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July 1, 1982


The opinion of the court was delivered by: WEINSTEIN



 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:

John Sayegh: Why the merchandise was seized why why did they do that?
Ben Jamil [Defendant]: I can't talk about that.
John Sayegh: (Arabic).
Joe Sayegh: (Arabic).
Barry Slotnick [Attorney for Defendant]: On advice of his attorney because this litigation going back and forth I don't want him to discuss it.
Joe Sayegh: (French)
Barry Slotnick: Ah the letter of credit expires October 31, 1979.
Joe Sayegh: (French).
John Sayegh: This is for the a second.
Joe Sayegh: (Arabic).
Ben Jamil: You said transit Jedda, I said in order for me to get a export license I need a final destination. He said I can't give you a final destination then I won't be
John Sayegh: To Beruit destination
Ben Jamil: You never said that, you never said that
Joe Sayegh: To Beruit (Arabic),
Ben Jamil: You decide.
Joe Sayegh: To Beruit from shipment to transit Jedda to Beruit.
Barry Slotnick: Can I do the following let me make a suggestion you obviously want the merchandise to Beruit I have to find out what proper and appropriate licenses that Mr. Jamil should submit and he'll do it legally. He is not going to do anything illegal that's why he wouldn't ship it in the first place. Now if you want this merchandise Mr. Jamil will check through my office to find out what licenses are necessary.
Joe Sayegh: No problem.
Barry Slotnick: It has got to be done legally.
Joe Sayegh: (Arabic).
John Sayegh: A he wants to get ...

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