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United States District Court, Southern District of New York

May 6, 2003


The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge


On November 27, 2002, defendant Edgar Marino Sanchez made an oral motion to preclude the Government from using at trial statements he made in his November 25, 2002 pro se motion.*fn1 The motion to preclude was denied in an oral ruling on that day. Sanchez now moves, through counsel, for reconsideration of that ruling. For the reasons set forth below, the motion is granted. The Government is precluded from using the statements contained in Sanchez's pro se motion in its direct case.


On November 25, 2002, approximately two weeks prior to his scheduled trial*fn2 on federal charges of murder, possession of firearms, and conspiracy to distribute narcotics, Sanchez mailed a pro se letter motion to the Court and Government seeking an evidentiary hearing on the Government's refusal to offer him a cooperation agreement and file a motion to reduce his sentence pursuant to Section 5K1.1 of the United States Sentencing Guidelines.*fn3 With his motion, Sanchez filed an affidavit setting forth statements he allegedly made to the Government under the protection of a proffer agreement. See 11/18/02 Affidavit in Support of Sanchez's Application for an Evidentiary Hearing ("Sanchez Aff."), Ex. A to 4/7/03 Letter to the Court from Timothy J. Treanor and David M. Rody, Assistant United States Attorneys ("Govt. Ltr."). The affidavit included a detailed account of Sanchez's confession to his participation in the murder with which he is charged. See Sanchez Aff. at 5-7.

Shortly thereafter, the Government advised the Court and defense counsel of its intention to use Sanchez's statements in the pro se motion against him at trial. See 11/27/02 Transcript of Pre-Trial Conference ("11/27/02 Tr.") at 2. In response, defense counsel moved to withdraw the motion as improvidently filed and requested that the Court direct the Government to return the defendant's letter and affidavit and preclude the Government from using the statements contained therein. See id. at 9-10. Defense counsel argued, in the alternative, that the Court should find that the statements are covered under the office immunity agreement and thereby bar their use at trial. See id. at 10. After hearing argument, I deemed the pro se motion a post-trial sentencing motion to be docketed at a later date, but held that the sworn statements contained therein could be admitted as party admissions.*fn4 See id. at 11.

By letter dated March 25, 2003, defense counsel sought reconsideration of the decision permitting the Government to offer these statements at trial. See 3/25/03 Letter to the Court from Neil B. Checkman, counsel for Sanchez ("Def. Ltr."). On April 7, 2003, the Government submitted a letter brief in response to Sanchez's motion. See Govt. Ltr. The Court heard oral argument on the motion on April 8, 2003. See 4/8/03 Transcript of Pre-trial Conference ("4/8/03 Tr.").


A motion for reconsideration is governed by Local Rule 6.3 and is appropriate where a court overlooks "controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp.2d 390, 392 (S.D.N.Y. 2000) (internal quotation marks and citation omitted); see also Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) ("The standard for granting . . . a motion [for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked — matters, in other words, that might reasonably be expected to alter the conclusion reached by the court."). Alternatively, a motion for reconsideration may be granted to "correct a clear error or prevent manifest injustice." Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983). Local Rule 6.3 should be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temps., Inc., No. 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001); see also In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996) (a Local Rule 6.3 motion "is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved"); Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N.Y. 1988) (purpose of Local Rule 6.3 is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters").


A. Manifest Injustice Would Result Absent Reconsideration

Defense counsel argues that this Court should reconsider its bench ruling because "[u]pon reflection, it appears that the arguments made by him orally in court understated the defendant's position on this issue." Def. Ltr. (raising, for the first time, arguments under the Fifth and Sixth Amendments). He does not contend that the Court overlooked facts or law before it. While the development of new or more persuasive legal theories is generally not a proper basis for reconsideration, see 4200 Avenue K LLC v. Fishman, No. 00 Civ. 8814, 2001 WL 498402, at *1 (S.D.N.Y. May 10, 2001), reconsideration is warranted here to prevent manifest injustice.

Defense counsel was in the midst of a lengthy criminal trial when his client made the pro se motion at issue here. Immediately thereafter, the Government announced its intention to use the statements contained in the motion against the defendant. With trial in the instant action only two weeks away, defense counsel was compelled to respond without sufficient time to analyze and research the issue. As a result, he argued two bases for exclusion without providing citations to law or lengthy discussion. Having now had several months to consider the issue, for which there is no direct precedent, defense counsel seeks to raise constitutional challenges to the admissibility of the statements. To deny him the opportunity to raise such grounds because they were not raised before would be grossly unfair given the circumstances under which the prior motion was made and the severely prejudicial nature of the evidence at issue.*fn5 Sanchez's motion for reconsideration is therefore granted.

