(presumably mindful of Massiah) has decided not to offer the taped conversations into evidence, and because the money and jewelry are as primary as Reyes' statements, the Government is precluded from offering the money and jewelry at this trial.
B. Fruit of the poisonous tree
Alternatively, an analysis of the evidence as fruit of the poisonous tree yields the same result.
1. Applicable law
Assuming a Constitutional violation (as I am for the purpose of this Opinion), at a minimum the taped conversations between Vargas and Reyes must be suppressed. Massiah, 377 U.S. at 207. However, "more may at times be necessary to neutralize the taint produced by governmental misconduct." United States v. Kimball, 884 F.2d 1274, 1278 (9th Cir. 1989). In Nix v. Williams, the Supreme Court held that "violation of Massiah requires suppression of all derivative evidence gleaned through exploitation of the Government's wrongdoing." Kimball, 884 F.2d at 1278 (citing Nix, 467 U.S. 431, 441-43 (1984)). In so holding, the Nix Court noted that "the 'fruit of the poisonous tree' doctrine has not been limited to cases in which there has been a Fourth Amendment violation." Nix, 467 U.S. at 442. For example, in United States v. Wade, 388 U.S. 218, 241-42, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), the Court applied the doctrine in the case of a Sixth Amendment violation. See also United States v. Terzado-Madruga, 897 F.2d 1099, 1112-13 (11th Cir. 1990); United States v. Marshank, 777 F. Supp. 1507, 1519 n.11 (N.D. Ca. 1991).
The question, then, is whether the jewelry and money were "gleaned through exploitation of the Government's wrongdoing." Kimball, 884 F.2d at 1278. As the Supreme Court has held, courts must inquire whether "the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). In Brown v. Illinois, the Supreme Court listed several factors to be considered in determining whether evidence was discovered by means sufficiently attenuated from the illegal conduct. These factors include the temporal proximity of the illegal conduct and the procurement of evidence; the presence of intervening circumstances; and "the purpose and flagrancy of the official misconduct." Brown v. Illinois, 422 U.S. 590, 603-604, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975)
In addition, "the burden of showing admissibility rests . . . on the prosecution." Id. at 604; see also Alderman v. United States, 394 U.S. 165, 183, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969).
2. Brown factors
The first factor, proximity between illegal conduct and Procurement of evidence, is primarily considered in situations where the illegal conduct is an invalid search or arrest. In such situations, courts typically assess the time lapse in minutes or hours. See, e.g., Brown, 422 U.S. at 604 (less than two hours separated defendant's first statement from his illegal arrest); United States v. Gregory, 79 F.3d 973, 1996 U.S. App. LEXIS 4729, *16-*17, 1996 WL 118269, at *6 (10th Cir. 1996) (consent to search given less than 35 seconds after police returned defendant's license and registration after illegally stopping him); United States v. Richardson, 949 F.2d 851, 859 (6th Cir. 1991) (consent to search given 20 minutes after illegal arrest); United States v. Ceballos, 812 F.2d 42, 49-50 (2d Cir. 1987) ("the consents to search were given within a few minutes of the illegal arrest"); United States v. Cherry, 794 F.2d 201, 206 (5th Cir. 1986), cert. denied, 479 U.S. 1056, 93 L. Ed. 2d 983, 107 S. Ct. 932 (1987) (approximately 24 hours between illegal arrest and consent to search); United States v. Webster, 750 F.2d 307, 324-25 (5th Cir. 1984), cert. denied, 471 U.S. 1106, 85 L. Ed. 2d 855, 105 S. Ct. 2340 (1985) (lapse of almost 12 hours between illegal arrest and defendant's statement); United States v. McCoy, 839 F. Supp. 1442, 1447 (D. Or. 1993) (consent to search provided within 15 minutes of illegal arrest); United States v. Weston, 519 F. Supp. 565, 571-72 (W.D.N.Y. 1981) (defendant gave statement six hours after improper roadside questioning).
Under the facts of this case, however, such a measure of attenuation does not adequately indicate whether the causal connection between the governmental misconduct and the challenged evidence has been broken. For example, Reyes' first taped conversation with Vargas was on March 21, 1995 (Tr. at 85); Vargas later spoke with Reyes' girlfriend on May 17 and 19 (Def. Ex. A, C); and the jewelry and money were given to Vargas on May 31 and June 2 (Tr. at 24, 27-28; GX 1 at 37; GX 4 at 3). However, each conversation between Vargas and Reyes was an independent and continuing violation of Massiah. According to the Government's various discovery letters, it appears that Vargas spoke with Reyes on March 21, 26, 28-29, April 17-19, 21-22, May 15-17, 19, 25, 27, 29, 31 and June 1-2. Even if there was an interval of time between the last conversation with Reyes and the production of the jewelry (which appears unlikely), a time lapse alone is not dispositive of attenuation. See Brown, 422 U.S. at 603 ("no single fact is dispositive"; rather, the question "must be answered on the facts of each case"); see also United States v. Cherry, 759 F.2d 1196, 1211 (5th Cir. 1985) ("The relative importance of each [Brown] factor in any particular case of course depends on the circumstances of that case.").
Another Brown factor is the purpose and flagrancy of the governmental misconduct. The government's misconduct here was flagrant. In providing Vargas with recording equipment and instructing him to record conversations, the ATF could have had no other purpose besides attempting to obtain evidence that might incriminate Reyes in the charges on which he had been indicted. Thus this factor weighs in favor of suppressing the evidence. Like the first factor, purpose of the misconduct alone is not dispositive, although the Brown Court notes that it is particularly relevant. See Brown, 422 U.S. at 604.
