              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                          ____________________

                               No. 92-8165
                          ____________________



UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellant,

                                 versus

RICHARD LEE HEINZ, ET AL.,

                                                  Defendants-Appellees,

__________________________________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas

__________________________________________________________________
                        (January 26, 1993)

Before JOLLY and DUHÉ, Circuit Judges, and PARKER,* District Judge.

PER CURIAM:

     The question presented by this appeal is whether the district

court erred in concluding that the government's prosecutorial and

investigatory conduct toward defendant-appellees was so improper as

to render taped telephone conversations between Heinz and the

government's agent subject to suppression.            The question must be

analyzed by the light of the Sixth Amendment.          Upon such analysis,

we hold that the government's conduct did not violate Heinz's Sixth

Amendment right to counsel.



         *
         Chief   Judge,    Eastern   District    of    Texas,   sitting   by
designation.
                                     I

     Ted Mitchell is an attorney licensed to practice law in the

State of Texas.     The district court found that Mitchell had on

occasions in the past given legal advice in certain civil matters

to Charles Patillo and to defendants-appellees: Richard Lee Heinz,

Michael Scott Wilshursen, and Jack Delano Carsrud.1         However, the

communications between Ted Mitchell and the defendants that the

defendants   seek   to   suppress   were   communications   allegedly   in

furtherance of criminal activity--namely, avoiding prosecution for

bank fraud and money laundering.

     On December 13, 1989, a series of evidentiary search warrants

were executed on premises controlled by various defendants.             No

charges were filed against any of the defendants.       The defendants,

however, received grand jury subpoenas requiring them to appear and

testify in January before the grand jury in Austin, Texas.

     One of these search warrants was executed in the Corpus

Christi office of Heinz and Wilshursen.         At that time, Heinz was


      1
       For example, Mitchell was retained as a lawyer for Texas
Southern Exploration Company, in which company Heinz is a partner
and part owner. See Exhibit "A" to Heinz's Notice of Intent to
Claim Attorney-Client Privilege and Prevent Use of Tapes 96, 97,
and 98 by the Government. Moreover, Heinz consulted with Mitchell
as a lawyer regarding a monetary transaction involving Charles
Patillo's cashing of Heinz's checks in a fraudulent manner at the
NCNB Bank in Austin, Texas.     Exhibit "B" to Heinz's Notice of
Intent to Claim Attorney-Client Privilege and Prevent Use of Tapes
96, 97, and 98 by the Government. Other defendants appear to have
sought legal advice from Mitchell.       See e.g., Transcript of
March 13, 1992 Hearing on Motions, at 88-92 (testimony of Ted
Mitchell regarding his law-oriented dealings with Carsrud).




                                    -2-
read his "Miranda rights," and he invoked his right to counsel and

right to remain silent--affirmatively refusing to speak with the

investigating agents without the presence of his attorney.2

        Another of the search warrants was executed the next day

directed to Ted Mitchell's briefcase, in which agents apparently

found evidence of money laundering.            That same day, Mitchell

entered into a plea agreement with prosecutors, in which he agreed

to cooperate in the investigation of the other defendants.3

        The government admits that the defendants were targets of a

criminal investigation at the time, and even before the execution

of the search warrants on December 13, 1989.             On December 22,

Corpus Christi IRS Agent Wentrcek was contacted by Attorney Rich

Rogers, who informed the agent that he was representing Heinz

regarding the matters before the grand jury.            Wentrcek informed

Rogers that he was a special agent in the Criminal Investigation

Division     of   the   Internal   Revenue   Service   working   under   the

direction of Assistant United States Attorney Blankinship.

        On December 26, 1989, Mitchell called IRS Agent Abel Trevino

in Austin, Texas, and told him defendants were planning to commit

perjury before the Austin Grand Jury.             (Trevino and Wentrcek

operated as co-"Case agents" on the money laundering and fraud

cases.)     Mitchell told Trevino that the defendants knew they were

        2
         See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
    3
     Charles Patillo also pled guilty and agreed to cooperate with
the government.




                                     -3-
under investigation by federal agents and "wanted to get their

story straight."

     Between December 27 and 28, 1989, Mitchell--while in the

company of Agent Trevino--had three telephone conversations with

Heinz.      Trevino "consensually monitored" these conversations, in

which       Mitchell     acquired       testimonial       evidence      apparently

incriminating to Heinz and Heinz's fellow defendants.4                  Carsrud was

with Heinz during at least one of the conversations, but did not

talk to Mitchell.        During another of the conversations, Heinz was

apparently speaking from the office of Wilshursen.