B. Sanchez's Sixth Amendment Rights Were Violated

The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall . . . have the right to have Assistance of Counsel for his defense." U.S. Const. amend. VI. The purpose of the Sixth Amendment "is to assure that in any criminal prosecutio[n], the accused shall not be left to his own devices in facing the `prosecutorial forces of organized society.'" Moran v. Burbine, 475 U.S. 412, 430 (1986) (quoting Maine v. Moulton, 474 U.S. 159, 170 (1985)). Where a defendant avails himself of the right to counsel, intentional government intrusion into the attorney-client relationship violates the Sixth Amendment. See Massiah v. United States, 377 U.S. 201 (1964). The defendant bears the burden of demonstrating that the Government has improperly intruded upon the attorney-client relationship. See United States v. Aulicino, 44 F.3d 1102, 1117 (2d Cir. 1995).

The Government purposefully intruded upon Sanchez's attorney-client relationship by opening a direct communication from a defendant it knew to be represented by counsel. The envelope clearly indicated that the "legal mail" had been sent directly from defendant himself from the Metropolitan Correctional Center ("MCC"), not from defendant's counsel. Although the Government did not solicit the communication and was unaware of its content, it intended, when it opened the envelope, to engage in an ex parte communication. Thus, the Government's interference with Sanchez's relationship with counsel was purposeful — albeit not "manifestly and avowedly corrupt," United States v. Gartner, 518 F.2d 633, 637 (2d Cir. 1975) — and therefore violated defendant's Sixth Amendment rights.*fn6

"[T]here can be no violation of the [S]ixth [A]mendment without some communication of valuable information derived from the intrusion," which creates a realistic possibility of prejudice to the defendant. United States v. Ginsberg, 758 F.2d 823, 833 (2d Cir. 1985) (citing Weatherford v. Bursey, 429 U.S. 545, 558 (1997) and Klein v. Smith, 559 F.2d 189, 197 (2d Cir. 1977)); see also United States v. Dien, 609 F.2d 1038, 1043 (2d Cir. 1979) ("[T]o establish a Sixth Amendment violation. defendants [are] required to establish that privileged information [was] passed to the government or that the government [] intentionally invaded the attorney client relationship, and resulting prejudice.") (emphasis added). To meet this standard, Sanchez must establish that he would be prejudiced by the admission of his statements at trial. The question therefore is whether what was communicated to the Government "`has the potential for detriment to the defendant or benefit to the prosecutor's case.'" Klein, 559 F.2d at 198 (quoting Weatherford, 429 U.S. at 556).

The information derived from the purposeful intrusion here is a sworn statement in which defendant admitted to being the shooter. There is no doubt that such information is "valuable" and that the Government's use of it at trial would be severely prejudicial. Compare with Gartner, 518 F.2d at 638 (finding defendant would not suffer any prejudice as a result of the government's unintentional intrusion because the recorded conversations did not concern the facts of the case). In fact, it is hard to conceive of evidence that would be more detrimental to defendant or more beneficial to the Government.

Because Sanchez's Sixth Amendment rights were violated by the Government's review of his pro se motion, the Government is precluded from using the incriminating statements in its direct case against him. See United States v. Hammad, 858 F.2d 834, 840 (2d Cir. 1988) ("The exclusionary rule mandates suppression of evidence garnered in contravention of a defendant's constitutional rights and protections.") (citing Mapp v. Ohio, 367 U.S. 643 (1961)); see also Massiah, 377 U.S. 201. The Government is permitted, however, to use the statements on cross-examination to attack Sanchez's credibility. See James v. Illinois, 493 U.S. 307, 311-13 (1990) (tracing the history of the impeachment exception to the exclusionary rule; which permits prosecutors to introduce illegally obtained evidence for the limited purpose of impeaching the credibility of defendant's own testimony); see also United States v. Havens, 446 U.S. 620 (1980); Oregon v. Hass, 420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971); Walder v. United States, 347 U.S. 62 (1954)

C. The Government Violated DR 7-104(A)(1)

Disciplinary Rule 7-104(A)(1) of the Model Code of Professional Responsibility ("Code") provides:

(A) During the course of his representation of a client a lawyer shall not:
(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such party or is authorized by law to do so.
DR 7-104(A)(1). This restriction, while not statutorily mandated, is enforced by federal courts pursuant to their general supervisory authority over members of the bar. See Hammad, 858 F.2d at 837 (citing In re Snyder, 472 U.S. 634, 645 n. 6 (1985)); see also Wheat v. United States, 486 U.S. 153, 160 (1988) ("Federal courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.")

