89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986) (quotation omitted).
The sixth amendment right to counsel was also violated by the questioning of Ms. Chen. Some weeks before her arrest Ms. Chen was subpoenaed to give handwriting exemplars to the grand jury. Richard Kwasnik, Esq., was appointed by the court to be her counsel. In filling out the necessary form, the Magistrate Judge's secretary checked a box indicating that Ms. Chen was a "jury witness." The secretary also typed "for all purposes" in another box on the appointment form.
Ms. Chen was represented by Mr. Kwasnik when she was arrested and she gave her statement. The practice is for counsel appointed for all purposes to remain responsible for the client until he or she is relieved. Cf. 18 U.S.C. § 3006A(c) (1985) ("represented at every stage" after initial appearance before Magistrate Judge). Where a person becomes a target of an investigation and then a defendant, the client-attorney relationship "for all purposes" continues. Mr. Kwasnik testified that he assumed that he would continue to represent Ms. Chen if she were later indicted. In fact, the Clerk's Office follows the practice of notifying previously appointed CJA counsel when an indictment is handed down.
Both the postal inspectors and the United States Attorney should have been aware of the existing attorney-client relationship since it was a matter of public record. Whether they were in fact unaware is, however, not decisive. Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 2101, 100 L. Ed. 2d 704 (1988) ("an officer who proposes to initiate an interrogation [must] determine whether the suspect has previously requested counsel"). Appointment of counsel to serve generally was the equivalent of a prior request by her for counsel, mandating discontinuance of any interrogation under Miranda. Ms Chen should not have been questioned without her counsel's having been informed unless, with a clear understanding on her part of her right to continued representation and to silence, she deliberately decided to talk without informing him. "When the process shifts from investigatory to accusatory . . . the accused must be permitted to consult with his lawyer . . . ." Escobedo v. Illinois, 378 U.S. 478, 492, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964). See Pamela Karlan, Discrete and Relational Criminal Representation: The Changing Vision of the Right to Counsel, 105 Harv. L. Rev. 670, 697-703, 724 (1992) (questioning reluctance to prohibit investigative contact with already-represented individual). But cf. Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986) (failure to inform defendant that his sister had engaged an attorney on defendant s behalf did not bar questioning in absence of counsel).
There are times when a client wants to conceal from her attorney that she is talking to the authorities. She is entitled to do so. This was not such an occasion.
The motion of Ms. Chen to suppress is granted. The motion of Mr. Fung to suppress is denied.
Jack B. Weinstein
United States District Judge
Dated: Brooklyn, New York
January 7, 1992
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