United States District Court, S.D. Mississippi, Eastern Division
STARRETT UNITED STATES DISTRICT JUDGE
is charged with 1) conspiring to commit wire fraud; 2)
conspiring to defraud Tricare, a federal health care benefit
program for members and retirees of the United States
military and their families; 3) four counts of wire fraud; 4)
conspiring to distribute a Schedule III controlled substance
outside the scope of professional practice and without a
legitimate medical purpose; 5) four counts of distributing a
Schedule III controlled substance outside the scope of
professional practice and without a legitimate medical
purpose; 6) conspiring to falsify entries in patient files
and/or Tricare audit forms with the intent of impeding or
obstructing a federal grand jury investigation of the
above-referenced fraud; and 7) five counts of falsifying
entries in patient files and/or Tricare audit forms with the
intent of impeding or obstructing a federal grand jury
investigation of the above-referenced fraud.
in September 2016, one of Defendant's co-conspirators,
Gerald “Jay” Schaar, began surreptitiously
recording conversations with Defendant in cooperation with
the Government. At this point, the investigation had been
ongoing for several months, and Defendant was represented by
counsel in his interactions with the Government, although he
had not yet been indicted.
argues that Government counsel violated the Mississippi Rules
of Professional Conduct by inducing Schaar to communicate
with Defendant outside the presence of Defendant's
counsel. See Miss. R. of Prof. Conduct 4.2.
Therefore, Defendant argues that the Government violated 28
U.S.C. § 530B(a), which provides: “An attorney for
the Government shall be subject to State laws and rules, and
local Federal court rules, governing attorneys in each State
where such attorney engages in that attorney's duties, to
the same extent and in the same manner as other attorneys in
that State.” 28 U.S.C. § 530B(a). Defendant filed
a Motion to Dismiss  the indictment or, alternatively,
suppress the recordings obtained in alleged violation of
ethical rules. Defendant also filed a Motion for an
Evidentiary Hearing  with respect to the underlying
Motion to Dismiss  or suppress.
no evidentiary hearing is necessary. Defendant's Motion
to Dismiss or Suppress  presents two legal questions: 1)
whether the Government violated the Mississippi Rules of
Professional Conduct by having a co-conspirator record
conversations in a non-custodial, pre-indictment setting with
the subject of an investigation who was represented by
counsel, and 2) whether, in the case of such violation,
dismissal of the indictment or suppression of the recordings
is the appropriate remedy. Defendant has not articulated any
factual disputes that the Court must resolve in order to
address these legal questions. As there is no factual
dispute, the Court need not hold an evidentiary hearing.
See United States v. Fields, 565 F.3d 290, 298 (5th
Cir. 2009); United States v. Dean, 100 F.3d 19, 21
(5th Cir. 1996); United States v. Briscoe, 596 F.
App'x 299, 302 (5th Cir. 2015); United States v.
Turner, 372 F. App'x 455, 456 (5th Cir. 2010).
Fifth Circuit directly addressed the issue presented in
Defendant's Motion to Dismiss or Suppress  and found
that “professional disciplinary rules do not apply to
government conduct prior to indictment . . . .”
United States v. Johnson, 68 F.3d 899, 902 (5th Cir.
1995); see also United States v. Heinz, 983 F.2d
609, 613 (5th Cir. 1993). In fact, DOJ regulations
specifically provide that 28 U.S.C. § 530B “should
not be construed in any way to alter federal substantive,
procedural, or evidentiary law . . . .” 28 C.F.R.
§ 77.1(b). Virtually every federal court to address this
issue has ruled that similar ethical rules do not apply to
the investigatory phase of law enforcement. Only one Circuit
has applied a no-contact rule in a non-custodial,
pre-indictment setting, and it still declined to suppress the
recorded statements. United States v. Hammad, 858
F.2d 834, 842 (2nd Cir. 1988).
agues that the Fifth Circuit decisions approving of such
investigatory tactics predate the Ethical Standards for
Prosecutors Act of 1998, which requires Government attorneys
to abide by state rules governing attorneys. See 28
U.S.C. § 530B. However, the Court cited numerous
authorities above which post-date the Act and reach the same
conclusion. Moreover, only the United States Supreme Court or
the Fifth Circuit sitting en banc can overrule prior
Fifth Circuit panel decisions. See United States v.
Lipscomb, 299 F.3d 303, 313 (5th Cir. 2002). Therefore,
the Court must follow the Fifth Circuit's prior decisions
on this issue.
v. Wal-Mart Stores, Inc., 47 F.Supp.2d 783 (S.D.Miss.
1998), cited by Defendant, is irrelevant because, among other
reasons, it is a civil case. In Heinz, the Fifth
Circuit considered particular applications, problems, and
limitations of the no-contact rule in the context of
pre-indictment, non-custodial, investigatory functions of law
enforcement. See Heinz, 983 F.2d at 613-14. Contrary
to Defendant's blanket assertions in briefing, ethical
rules are frequently applied differently in the criminal
context than in the civil.
even if there were Fifth Circuit precedent holding that the
Government's use of a co-conspirator to record
conversations with a subject of investigation in a
non-custodial, pre-indictment setting constitutes a violation
of a state bar's no-contact rule, it does not necessarily
follow that the indictment must be dismissed or the
recordings suppressed. “Government misconduct does not
mandate dismissal of an indictment unless it is so outrageous
that it violates the principle of fundamental fairness under
the due process clause of the Fifth Amendment.”
United States v. Mauskar, 557 F.3d 219,
231-32 (5th Cir. 2009). “Such a violation will only be
found in the rarest circumstances.” Id. To
merit dismissal of the indictment, the Government's
actions must be “shocking to the universal sense of
justice.” United States v. Russell, 411 U.S.
423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The Fifth
Circuit has declined to find outrageous conduct in far worse
situations than this one. See United States v.
Sandlin, 589 F.3d 749, 759 (5th Cir. 2009) (listing
cases). Defendant has cited no authorities indicating that
the Government's conduct in the present case meets such a
“[s]uppression of evidence . . . has always been our
last resort, not our first impulse.” United States
v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405 82 L.Ed.2d
677 (1984). “There is no basis for judicial imposition
of the exclusionary rule for a statutory violation when
Congress has not provided that remedy.” United
States v. Guerrero, 768 F.3d 351, 358 (5th Cir.
2014). Section 530B provides no remedy for
violations of state professional responsibility rules.
Likewise, the Mississippi Rules of Professional Conduct
provide no remedy, and, in any case, it does not necessarily
follow that this Court would be required to adopt the state
remedy. Even if the Government's actions here constituted
prosecutorial misconduct egregious enough to constitute a due
process violation, the Court finds that the good faith
exception to the exclusionary rule applies because, as noted
above, there is overwhelming support in the case law for the
Government's position. See Heinz, 983 F.2d at
614 (holding that even if prosecutors had violated ethical
rules, good faith exception applied and suppression was not
of these reasons, the Court denies
Defendant's Motion for an Evidentiary Hearing  and
Motion to Dismiss or Alternatively to Suppress Evidence .
ORDERED AND ADJUDGED.