that, on one occasion, Defendant initiated conversation with her
regarding his case, by asking what she had told the Grand Jury,
and instructing her what to say during her testimony before the
Grand Jury. Meinhardt Affidavit at 5. However, based on the
applicable caselaw, such conduct by Schweter, even assuming she
then acted as an informant, is irrelevant.
Further, Defendant has provided no evidence of any deliberate
effort by the Government to learn defense strategy or tactics, to
invade the defense camp, or otherwise interfere with the ability
of Defendant's attorneys to advise and assist him. Scozzafava,
supra, at 210-11. Nor is there any evidence of direct
misrepresentation or abuse of process as the court found in
Hammad, supra. As Defendant has also failed to provide the
required degree of factual specificity in making his claim, no
suppression hearing is warranted on this issue. Pena, supra, at
Even if Disciplinary Rule 7-104(A)(1) were applicable and
Defendant had made a factual showing with the required degree of
specificity, the "authorized by law" exception applies in this
case. Defendant has failed to show Assistant United States
Attorney Kennedy engaged in "egregious misconduct suggestive of
pretense or unfair dealing which would disqualify the
Government's behavior from reliance upon the authorized by law
exception," Scozzafava, supra, at 209, and the "authorized by
law" exception to the Disciplinary Rule is therefore applicable
nonetheless. As discussed, Defendant's allegations, in addition
to his generalized contentions, rest upon pure conjecture and are
therefore insufficient to require suppression or an evidentiary
hearing. Pena, supra, at 339.
Based on the foregoing, Defendant's motion to suppress
statements on the basis of any asserted violation of DR
7-104(A)(1), should be DENIED.
5. Defendant's Motions for an Evidentiary Hearing
As noted, Defendant has also moved for a suppression hearing on
several grounds. An evidentiary hearing on a motion to suppress
ordinarily is required if the moving papers are sufficiently
definite, specific, detailed, and nonconjectural to enable the
court to conclude that contested issues of fact going to the
validity of the search are in question. United States v. Pena,
961 F.2d 333, 339 (2d Cir. 1992); see also United States v.
Mathurin, 148 F.3d 68, 70 (2d Cir. 1998); Gentile v. County of
Suffolk, 926 F.2d 142, 148 (2d Cir. 1991); United States v.
Wang, 1998 WL 556160, *3 (S.D.N.Y. 1998); United States v.
Florack, 155 F.R.D. 49, 56 (W.D.N.Y. 1994); United States v.
Waters, 786 F. Supp. 1111, 1119 (N.D.N.Y. 1992).
As discussed, applying the standard set forth in Pena, supra,
at 339, Defendant has failed to demonstrate that such a hearing
is warranted on any of the asserted grounds. Although he did not
seek suppression on such grounds, Defendant also seeks an
evidentiary hearing to determine whether a violation of his Fifth
Amendment due process rights occurred.
6. Defendant's Fifth Amendment Claim
Defendant contends that an evidentiary hearing is necessary to
determine whether the Government's conduct violated his rights
under the due process clause of the Fifth Amendment on the
so-called "outrageous conduct" theory. Defendant's Supplemental
Memorandum of Law at 8-9. The Second Circuit has recognized a due
process defense to prosecution, "if the government violates a
protected right of the defendant" and "if the government's
conduct `reach[ed] a demonstrable level of outrageousness.'"
United States v. Cuervelo, 949 F.2d 559, 565 (2d Cir. 1991)
(quoting Hampton v. United States, 425 U.S. 484, 495 n. 7, 96
S.Ct. 1646, 48 L.Ed.2d 113 (1976) (Powell, J., concurring));
United States v. Chin, 934 F.2d 393, 399 n. 4 (2d Cir. 1991);
United States v. Berkovich, 168 F.3d 64, 68-69 (2d Cir. 1999).
The existence of a due process violation turns on whether the
governmental conduct, standing alone, is "so offensive that it
shocks the conscience." Chin, supra, at 398 (citing Rochin v.
California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183
(1952)). However, courts have rarely, if ever, found such a
violation. Berkovich, supra, 168 F.3d at 68-69 (citing United
States v. LaPorta, 46 F.3d 152, 160 (2d Cir. 1994) (finding only
one case where a circuit court has found such conduct since
1976)). Where such violation of a defendant's due process rights
is found, the proper remedy, if any, is dismissal of the
indictment. Cuervelo, supra, at 566.
However, Defendant has failed to demonstrate that the
Government's conduct in this case violated his federal due
process rights. What constitutes "a demonstrable level of
outrageousness" cannot be identified with precision, but "the due
process claim, in the rare instances when successful, has
prevailed to restrain law enforcement activities that involve
coercion . . . or outrageous violation of physical integrity,"
United States v. Myers, 692 F.2d 823, 837 (2d Cir. 1982),
cert. denied, 461 U.S. 961, 103 S.Ct. 2437, 77 L.Ed.2d 1322
(1983), or psychological integrity. Cuervelo, supra, at 565. In
this case, Defendant does not assert that he suffered some
psychological or physical harm as a result of the actions of the
Government. Moreover, as discussed, the court finds no specific
right of Defendant was violated during the course of the
The authorities relied on by Defendant, United States v.
Voigt, 89 F.3d 1050, 1066-68 (3d Cir. 1996), United States v.
Sabri, 973 F. Supp. 134, 147 (W.D.N.Y. 1996), and United States
v. Marshank, 777 F. Supp. 1507, 1519 (N.D.Cal. 1991), are
distinguishable from the instant matter, as a violation of the
defendant's federal due process rights in each case was found
based on a finding of outrageous official conduct in the
government's misuse of the defendant's attorney, not an
employee of the defendant, as an informant to gather evidence
against the defendant. Measuring Defendant's contentions against
the relevant caselaw, Defendant has failed to demonstrate that
the conduct of the Government in this case constitutes
interference with Defendant's attorney's duty of loyalty to
Defendant or was so offensive as to shock the conscience, thereby
constituting a due process violation. Chin, supra, at 398; see
also United States v. Miceli, 774 F. Supp. 760-71 (W.D.N.Y. 1991)
(sexual misconduct by IRS agent with Defendant's spouse does not
violate Defendant's right to due process).
Defendant concedes that he "does not know yet whether the
Government's conduct in this case warrants a motion to dismiss
the indictment on due process grounds." Defendant's Supplemental
Memorandum of Law at 9. Defendant's submissions consist of base
speculation, and are therefore insufficient to warrant an
evidentiary hearing. Pena, supra, at 339. As Defendant has
failed to demonstrate even a colorable basis for his contention
that the Government's conduct in this case was sufficiently
outrageous, see Cuervelo, supra, at 565, Defendant's request
for an evidentiary hearing resolving whether the Government
violated his Fifth Amendment due process rights should be DENIED.
Based on the foregoing, Defendant's motions to suppress, or,
alternatively, conduct evidentiary hearings (Docket Item No. 40)
should be DENIED. Defendant's motion for a Franks hearing
should also be DENIED.
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 service
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 72.3.
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, 106 S.Ct.
466, 88 L.Ed.2d 435 (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 Defendants.
Feb. 26, 1999.