     Trevino testified that he was personally unaware that Heinz

was represented by counsel at the time he taped these conversations

between Mitchell and Heinz.             He admits that his co-"case agent"

Wentrcek knew as of December 22, 1989, that Heinz was represented

by counsel in the grand jury matters, but stated that he himself

"probably didn't know" this--that he did not know this "until just

recently."       But    during   the     third   tape-recorded     conversation,

Mitchell asked         Heinz   about    what   "Rogers"    has   told    Heinz,   an

apparent reference to Rick Rogers, Heinz's attorney.

     In January of 1990, the Austin Grand Jury was convened;

defendants Carsrud and Byron Lewis Thomas testified before the

Grand Jury about the case.             On May 10, 1990, the defendants were


        4
      The taped conversations between Heinz and Mitchell focus on
facts underlying the government's money laundering and bank fraud
allegations against defendants.




                                         -4-
indicted    for    money    laundering        and   bank   fraud,     perjury      and

conspiracy to commit perjury.

     On March 13, 1992, the district court conducted an evidentiary

hearing on defendants' suppression motion.                   At this hearing,

Trevino admitted that the documents he and his teammates discovered

in Mitchell's briefcase on December 13, 1989, reflected Mitchell's

previous representation of Heinz and Patillo.

     On March 27, 1992, the district court granted defendants'

motion to suppress from evidence the tape-recorded conversations

between Mitchell and Heinz; the district court concluded that the

government had violated Heinz's Sixth Amendment right to counsel.

     The district court held that, even though Heinz had not been

indicted, his Sixth Amendment right to counsel had attached before

the December 27 and 28 tape-recorded telephone calls--because the

case had reached a "critical state."                Examining the facts of the

case, the district court concluded that at the time of the taping,

the government and Heinz had become "adversaries."                   The district

court relied on Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477,

484 (1985) and Escobedo v. Illinois, 378 U.S. 478, 490-491, 84

S.Ct. 1758, 1765 (1964).         In Moulton, the Supreme Court recognized

that the right to counsel is shaped by the need for counsel, and

noted that the right attaches at "critical" stages in the criminal

justice    process      before   trial.         Moulton,    474     U.S.    at     170.

Accordingly,      the   Court    held   that    pursuant    to    the      Sixth   and

Fourteenth Amendments, "a person is entitled to the help of an




                                        -5-
attorney at or after the time that judicial proceedings have been

initiated." Id. (quoting Brewer v. Williams, 430 U.S. 387, 398, 97

S.Ct. 1232, 1239 (1977)).   In Escobedo, the accused had requested

and been denied an opportunity to consult with his lawyer, and the

police had not effectively warned him of his right to remain

silent.   The Supreme Court held that the police had violated

Escobedo's right to counsel when the investigation was "no longer

a general inquiry into an unsolved crime, but ha[d] begun to focus

on a particular suspect, the suspect ha[d] been taken into police

custody; [and] the police carr[ied] out a process of interrogations

lending itself to eliciting incriminating statements."     Escobedo,

378 U.S. at 490-491.

                                II

     We reverse the district court on its Sixth Amendment ruling.

Current law teaches that the Sixth Amendment right to counsel does

not attach until or after the time formal adversary judicial

proceedings have been initiated. See United States v. Gouveia, 467

U.S. 180, 187-190, 104 S.Ct. 2292, 2297-2299 (1984) (Rehnquist,

J.), and authorities cited therein; McNeil v. Wisconsin, ___ U.S.

___, ___, 111 S.Ct. 2204, 2207-2211 (1991) (Scalia, J.).    See also

United States v. Johnson, 954 F.2d 1015, 1019 (5th Cir. 1992);

United states v. McClure, 786 F.2d 1286, 1290-1291 (5th Cir. 1986).

This is so despite the fact that some earlier Supreme Court cases

seem to imply that a more functional test for the attachment of the

Sixth Amendment right to counsel is appropriate.     Compare e.g.,




                                -6-
Maine v. Moulton, 474 U.S. 159, 168-170, 106 S.Ct. 477, 483-484

(1986); United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct.

2292, 2298 (1984) (Sixth Amendment right to counsel does not attach

until such     time    as   the    "`government    has    committed      itself    to

prosecute, and . . . the adverse positions of government and

defendant have solidified'") (quoting Kirby v. Illinois, 406 U.S.

682, 689, 92 S.Ct. 1926, 1936 (1967) (Sixth Amendment right to

counsel attaches only when "the state [becomes] aligned against the

accused.").    Compare also United States Ex. Rel. Hall v. Lane, 804

F.2d 79, 82 (7th Cir. 1986) ("The right to counsel attaches only

when a defendant proves that, at the time of the procedure in

question,     the     government     had   crossed      the     constitutionally-

significant    divide       from   fact-finder     to    adversary.")      (Citing

DeAngelo v. Wainwright, 781 F.2d 1516, 1519-1520 (11th Cir.), cert.

denied, 479 U.S. 953, 107 S.Ct. 444 (1986)).