Like the Sixth Amendment, DR 7-104(A)(1) is designed, in part, to guarantee balance and fairness in our adversarial system of justice. See United States v. Lemonakis, 485 F.2d 94-956 (D.C. Cir. 1973); see also United States v. Guerrerio, 675 F. Supp. 1430, 1437 (S.D.N.Y. 1987) (noting that DR 7-104(A)(1) and the Sixth Amendment serve a common purpose). It "protect[s] the represented party against overreaching by adverse counsel, safeguard[s] the client-lawyer relationship from interference by adverse counsel, and reduce[s] the likelihood that clients will disclose privileged or other information that might harm their interests." ABA Comm. on Prof'l Ethics and Grievances, Formal Op. 396 (1995); see also Graham v. United States, 96 F.3d 446, 449 (9th Cir. 1996) ("The rule is designed to shield opposing parties not only from an attorney's approaches which are intentionally improper, but from the approaches which are well-intended but misguided.") (citation omitted); Polycast Tech. Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 625 (S.D.N.Y. 1990) (discussing policies behind DR 7-104(A)(1)). The rule is necessary because of the extreme imbalance of legal skill and knowledge between an attorney and a layman. See Robert S. Wells, et al. eds., ABA/BNA Lawyers' Manual on Professional Conduct § 71:302 (1989) (stating that 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.").

The Second Circuit has adopted an expansive reading of DR 7-104(A)(1). First, it held that the rule applies to criminal prosecutions. See Jamil, 707 F.2d at 645 ("DR 7-104(A)(1) may be found to apply in criminal cases, . . . to government attorneys . . . [and] to non-attorney government law enforcement officers when they act as the alter ego of government prosecutors.") (citations omitted). Then, five years later, the Circuit found that DR 7-104(A)(1) applies to the investigatory stages of a criminal prosecution, even though Sixth Amendment protections do not attach until adversarial proceedings begin. See Hammad, 858 F.2d at 838-39. The Hammad Court expressly held that the disciplinary rule extends beyond the confines of the Sixth Amendment. See id. at 839 ("[T]he Code secures protections not contemplated by the Constitution."); see also United States v. Sam Goody, Inc., 518 F. Supp. 1223, 1224-25 n. 3 (E.D.N.Y. 1981), appeal dismissed, 675 F.2d 17 (2d Cir. 1982); United States v. Jamil, 546 F. Supp. 646, 657 (E.D.N.Y. 1982), rev'd on other grounds, 707 F.2d 638 (2d Cir. 1983). But see United States v. Kenney, 645 F.2d 1323, 1339 (9th Cir. 1981); Lemonakis, 485 F.2d at 954-56. While the Constitution "defines only the `minimal historical safeguards' which defendants must receive rather than the outer bounds of those we may afford them," Hammad, 858 F.2d at 839 (quoting McNabb v. United States, 318 U.S. 322, 340 (1943)), the Code "is designed to safeguard the integrity of the profession and preserve public confidence in our system of justice." Id.

The Hammad Court further held that when a prosecutor secures evidence in violation of the disciplinary rules, suppression of the evidence is an appropriate remedy, which a district court may impose in its discretion.*fn7 Id. at 840-41 ("[T]he exclusionary rule has application to governmental misconduct which falls short of a constitutional transgression."); see also United States v. Killian, 639 F.2d 206, 210 (5th Cir. 1981); United States v. Durham, 475 F.2d 208, 211 (7th Cir. 1973); United States v. Thomas, 474 F.2d 110, 112 (10th Cir. 1973). But see Committee on professional Responsibility of the Association of the Bar of the City of New York, Suppressing Evidence Obtained in Violation of DR 7-104: If Hammad Is Right, Is the Civil Law Wrong? (May 1992) (questioning the reasoning of Hammad and endorsing disciplinary action rather than suppression of evidence). The Hammad Court, however, was mindful that "suppression of evidence is an extreme remedy" and urged district courts to exercise their discretion cautiously to "avoid handcuffing law enforcement officers in their efforts to develop evidence." Hammad, 858 F.2d at 837-38, 842.

There is no dispute here that Sanchez's confession relates directly to the charges of the indictment, that the Government knew Sanchez was represented by counsel when he sent the pro se motion, and that the Government did not secure the consent of counsel prior to opening the correspondence. Thus, the only questions are: 1) whether there was a "communication" by the Government; and 2) if so, whether the Government is authorized by law to communicate with a criminal defendant who elects, without court approval, to proceed pro se.