The remaining factor to consider is the presence or absence of intervening circumstances. In most cases, such circumstances involve the Government's releasing the defendant, or reading the defendant his Miranda rights
or giving the defendant an opportunity to consult with family members or an attorney. That is, the circumstances intervening between the illegal conduct and the procurement of evidence consist of some affirmative act taken by the Government that helps to purge the taint of prior illegal conduct. See, e.g., Johnson v. Louisiana, 406 U.S. 356, 365, 32 L. Ed. 2d 152, 92 S. Ct. 1620 (1972) (intervening hearing before magistrate, at which suspect was advised of rights, purged the taint from a lineup following an illegal arrest); Devier v. Zant, 3 F.3d 1445, 1459 (11th Cir. 1993), cert. denied, 130 L. Ed. 2d 1087, 115 S. Ct. 1125 (1995) (after illegal detention, defendant was given access to friends and family, and opportunity to enlist legal assistance); Cherry, 794 F.2d at 216 (intervening circumstance was the "development of independently procured probable cause following an illegal arrest;" it was a "critical factor [and] attenuated the taint of the initial illegal arrest"); Webster, 750 F.2d at 325 implying that intervening circumstances that might purge taint include ability to contact family or friends and appearance before a magistrate); United States v. Berry, 670 F.2d 583, 605 (5th Cir. 1982) (defendants "were allowed to consult with each other, " and were invited "to use a telephone when [one defendant] indicated that she might want to contact an attorney"); United States v. Wellins, 654 F.2d 550, 555 (9th Cir. 1981) (defendant was allowed to consult with his attorney and was at least once advised of his Miranda rights prior to giving consent to search hotel room; defendant was also permitted a phone conversation with person who was co-registered with him at the hotel); Restrepo, 890 F. Supp. at 199 ("Consultation with counsel is sometimes considered an 'intervening circumstance' which may dissipate taint;" however, consultation with attorney was insufficient to dissipate taint when the attorney did not believe herself to represent the defendant and did not understand the purpose for which she was to meet with him); McCoy, 839 F. Supp. at 1447 (intervening circumstances may include "defendant's release from custody, an appearance before a magistrate, or a consultation with an attorney").
No such circumstances exist in this case. Nothing occurred that might have cured the illegality of a government agent speaking with Reyes post-indictment without the presence of Reyes' counsel. At no time did the Government inform Reyes that Vargas was cooperating with the Government, and at no time did the Government (or Vargas) suggest to Reyes that he might want to have counsel present during his conversations with Vargas. To be sure, Brown suggests that "an act sufficiently a product of free will" may break "the causal connection between the illegality and the" obtaining of evidence." 422 U.S. at 603. But the Government's argument that Reyes exercised free will in forwarding money and jewelry to Vargas rings hollow. When Reyes was acting of his own accord, prior to the intense prodding of the Government's agent, he did not in fact provide any money to Vargas to assist his flight. It was only after Vargas became a Government agent, and increased the urgency and tenor of his demand, that Reyes actually produced the money and jewelry. Arguing that Reyes acted of his own free will in producing these items is no different than saying that Reyes acted of his own free will when he spoke to Vargas. This is not a case of a defendant's will being overborne by the coercive nature of an arrest or a search. Reyes had no way of knowing that in speaking with Vargas (and in any actions he took as a result of those conversations) he was actually dealing with the Government.
C. Policy and balancing of interests
Underlying these analyses, of course, are the theories behind the exclusionary rule and the "fruit of the poisonous tree" doctrine. As to the former, one court has held that "in the . . . sixth amendment context, the 'prime purpose' of the exclusionary rule as applied to the fruits of police illegality is deterrence of government denial of the . . . counsel right." United States v. Brookins, 614 F.2d 1037, 1047 (5th Cir. 1980) (citing United States v. Calandra, 414 U.S. 338, 347, 38 L. Ed. 2d 561, 94 S. Ct. 613 (1974)). Deterrence is also one of the goals supporting the requirement that the fruits of the poisonous tree be suppressed: when there is a close causal connection between illegal conduct and evidence obtained as a result of that conduct, "not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts." Dunaway v. New York, 442 U.S. 200, 218, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); see also United States v. Preston, 608 F.2d 626, 633 (5th Cir. 1979), cert. denied, 446 U.S. 940, 64 L. Ed. 2d 794, 100 S. Ct. 2162 (1980) (citing Dunaway).
In deciding whether evidence must be suppressed, courts implicitly balance the government's (or public's) interest in the admission of relevant and probative evidence against the defendant's (or public's) interest in the protection of his constitutional rights. Both interests are valid, and both are compelling. But the courts must not let the Government benefit from its misconduct by putting it in a better position than it would have occupied absent its constitutional violations. See, e.g., Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92, 64 L. Ed. 319, 40 S. Ct. 182 (1920); Olmstead v. United States, 277 U.S. 438, 484-85, 72 L. Ed. 944, 48 S. Ct. 564 (1928) (Brandeis, J., dissenting); Nix v. Williams, 467 U.S. 431, 443, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984). To admit the evidence at issue here would do just that. If the Government wishes to seek an indictment of Reyes on separate charges of obstruction of justice, it is free to do so. But the evidence at issue here was obtained in violation of Reyes' Sixth Amendment right to counsel. Consequently, neither the money nor the jewelry may be admitted at the trial of Reyes on the current indictment.
As stated above, Reyes' motion to suppress the evidence is granted. In addition, I must address one outstanding motion. For the reasons set forth in United States v. Cherry, 876 F. Supp. 547 (S.D.N.Y. 1995), with which this Court agrees, the motion of nonparty New York City Police Department to quash Reyes' Rule 17(c) subpoenas is granted.
Shira A. Scheindlin
Dated: New York, New York
April 17, 1996