                                       III

     Before concluding, we think we have a responsibility to

address the arguments raised in the dissent.                  The dissent is ill-

advised for several reasons. In the first place, the argument that

the conversations between Mitchell and Heinz should be suppressed

on grounds of a violation of the canons of ethics was not made or

considered below, nor has the argument been made on appeal.                       The

point has only been raised sua sponte by the dissenting judge.

     Furthermore,       our   research     shows   that    no    court   has   ever

suppressed evidence in a criminal case because a prosecutor on the




                                       -7-
prosecutorial team--much less an investigator or an informant--

violated DR 7-104(A)(1) in the course of an investigation and

before the grand jury indicted the defendant.       Indeed, the great

weight of the authority is to the contrary: several courts have

held that DR 7-104(A)(1) does not apply "during the investigative

process before the initiation of criminal proceedings."          United

States v. Ryan, 903 F.2d 731, 740 (10th Cir. 1990); see also United

States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986); United States v.

Fitterer 710 F.2d 1328, 1333 (8th Cir. 1983); United States v.

Kenny, 645 F.2d 1323, 1339 (9th Cir. 1981).             In short, Judge

Parker's conclusion that DR 7-104(A)(1) applies to the facts like

those before us has been explicitly rejected by almost every court

that has considered the issue.

     Even assuming, however, that the ethical canons apply to the

period during investigation and before indictment, they are not

applicable     in   this   case.    The   canons   of    ethics--unlike

constitutional principles--apply to and control only the attorney's

conduct and not the investigator's or informant's independent

conduct. United States v. Vasquez, 675 F.2d 16, 17 (2d Cir. 1982);

United States v. Jamil, 707 F.2d 638, 645-646 (2d Cir. 1983);

United States v. Lemonokis, 485 F.2d 94, 941, 956 (D.C. Cir. 1973).

Thus, DR 7-104(A)(1) would only apply to Agent Trevino if he was

acting as Blankinship's alter ego, i.e., Blankinship was directing

his actions.    United States v. Massiah, 307 F.2d 62, 66 (2d Cir.

1962).   Because Blankinship did not direct Trevino--indeed, he did




                                   -8-
not even know what Trevino was doing--the ethical canons did not

restrict Trevino's investigation of Heinz.

      Moreover, it is absolutely irrelevant that Mitchell is an

attorney. Mitchell was not Heinz's lawyer. Heinz had not retained

Mitchell in any capacity, and Mitchell certainly did not represent

Heinz in this case.     Indeed, Mitchell had only advised Heinz on one

or two occasions about totally unrelated civil matters.               As far as

this case is concerned, Mitchell was a co-defendant, pure and

simple.     The dissent refers to Mitchell as a "covert prosecutor"

and an "alter ego" of the prosecutor.                 Nothing in the record

supports this unwarranted characterization of Mitchell's role.

      The dissent decries that Mitchell "traded on Heinz's trust."

Unfortunately--or indeed fortunately for the public in many cases--

all co-defendants who turn state's evidence and cooperate with the

government,    "trade   on,"   or   have     traded   on,    their   fellow   co-

defendant's "trust."       This method is the way a lot of criminals get

convicted--legally and properly so.            Nor is it exceptional that

using Mitchell to garner information from Heinz was "inherently

deceptive"; little information is acquired by "forthright" dealings

of   informers.     Mitchell     was    simply    a   co-defendant-informant

occupying    the   quite    ordinary    role     of   this   breed   of   folks:

providing incriminating evidence against their co-defendant to save

their own hides.

      Even if we could join in with the dissent's conclusion that

the canons of ethics applied in this case, we could find no basis




                                       -9-
to suppress the evidence.            The purpose of suppressing evidence is,

primarily, to deter police and other government misconduct. United

States v. Leon, 486 U.S. 897, 104 S.Ct. 3405 (1984).                 In this case,

there has been no wilful misconduct by law enforcement officials.

Trevino did not know that Heinz was represented by counsel; even if

he had known Heinz was represented, allowing Mitchell to telephone

Heinz would not have violated any obligation the law imposes on

Trevino because the Sixth Amendment does not apply.                      Furthermore,

Assistant United States Attorney Blankinship did not know that

Heinz had retained an attorney or that Mitchell was making the

phone calls to Heinz.         In other words, even if a violation of the

canon of ethics occurred here pursuant to the "prosecutor team"

theory of the dissent, the law enforcement officials did not engage

in   a    wilful    and    knowing    violation       of   the   canon    of   ethics.

Consequently, under the good faith exception, the facts in this

case do not justify our suppression of the evidence.