The Government's opening of the correspondence sent by Sanchez is a "communication" within the meaning of DR 7-104 (A)(1). The fact that Sanchez initiated the communication with the Government does not affect or discharge the AUSAs' ethical obligations. "The rule against communicating with represented parties is fundamentally concerned with the duties of attorneys, not with the rights of parties." United States v. Lopez, 4 F.3d 1455, 1462 (9th Cir. 1993) (emphasis in original) (finding where defendant voluntarily excluded his lawyer for the limited purpose of negotiating with the government, but retained him as counsel for other purposes, prosecutor violated ethical rule by communicating with defendant in the absence of his attorney). "[E]thical obligations are personal, and may not be vicariously waived" by defendant's actions. Id. Thus, the Government had an ethical duty not to open the correspondence. Rather, the Government should have proceeded in ONE of the following three ways, depending on the circumstances: (1) forward the correspondence unopened to defense counsel; (2) forward the correspondence unopened to the Court; or (3) forward the correspondence unopened to another AUSA with no involvement in the case.*fn8

The Government was not authorized by law to engage in such ex parte communications with Sanchez. Although Sanchez manifested a desire to proceed pro se on this particular motion, he was not entitled to do so. The Sixth and Fourteenth Amendments guarantee criminal defendants the right to self-representation. See Faretta, 422 U.S. 806. However, the right to self-representation may not be exercised until it is asserted "clearly and unequivocally." Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994) (quoting Faretta, 422 U.S. at 835). Once a defendant invokes his right to self-representation, the court must ensure that the waiver of the right to counsel is voluntary, intelligent, and knowing. See Faretta, 422 U.S. at 835. "Although there is no talismanic procedure to determine a valid waiver, the [trial] court should engage the defendant in an on-the-record discussion to ensure that []he fully understands the ramification of h[is] decision." Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998) (citation omitted). The court should consider "whether the defendant understood that he had a choice between proceeding pro se and with assigned counsel, whether he understood the advantages of having one trained in the law to represent him, and whether the defendant had the capacity to make an intelligent choice." United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995).

Sanchez did not "clearly and unequivocally" assert his right to proceed pro se. Although he submitted a pro se motion, he did not discharge his appointed counsel. See O'Reilly v. New York Times Co., 692 F.2d 863, 868 (2d Cir. 1982) (to assert the right of self-representation, a party must "clearly and unequivocally discharge any lawyer previously retained") Sanchez merely participated in his defense along with his counsel. See, e.g., Robinson v. United States, 897 F.2d 903, 906-07 (7th Cir. 1990) (no waiver of right to counsel where defendant insisted upon finishing summation begun by his counsel); Bontempo v. Fenton, 692 F.2d 954, 960-61 (3d Cir. 1982) (no waiver where defendant gave summation in addition to the one by his counsel). Such hybrid representation requires express authorization of the court, which Sanchez neither sought nor obtained. See United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989) ("The decision to grant or deny hybrid representation lies solely within the discretion of the trial court.") (internal quotation and citation omitted); United States v. Turnbull, 888 F.2d 636, 638 (9th Cir. 1982) (where a defendant assumes any of the "core functions" of his lawyer, the hybrid scheme of representation is acceptable only if he has voluntarily waived counsel). Thus, because Sanchez did not waive his right to counsel, he remained a "represented party" within the meaning of the rule and the Government's communication with him violated DR 7-104(A)(1).

Exclusion of Sanchez's incriminating statements from the Government's case-in-chief is an appropriate remedy here for several reasons. First, Sanchez is a lay person that is not well-versed in the law. To allow the Government to benefit from his ignorance would be grossly unfair and contravene the very purposes of the rule, which seeks to protect represented parties from disclosing prejudicial information. Second, suppression here would not "handcuff law enforcement" because the Government acquired the evidence through fortuitous circumstances — not through legitimate investigatory activities.*fn9 Third, anecdotal evidence from both defense counsel and the Government reveals that it is not uncommon for criminal defendants to attempt to communicate directly with the Government. See 4/8/03 Tr. at 4-6, 12-14. Yet, the U.S. Attorneys' Office does not have an official policy to deal with such communications.*fn10 Because severe prejudice may result from ex parte communications initiated by a represented defendant, as is evident here, the Government must be deterred from engaging in such communications and is strongly advised to develop official policies and procedures prohibiting such conduct.*fn11 See Hammad, 858 F.2d at 840 (recognizing that the exclusionary rule is intended to deter improper conduct) (citing United States v. Leon, 468 U.S. 897 (1984), Stone v. Powell, 428 U.S. 465 (1976); Terry v. Ohio, 392 U.S. 1 (1968) Elkins v. United States, 364 U.S. 206 (1960)).


For the reasons set forth above, Sanchez's motion for reconsideration is granted. The Government is precluded from using the statements contained in Sanchez's pro se motion in its case-in-chief, but may use them on cross-examination of Sanchez, should he choose to testify, to impeach his credibility.

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