,
Accepting the narrowing effect of Caceres on the Accardi rule, the court must abstain from applying the exclusionary rule unless compliance with internal agency regulations is "required by the Constitution or by statute" as in Bridges v. Wixon. Caceres, 440 U.S. at 749-50, 99 S.Ct. 1465. In response to the DOJ's efforts in the 1990s (in the "Thornburgh Memorandum" and subsequent regulations codified at that time at 28 C.F.R. Pt. 77) to create regulations that would exempt federal prosecutors from compliance with certain state ethics rules, notably certain aspects of the no-contact rule, Congress passed the McDade Amendment, or the Citizens Protection Act of 1999 (the "Protection Act"). 28 U.S.C. § 530B. Under the Protection Act, "an 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).
Pursuant to the Protection Act, therefore, a prosecutor's failure to comply with the applicable no-contact rule is now also a violation of a federal statute. Moreover, the statute protects citizens' rights against attempts to circumvent them by federal prosecutors or other Government attorneys, thus implicating due process. In addition, "[a] Department attorney shall not direct an investigative agent acting under the attorney's supervision to engage in conduct under circumstances that would violate the attorney's obligations under section 530B." 28 C.F.R. § 77.4 (2013).
The statutory ethics violation is also a violation of publicly known internal policies of the agencies that protect citizens' rights and implicate due process. With reference to the no-contact rule in particular, the United States Attorneys Manual provides that "[d]epartment attorneys should be guided by the relevant state's or federal district court's [no-contact] rule and interpretations of that rule ...." 9 United States Attorneys Manual § 13.296 (2013) (emphasis added).
Id. at § 13.297.
The agents working under AUSA Walz's supervision in this investigation had independent guidance as to the importance of the no-contact rule and its requirements. Agent Saxey admitted this, stating to Defendant during the first interview, "Rick, you were represented for a while, and we're not permitted to talk to you, but in the future I plan on talking to you about what information you might have." (Tr. 2/13/09 Int., attached as Ex. 10 to Mumford Decl., at 38.) This prompted Defendant's objection to the suggestion that he was not represented and therefore the agents could speak to him then and in the future. Not a lawyer, Defendant apparently believed that the agents were permitted to speak to him as long as AUSA Walz had authorized it even though Defendant had not been able to reach Mr. Wheeler before agreeing to voluntarily appear for the first interview. (See Tr. Ev. Hrg. 11/08/2012, at 24:10-11 [Dkt. No. 301].)
Agent Marker, as the investigating IRS agent, was subject to the same agency procedures safeguarding citizens' rights and hedging against due process concerns that were at issue in Heffner and Leahey. The IRS Manual provides that "the special agent will always inform the subject of his/her constitutional rights at the beginning of a formal question and answer interview, even if the subject had previously been advised." IRS Manual § 9.4.5.11.3.1(3) (05-15-2008).
The prosecutors' and investigators' statutory violation of the no-contact rule and concurrent departure from internal policies of the DOJ, FBI, and IRS that protect citizens' rights denied Defendant due process under Accardi and its progeny. "The exclusionary rule mandates suppression of evidence garnered in contravention of a defendant's constitutional rights and protections. The rule is thus intended to: deter improper conduct by law enforcement officials; preserve judicial integrity by insulating the courts from tainted evidence; and maintain popular trust in the integrity of the judicial process. Anything short of exclusion ... would be `worthless and futile' in securing the rule's goals." Hammad, 858 at 840 (internal citations omitted). Moreover, "[t]hese same needs arise outside the context of constitutional violations. The principles governing the admissibility of evidence in federal criminal trials have not been restricted to those derived solely from the Constitution. Hence, the exclusionary rule has application to governmental misconduct which falls short of a constitutional transgression." Id. at 840-41 (internal quotation marks, alterations, and citations omitted). "Indeed, suppression may even be ordered for violations of administrative regulations." Id. at 841 (citing Caceres).
The Hammad Court found that the exclusionary rule would apply to a violation of the no-contact rule "pursuant to the federal courts' supervisory authority." Id. (holding, however, that suppression was inappropriate in that particular case because the "law was previously unsettled in this area"). The law is now long-settled in this area, particularly in the Tenth Circuit where Thomas has been law since 1973. The prosecutors and investigators in this case had the benefit of substantial precedent and detailed internal procedures safeguarding citizens' rights in this area. "The decision as to the exclusionary implications of a violation of the [internal agency] procedure is [the court's], and based on [its] sense of the duties and rights so created." Leahey, 434 F.2d at 10. Suppressing the two interviews and all fruit derived therefrom is necessary here to protect Defendant's due process rights. And, from a policy perspective, excluding the evidence under the circumstances of this case will help overcome a natural disincentive within the agencies involved to monitor the conduct of their attorneys and agents and ensure their compliance with internal procedures that protect citizens' rights and implicate due process. In addition, suppression in this case will help prevent the erosion of "citizens' faith in the evenhanded administration of the laws." Id. Accordingly, the court excludes Defendant's statements from both the first and second interviews and all fruits derived therefrom.
The court DENIES the Government's Motion to Reconsider (Dkt. No. 349) but simultaneously vacates as moot, in the interest of judicial economy, its May 31, 2013
The court GRANTS Defendant's Motion to Suppress (Dkt. No. 258).
The court also therefore VACATES as moot Defendant's Motion to Compel (Dkt. No. 346) and TERMINATES the Government's Motion in Limine (Dkt. No. 292) as moot.
Leahey, 434 F.2d at 11.