         Finally, we think the position the dissent advances is unwise

because      of    its    consequences.         The    dullest    imagination     can

comprehend the devastating effect that such a rule would have on

undercover operations.          Any potential defendant with an attorney

would be insulated from any undercover operation; any potential

defendant without an attorney would hire an attorney (if he could

afford to do so) in order to build a wall between himself and the

government's investigators.            It's effect would not be limited to

undercover operations of course, but would impede, obstruct, and




                                         -10-
even eliminate many continuing investigations of organized crime,

racketeering, and drug dealing.         The impact of such a rule would

severely alter investigative operations in all criminal cases,

except those investigations focused on run-of-the-mill criminals

who cannot afford lawyers to serve as a wall between them and law

enforcement.

     This point raises a second and anomalous consequence of

adopting this rule:      The beneficiaries of Judge Parker's proposed

holding would be the big time criminals with lawyers at their

elbows to protect their rights, while such protection as the rule

may provide against an overreaching government would not trickle

down to those who cannot afford lawyers.

     For these reasons, we respectfully reject the dissent.

                                       IV

     For the foregoing reasons, the district court's suppression

order   is   REVERSED    and    REMANDED     for   further   proceedings    not

inconsistent with this opinion.

                                                     REVERSED and REMANDED.



     Robert M. Parker, District Judge, concurring in part and

dissenting in part:

     I concur in the majority's Sixth Amendment analysis. However,

I am concerned about the prosecution team's utilization of a

prosecutorial    alter    ego    to   secure   statements     from   a   target

defendant who was, at the time of the clandestine interrogation,




                                      -11-
represented by counsel on the matters about which the prosecutorial

alter ego inquired.      In my view, this conduct on the part of the

government violated the courts' ethical canons.                 I would utilize

this   Court's    inherent   supervisory   power     --    to    safeguard     the

integrity of the judicial process -- in order to suppress Heinz's

statements on this alternative ground. The majority does not share

my opinion in this regard, so I must dissent.

       Some clarification is in order.             First, Appellees' Brief

raised the ethical canons argument on appeal.             See e.g., Brief for

Appellees Richard Heinz and Scott Wilshusen, at pp. 14-18 ("the

issue,    the    government's    knowing   violation       of    the    Code    of

Professional     Responsibility   provides    an    alternative        basis   for

affirmance."); id. at p. 16 ("The Court has supervisory authority

over    government   attorneys    and   may   in    its    discretion      order

suppression of evidence obtained in violation of a disciplinary

rule.") (citing United States v. Hammad, 858 F.2d 834 (2d Cir.

1988)).

       Furthermore, while it is true that no court has yet suppressed

evidence because a prosecutor, investigator or informant violated

DR 7-104(A)(1) in the course of an investigation -- and before a

grand jury actually indicted a target -- my research has not found

a single case factually "on all fours" with this one.              And the body

of caselaw partially referenced by the majority actually recognizes

that a case-by-case analytical approach is to be utilized by courts

contemplating whether their supervisory suppression authority is




                                    -12-
                                     12
warranted.   See e.g., United States v. Hammad, 858 F.2d 834, 840

(2d Cir. 1988) (Kaufman, J.).1   In short:   my conclusion that DR 7-

104 (A)(1) applies to the facts before us, and counsels suppression

of the tape recorded "conversations" between Mitchell and Heinz,

has never been addressed -- let alone "explicitly rejected" -- by

other courts construing the Rule.2      The peculiar, prosecutorial

alter ego facts of this case make it a truly exceptional one.    The

holding I espouse in this dissent is indeed quite narrow -- and

incapable of producing the impediments to prosecution about which

the majority has expressed concern.

     Also, contrary to the majority's assertion and as I will

explain, it is extremely relevant that Mitchell is an attorney.

Mitchell is not "pure[ly] and simpl[y]" a "co-defendant."     First,

in that Heinz had not been indicted at the time in question,

Mitchell was no "co-defendant" of Heinz's.    Second, Mitchell is an

attorney who had performed legal services for Heinz in the past.


    1
        This point too was made in the Appellees' Appellate Brief,
at p. 16 ("In Hammad, the court declined to establish a bright line
rule for determining whether suppression would be appropriate.
Instead, Hammad utilized a case by case analysis.").
        2
          Also, in response to the majority's no-other-court-
precedent-for-suppression argument, it is worth noting that the
government's conduct in this case appears to have been motivated by
a relatively recent phenomenon:     the June 8, 1989, "Thornburgh
Memorandum." The Thornburgh Memorandum closes with the categorical
statement: "the 'authorized by law' exemption to DR 7-104 applies
to all communications with represented individuals by Department
attorneys or by others acting at their direction." Memorandum To
All Justice Department Litigators From Dick Thornburgh, Attorney
General, June 8, 1989, at p.7 (emphasis added).




                                 -13-
                                  13
This is a special sort of trust that Mitchell traded on -- i.e.,

one that does not exist in the typical informant investigation.

