with professional ethics, to "employ legitimate investigative techniques in conducting or supervising criminal investigations, and the use of informants to gather evidence against a suspect will frequently fall within the ambit of such authorization." Hammad, supra.
In Hammad, the prosecutor issued a sham subpoena for an informant, who then met with a suspect and recorded their conversation. The Second Circuit found that the false subpoena was used "to create a pretense that might help the informant elicit admissions from a represented suspect." Hammad, supra, at 840. Under those circumstances, the use of that technique, which "contributed to the informant's becoming the alter ego of the prosecutor," was held to have violated the disciplinary rule. Hammad, supra. The court made clear, however, that "the use of informants by government prosecutors in a preindictment, non-custodial situation, absent the type of misconduct that occurred in this case, will generally fall within the 'authorized by law' exception to DR 7-104(A)(1)." Hammad, supra, at 839.
The Second Circuit has recently revisited the application of DR 7-104(A)(1) to a criminal investigation. In United States v. DeVillio, 983 F.2d 1185 (2d Cir. 1993), the court found no violation of the disciplinary rule where preindictment conversations with two suspects, who were represented by counsel, were recorded by a government informant. The court stated that absent "evidence of any violation rising to the level of the one . . . considered in Hammad," prosecutors cannot be held to "overstep the broad powers of their office" thereby violating the disciplinary rule. DeVillio, supra, at 1192.
Scozzafava contends that Mehltretter, as the Assistant U.S. Attorney responsible for the investigation, violated the disciplinary rule in this case because she participated in originating the plan of using the informant to communicate with an individual known to be represented by counsel, participated in specifying the topics to be discussed, issued a directive that all contacts between Scott and Scozzafava were to be recorded, required Scott to record conversations as part of his plea agreement, and purportedly misapprehended the decision in Hammad. See Defendant's Memorandum of Law in Support of Motion, filed February 26, 1993, at p. 15. The court is unconvinced that any of these factors take the conduct at issue outside the "authorized by law" exception of DR 7-104(A)(1).
The Hammad court clearly intended that prosecutors be able to utilize undercover informants in a pre-indictment, non-custodial situation, in the absence of some egregious misconduct suggestive of pretense or unfair dealing which would disqualify the Government's behavior from reliance upon the "authorized by law" exception. Hammad, supra, at 840. Here, Mehltretter employed no illegitimate investigative technique, akin to the sham subpoena in Hammad, to elicit admissions from Scozzafava. The court notes that, to the extent that Mehltretter set the parameters of Scott's discussions with Scozzafava, Scott operated at Mehltretter's direction and could be considered her "alter ego" to meet the threshold, established by Hammad, for applying the disciplinary Rule. See Hammad, supra. While Mehltretter did not directly supervise Scott's day-to-day undercover activity, her general supervisory authority over the investigation makes it appropriate to attribute Scott's conduct to her for purposes of the required Hammad analysis. In the absence of some misconduct on her part, however, this conclusion does not mandate a finding that Mehltretter violated the disciplinary rule under the analysis of Hammad.
No district court in this Circuit, which has applied Hammad, has found a violation of the disciplinary rule.
See United States v. Santopietro, 809 F. Supp. 1008 (D.Conn. 1992); United States v. Harloff, 807 F. Supp. 270 (W.D.N.Y. 1992); United States v. Buda, 718 F.Supp 1094 (W.D.N.Y. 1989); United States v. Chestman, 704 F. Supp. 451 (S.D.N.Y. 1989). In Harloff and Buda, supra, Chief Judge Telesca found that the conduct of a prosecutor, who acquiesced to the wiring of an informant, came within the "authorized by law" exception to DR 7-104(A)(1). In Buda, the prosecutor "in no way attempted to direct the content of the conversation with the defendant so as to beguile him into giving his case away." Buda, supra, at 1096. This court does not read the facts in Buda or Harloff as suggestive of possible conduct that would violate DR 7-104(A)(1). In the absence of misconduct, similar to that by the prosecutor in Hammad, which exceeds the lawful authority of the Government attorney, no violation of DR 7-104(A)(1) occurs where a prosecutor proposes the wiring of an informant for the purpose of recording conversations with a represented target of a criminal investigation, or even suggests the topics to be discussed, such actions being inherent in the exercise of the Government attorney's authority to investigate effectively and prosecute crimes.
Under Hammad, DR 7-104(A)(1) is applicable to Government attorneys during pre-indictment non-custodial investigative activity using undisclosed informants to consensually intercept conversations with represented targets, but the use of such undisclosed informants acting at the prosecutor's direction is an activity "authorized by law." Such activity is therefore exempt from the rule, regardless of whether the target is represented, unless the conduct of the prosecutor is determined to be ethically or otherwise improper to such an extent as to place it outside the "authorized by law" exception. The analysis then is properly focused on whether the professional behavior of the prosecutor merited judicial approbation and sanctions, either by disciplinary action, suppression of evidence, or both, which is "best accomplished by case-by-case adjudication . . . ." Hammad, supra at 840.
This approach is consistent with the purpose of the disciplinary rules, which is the regulation of attorney conduct, rather than the protection of individual rights. See, Hammad, supra, at 839 (". . . Code [of Professional Responsibility] is designed to safeguard the integrity of the profession and preserve public confidence in our system of justice"). See also, People v. Green, 405 Mich. 273, 274 N.W. 2d 448, 454 (Mich. 1979) (the provisions of the Code of Professional Responsibility are "not constitutional or statutory rights guaranteed to individual persons"). The purpose of DR 7-104(A)(1) is to "preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer." ABA/BNA Lawyers' Manual on Professional Conduct § 71:302 (Robert S. Wells, et al eds., 1989). Thus, even if the decision to further investigate Scozzafava, using Scott as an undisclosed wired informant, was not based on information of suspected on-going criminal activity by Scozzafava, Hammad does not explicitly forbid Government attorneys from engaging in such investigatory tactics, unless their conduct may otherwise be deemed improper. The question in this case is whether the record shows any purpose of this investigation to interfere with Scozzafava's client-attorney relationship, or to engage in deceitful, unfair, overreaching or abusive conduct, which may constitute a violation of the disciplinary rule.
Here, there is simply no evidence of professional misconduct by the Government attorney. Mehltretter took steps consistent with guidelines established by the Department of Justice to avoid invading the zone of privilege established for attorney-client communications. There was no deliberate effort to learn defense strategy or tactics, to "invade" the defense camp, or otherwise to interfere with the ability of Scozzafava's retained attorney to advise and assist him. In fact, following receipt of a letter from Scozzafava'a attorney, Mehltretter specifically advised the attorney in writing that the investigation of Scozzafava would continue. Additionally, it was established, prior to authorizing the use of the informant, that Scozzafava was a predicated individual and, as such, had been involved in criminal activity. Mehltretter also testified that continued contacts by Scott with Scozzafava over the relevant period were needed to secure other evidence of potential on-going criminal conduct by Scozzafava, and to further assure Scott's undisclosed undercover status. Whether such continued contacts were in retrospect justified or necessary, Mehltretter's apparent good-faith belief that they were in deciding to utilize Scott as a cooperating witness, in the particular circumstances presented here, negates any basis to conclude that she had overstepped her authority. Accordingly, Mehltretter's conduct as the supervising Government attorney cannot be held to constitute professional misbehavior within the holding of Hammad, and the disciplinary rule was not contravened.
Based on the foregoing analysis, Scozzafava's motion to suppress statements, on the basis of a purported violation of DR 7-104(A)(1), should be DENIED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: June 22d, 1993
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: June 22d, 1993
Buffalo, New York