And most important is the fact that, because he is an attorney,

Mitchell was able to act as a prosecutorial alter ego for the

government.      True,    if   it   had     been   a     non-lawyer     doing    the

questioning of Heinz, the prosecutorial alter ego doctrine would

require that person's questions and actions to be "directed" by a

prosecutor.    But by using a lawyer like Mitchell, the government

attempted (and apparently has effectuated) an "end run" around the

well-established prosecutorial alter ego doctrine                     -- and in so

doing, has violated the integrity of the courts.                 Here is why.

      In this case, when Heinz took steps to secure counsel, the

government took impermissible steps in response; it moved to

undercut   Heinz's   decision       by    using    a    lawyer   to    essentially

interrogate Heinz about the matters for which he had retained

counsel.     Moreover, the government used a lawyer with whom Heinz

had    previously        established        an         attorney-client      trust.

Impermissibly, Agent-Attorney Mitchell traded on Heinz's attorney-

client trust when he accepted the government's job of covert

prosecutor    against    Heinz.          Compare   e.g.,     United     States    v.

Lemonakis, 485 F.2d 941, 956 (D.C. Cir. 1973) (code provisions

appear designed in part to avoid the damage of "artful" legal

questions; informant was not the alter ego of the U.S. Attorney's

Office, so there was no ethical breach by the U.S. Attorneys

prosecuting the case -- and thus, no need for the court to reach




                                     -14-
                                      14
the question of what legal consequences might flow had the ethics

conclusion been otherwise), cert. denied, 415 U.S. 989, 94 S.Ct.

1586 (1974); United States v. Schwimmer, 882 F.2d 22, 28-29 (2d

Cir. 1989) (as part of an on-going criminal investigation, the

defendant had been lawfully subpoenaed to testify before the grand

jury; "[h]e    [was]    not   the   target    of    that   investigation,       his

testimony [was] immunized pursuant to § 6002, and he [could]

consult with his counsel any time outside the grand jury room.

Accordingly,   the     prosecutor's    direct      questioning   of    Schwimmer

before the grand jury outside the presence of [the latter's]

counsel [was] authorized by law and therefore [did] not violate the

Code of Professional Responsibility."), cert. denied, 493 U.S.

1071, 110 S.Ct. 1114 (1990).        Compare also United States v. Jamil,

707 F.2d 638, 645-646 (2d Cir. 1983) (in pre-indictment context,

where government investigators were not acting as alter egos of

prosecutor and prosecutor only became aware of recording after it

was made, Customs' agent's action in wiring [non-lawyer] informant

and recording conversation with represented suspect did not violate

DR 7-104; DR 7-104 (A)(1) protects the defendant from the danger of

being "tricked" by opposing counsel's artfully crafted questions

into giving his case away.); United States v. Buda, 718 F. Supp.

1094, 1095-1096 (W.D.N.Y. 1989) (distinguishing Hammad; prosecutor

did not direct the (nonlawyer) informant to arrange and record

informant's    conversations    with    the   defendant,      and     in   no   way

attempted to direct the content of, or script, the informant's




                                      -15-
                                       15
conversation with the defendant so as to "beguile" the defendant

into giving his case away to an alter ego of the prosecutor).



       Starting on December 13, 1989 -- when he pleaded guilty and

agreed to cooperate with law enforcement authorities -- Attorney

Mitchell was a government agent.        He was acting as a government

agent during the December 27 and 28 telephone "conversations" at

issue. See generally United States v. Johnson, 954 F.2d 1015, 1019

(5th Cir. 1992) (co-defendant who has pled guilty and agreed to

cooperate with prosecutors is an agent of the government).        But

Attorney Mitchell was not a typical, or "simple" "co-defendant-

informant" during these "conversations."      His training enabled him

to act, and he did act, as a special sort of deceptive government

agent -- to wit:    the covert, interrogating, prosecutorial alter

ego.

       IRS Agent Trevino is presumed to have known that Defendant

Heinz was represented by counsel as of December 22, 1989 on the

money laundering and bank fraud matters discussed in the taped

telephone "conversations," and that Mitchell was a lawyer who had

represented Heinz in the past.    Such information was available to

Trevino.   See e.g., United States v. Deutsch, 475 F.2d 55, 57 (5th

Cir. 1973), overruled on other grounds, United States v. Henry, 749

F.2d 203 (5th Cir. 1984) (different arms of government, especially

when closely connected for the purpose of a case, are not separate

entities insulated from the knowledge and information possessed by




                                 -16-
                                  16
one another for purposes of Brady; the prosecution was deemed in

possession of material that was contained in the files of the

United States Postal Service); Williams v. Whitley, 940 F.2d 132,

133 (5th Cir. 1991) (to the same effect).                   See also United States

v.   Thomas,    474     F.2d   110,     112    (10th    Cir.)      ("The    enforcement

officials [who interviewed defendant in violation of the canons of

ethics governing the actions of attorneys in all United States

Courts in the circuit] are agents of the prosecuting party"), cert.

denied, 412 U.S. 932, 93 S.Ct. 2758 (1973).                       And clearly, Agent-

Attorney Mitchell actually knew Heinz was represented by counsel in

the criminal investigation at issue.                    Mitchell said so at the

district      court's    hearing      on    Defendants'      motion        to   suppress.

Transcript of March 13, 1992, Hearing on Motions (Testimony of

Witnesses), at pp. 76-77 (Testimony of Ted Mitchell -- to the

effect that before the recorded telephone conversations took place,

Mitchell was aware that Defendant-Appellee Heinz had retained a

lawyer by the name of Rogers).

       More importantly, though:               Agents Trevino and Mitchell's

information      and    conduct    is      imputed     to   the     case    prosecutor,

Blankinship.      See e.g., United States v. Antone, 603 F.2d 566, 569

(5th   Cir.    1979)    ("Had     the      investigators      been    federal,     their

knowledge      would    have    been       imputed   to     the    prosecution.       In

considering use of perjured testimony this Court has declined to

draw a distinction between different agencies under the same

government, focusing instead upon the 'prosecution team' which




                                           -17-
                                            17
includes        both   investigative      and   prosecutorial   personnel.")

(emphasis added); United States v. Auten, 632 F.2d 478, 481 (5th

Cir. 1980) (holding that the prosecutor's lack of actual knowledge

was not a valid excuse for a Brady violation:           "[i]n the interests

of inherent fairness," the prosecution is obligated to produce

certain evidence actually or constructively in its possession or

accessible to it; to hold otherwise would be "inviting and placing

a premium on conduct unworthy of representatives of the United

States Government."); Thomas, supra, at 112 ("The enforcement

officials [who interviewed defendant in violation of the canons of

ethics governing the actions of attorneys in all United States

Courts in the circuit] are agents of the prosecuting party").

     The prosecution team in this case traversed DR 7-104(a)(1) by

thwarting the attorney-client relationship between Heinz and his

defense counsel, in order to trick Heinz into incriminating himself

to a covert prosecutor about matters for which Heinz had secured

counsel.3        The   courts   possess    inherent   supervisory   power   to

            3
           The government has argued to this Court that the
investigatory subject of the monitoring was perjury. See e.g.,
Brief for the United States of America, at 16 ("The purpose of the
taping was not to acquire information regarding the money-
laundering and bank-fraud offenses, but rather for these embryonic
potential cover-up offenses.") (emphasis added).      However, the
government recently supplemented the record (in response to a
request by this Court) to include the application for (IRS)
supervisory approval of the monitoring.      And this application
focuses on: 18 U.S.C. § 1956 (Laundering of monetary instruments);
31 U.S.C. § 5324 [Structuring transactions to evade reporting
requirement (of 31 U.S.C. §5313(a) (Reports on domestic coins and
currency transactions)) prohibited]; and 26 U.S.C. § 7201 (Attempt
to evade or defeat tax). Box 19 ("Primary Alleged Offense(s)").




                                       -18-
                                        18
safeguard    the       criminal     justice      system      from     overzealous

prosecutorial and investigative activities; they possess the power

to safeguard the fair administration of justice.               See e.g., United

States v. Hammad, 858 F.2d 834 (2d Cir. 1988) (balancing the twin

administrative goals of respecting the protection provided by DR 7-

104(A)(1), which goes beyond the protection provided by the Sixth

Amendment, and of "imposing adequate safeguards without crippling

law enforcement."), cert. denied, -- U.S. --, 111 S.Ct. 192 (1990)

(emphasis added); United States v. Lopez, 765 F. Supp. 1433 (N.D.

Cal. 1991) (to the same effect).           The supervisory power theory "is

premised    on   the   inherent     ability     of   the   federal     courts     to

'formulate   procedural     rules    not     specifically     required      by   the

Constitution or the Congress.'"          United States v. McClintock, 748

F.2d 1278, 1284 (9th Cir. 1984) (quoting United States v. Hasting,

461 U.S. 499, 505, 103 S.Ct. 1974, 1978 (1983) (Burger, C.J.)),

cert. denied, 474 U.S. 822, 106 S.Ct. 75 (1985).                    See McNabb v.

United   States,   318    U.S.    332,   340,   63   S.Ct.    608,    612   (1943)

(Frankfurter, J.) (the Constitution defines only the "minimal

historic safeguards" defendants must receive, rather than the outer

bounds of those courts may afford them).



While the application's narrative explanation of the would-be
monitoring discloses that one of the topics of the calls was
anticipated to be the "fabricating [of] testimony to provide an
alibi concerning [the currency-oriented] criminal acts," the
explanation concludes with the sweeping statement: "[t]he subjects
to be monitored are involved in violation of the[se] above noted
statutes." (emphasis added)




                                      -19-
                                       19
     It is well established that a federal court may use its

supervisory    powers   to   dismiss   an     indictment    on    the   basis    of

governmental misconduct. See e.g., United States v. Owen, 580 F.2d

365, 367 (9th Cir. 1978).       But this remedy is disfavored.             United

States v. Rogers, 751 F.2d 1074, 1076-1077 (9th Cir. 1985) (citing:

United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, 1419

(1966); United States v. Jacobs, 855 F.2d 652, 655 (9th Cir.

1988)).    In determining whether the government misconduct in a

particular case is sufficiently egregious to warrant dismissal of

an   indictment,   courts     have     been    guided      by    two    important

considerations.    First, courts frequently look to whether there is

a pattern of similar government misconduct, on the theory that such

widespread misconduct increases the threat to judicial integrity.

See e.g., United States v. Griffith, 756 F.2d 1244, 1249 (6th

Cir.), cert. denied, 474 U.S. 837, 106 S.Ct. 114 (1985); United

States v. Rosenfield, 780 F.2d 10, 11 (3d Cir. 1985), cert. denied,

478 U.S. 1004, 106 S.Ct. 3294 (1986); United States v. Brown, 602

F.2d 1073, 1076-1078 (2d Cir.), cert. denied, 444 U.S. 952, 100

S.Ct. 427 (1979).       Second, courts look to whether there is an

alternative remedy the court may use to preserve judicial integrity

and deter future government misconduct. See e.g., United States v.

Simpson,   927   F.2d   1088,   1091    (9th     Cir.   1991)      (Nelson,     J.,

concurring).     If there is an effective alternative remedy, the

extreme remedy of dismissal is not justified.                   See e.g., United

States v. Lopez, 765 F. Supp. 1433, 1460 (N.D. Cal. 1991).




                                     -20-
                                      20
     The suppression of evidence is a remedy less drastic than the

dismissal   of   an   indictment   --   and   in   my   opinion   it    is   the

appropriate remedy for the prosecutorial misconduct in this case.

See United States v. Killian, 639 F.2d 206, 210 (5th Cir.) (actions

by U.S. Attorney's Office were "highly improper and unethical;"

"[s]uppression of the statements would probably have been the

appropriate sanction in this case, were it not for the refusal of

the government to use the statements.") (emphasis added), cert.

denied, 451 U.S. 1021, 101 S.Ct. 3014 (1981).               Compare United

States v. Thomas, 474 F.2d 110, 111-112 (10th Cir.) (suppression

may be the appropriate response of judiciary to prosecutorial

violations of courts' canons of ethics), cert. denied, 412 U.S.

932, 93 S.Ct. 2758 (1973).

     The applicable ethical rules of the Western District of Texas

condemn the actions of the government toward Defendants.               DR 7-104

(A)(1) provides:

     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 other party or is authorized by law to
     do so. . . . 4

     4
       ABA DR 7-104(A)(1), ABA Model Rule of Professional Conduct
4.2, and Rule 4.02(a) of the Texas Code of Professional
Responsibility share common language and purpose. For this reason,
this Court will utilize authority and sources concerning all three
in the course of this opinion (all three are adopted as standards
by the Western District of Texas Local Rule AT-4 (Standards of
Profession Conduct)).




                                   -21-
                                    21
The purpose underlying DR 7-104 (A)(1) and its analogues -- to

protect the sanctity of the attorney-client relationship and by so

doing, safeguard the integrity of the profession and preserve

public confidence in our system of justice -- looms large within

the context of the criminal justice system, in light of the gravity

of the interests at stake in this system.            The Sixth Amendment and

the disciplinary rule serve separate, albeit similar purposes.

United States v. Hammad, 858 F.2d 839, 843 (2d Cir. 1988), cert.

denied, -- U.S. --, 111 S.Ct. 192 (1990).             As already noted, the

disciplinary     rule        secures   protection   not   prescribed   in   the

Constitution.     Id.

     The use of informants to gather evidence against a suspect

will generally, if not almost always, fall within the ambit of the

"authorized by law" exception to DR 7-104 (a)(1).               Hammad, supra,

858 F.2d at 839.      See e.g., United States v. Chestman, 704 F. Supp.


     Model Rule 4.2 states:

     In representing a client, a lawyer shall not communicate
     about the subject of the representation with a party the
     lawyer knows to be represented by another lawyer in the
     matter, unless the lawyer has the consent of the other
     lawyer or is authorized by law to do so.

And Texas      Code     of     Professional    Responsibility   Rule   4.02(a)
provides:

     In representing a client, a lawyer shall not communicate
     or cause or encourage another to communicate about the
     subject of the representation with a person, organization
     or entity of government the lawyer knows to be
     represented by another lawyer regarding that subject,
     unless the lawyer has the consent of the other lawyer or
     is authorized by law to do so.




                                        -22-
                                         22
451, 453-454 (S.D.N.Y. 1989) (use of corporate insider informant to

tape conversations with defendant accused of "insider trading" of

stocks falls within the "authorized by law" exception).               But this

practice does not do so per se.         The question of what prosecutorial

conduct constitutes an ethical violation is to be determined on a

case-by-case basis.       Hammad, supra, 858 F.2d at 836.

       The   prosecution      team's    questioning    of     Heinz   was     an

illegitimate investigative-prosecutorial technique -- due to the

deleterious consequences for the integrity of the administration of

justice      inhering    in      Government     Agent-Attorney      Mitchell's

surreptitious, prosecutorial alter ego interrogation of Heinz.5

The courts' canons of ethics prohibit prosecution teams from using

alter egos to do what the prosecutors themselves cannot do.                 Such

utilization is certainly not "authorized by law." United States v.

Jamil, 707 F.2d 638, 645 (2d Cir. 1983); United States v. Ryans,

903 F.2d 731, 735 (10th Cir.), cert. denied, -- U.S. --, 111 S.Ct.

152 (1990). No alleged "chinese wall" should be allowed to provide

team    prosecutors     access    to   the    ill-gotten    gains   from    such

prosecutorial alter ego interrogations.               In today's world of

advanced technology, such a rule runs an undue and unacceptable


        5
         The recording transcripts reflect that Mitchell was an
active questioner of Heinz in the three "conversations" at issue.
It is also apparent that Trevino and Mitchell initiated the first
recorded telephone "conversation" with Heinz, at 11:40 a.m. on
December 27, 1989.       Transcripts of Consensually Monitored
Conversation Between Ted Mitchell and Rick Heinz of 12/27/89 and
12/28/89 (TC 96, TC 97, and TC 98).




                                       -23-
                                        23
risk of sanctioning Orwellian investigative techniques and creating

Kafkaesque judicial administration.6

     In short: in his taped "conversations" with Heinz, Government

Agent-Attorney Mitchell was acting as a clandestine prosecutor --

conducting an inherently deceptive (prosecutorial) interrogation.

By enabling Lawyer-Agent Mitchell's breach of his own ethical duty

not to contact Heinz -- who was known to be represented by counsel

in the matters Mitchell sought to discuss with Heinz -- the

prosecution team traversed the district court's ethical rules, and

subverted the integrity of the criminal justice system.           And I

simply do not think the government should enjoy a "windfall" -- in

the form of a citizen's rights and liberties -- from the misconduct

of its prosecution team.     See United States v. Killian, 639 F.2d

206, 210 (5th Cir.) (actions by U.S. Attorney's Office violated DR

7-104(A)(1); and "suppression of the statements would probably have

been the appropriate sanction in this case, were it not for the

refusal of the government to use the statements.") (emphasis

added), cert. denied, 451 U.S. 1021, 101 S.Ct. 3014 (1981).      As the

majority purports to recognize:         "[t]he purpose of suppressing

evidence is, primarily, to deter police and other government




      6
        See GEORGE ORWELL, NINETEEN EIGHTY-FOUR (1949); FRANZ KAFKA, THE
TRIAL (1925).    Compare Richard Lacayo, Nowhere to Hide:          Using
Computers, High-Tech Gadgets and Mountains of Data, an Army of
Snoops is Assaulting Our Privacy, TIME, Nov. 11, 1991, at 34 (cover
story).




                                 -24-
                                  24
misconduct.        United States v. Leon, 486 U.S. 897, 104 S.Ct. 3405

(1984)."

      The Appellees' Brief says:                "Although the district court did

not reach the issue, the government's knowing violation of the Code

of Professional Responsibility provides an alternative basis for

affirmance."             Brief   for    Appellees     Richard    Heinz   and    Scott

Wilshusen, at pp. 14-15 (emphasis added).                   An examination of the

record, however, reveals that a more accurate characterization

would be that Defense Counsel failed to frame an attorney-client

privilege        issue    for    the   district    court    in   a   manner   clearly

implicating the courts' ethical canons; and thus, the district

court's order of March 27, 1992, addresses the defendants' motion

to   claim    an    attorney-client        privilege    between      Defendants   and

Mitchell, while saying nothing about the (attorney-client) ethical

rule violations addressed in this dissent.                       Still, the DR 7-

104(A)(1) argument was clearly presented to this Court.                   And while

it is rare for this Court to address an issue not taken up in the

district court, issues involving the courts' canons of ethics are

unique.      The courts -- both, trial courts and the courts of appeal

--   have    a     significant,        vested    interest   in   safeguarding     the

integrity of the judicial system.                 Indeed, judicial responses to

prosecutorial violations of the courts' canons of ethics are not

waivable by defendants alone.               United States v. Thomas, 474 F.2d

110, 112 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758

(1973).




                                           -25-
                                            25
     For the foregoing reasons, I would affirm the district court's

suppression order on the ground that the government's conduct in

this case infringed judicial integrity.




                               -26-
                                26
