From Casetext: Smarter Legal Research

United States v. Vasquez

United States Court of Appeals, Second Circuit
Jan 21, 1982
675 F.2d 16 (2d Cir. 1982)

Summary

holding that the No-Contact Rule's applicability in criminal investigations "is doubtful"

Summary of this case from U.S. v. TAPP

Opinion

No. 594, Docket 80-1165.

Argued January 18, 1982.

Decided January 21, 1982. Opinion March 18, 1982.

This appeal was originally heard on January 18, 1982, and was decided by order dated January 21, 1982. Such a summary disposition has no precedential value under our Local Rule § 0.23. Counsel for appellee, however, has requested that the January 21 order be published, so that it can be relied upon in other similar cases. Accordingly, we have decided to repeat the substance of our January 21 order in this opinion, which will be published.

Daniel H. Murphy, II, Pelham Manor, N.Y., for defendant-appellant.

Daniel H. Bookin, Asst. U.S. Atty., New York City (John S. Martin, Jr., U.S. Atty., S. D. N.Y., Stuart J. Baskin, Asst. U.S. Atty., New York City, of counsel), for appellee.

Appeal from the United States District Court for the Southern District of New York.

Before FEINBERG, Chief Judge, and MANSFIELD and KEARSE, Circuit Judges.



Alfred Vasquez appeals from a judgment of the Southern District of New York entered on January 11, 1980, convicting him, upon his plea of guilty, of one count of conspiracy to steal and embezzle checks from the mails, 18 U.S.C. § 371, 83 counts of embezzling mail, 18 U.S.C. § 1709, and one count of making false declarations before a grand jury, 18 U.S.C. § 1623. In pleading guilty Vasquez preserved his right to appeal the denial of his motion to suppress a tape recording of a conversation he had with a government informant on the ground that it was made in violation of his Sixth Amendment right to counsel.

There is no merit to Vasquez's argument that the tape recording was made in violation of his Sixth Amendment right to counsel. While the government's investigation of Vasquez may have commenced when he was called before the grand jury for the first time, the fact that a person is the subject of an investigation is not enough to trigger his Sixth Amendment right to counsel. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Duvall, 537 F.2d 15 (2d Cir.), cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976). For a Sixth Amendment right to counsel to attach, adversarial proceedings must have commenced against an individual, "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). Vasquez's argument is that adversarial proceedings against him commenced when he was called as a witness before a grand jury in September of 1978. That he was subpoenaed to testify as a grand jury witness, however, did not subject him to adversarial proceedings. We find unpersuasive Vasquez's attempt to rely upon decisions of the New York state courts in light of these controlling precedents.

Nor do we find merit in Vasquez's argument that, because he had at his own request been represented by counsel when he testified before the grand jury and prior to the time of the recording, Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility was violated, entitling him to invoke the Sixth Amendment. Such a principle would simply enable criminal suspects, by retaining counsel, to hamper the government's conduct of legitimate investigations. Even assuming this provision of the Code to be applicable to a criminal investigation, which is doubtful, it was not intended to lead to such a result. Moreover, the district court found that at the time of the recording Vasquez was not represented by counsel, and we have been presented with no evidence suggesting that this finding was in any way erroneous.

We have considered Vasquez's other arguments and find them to be without merit. The judgment of the district court is affirmed.


Summaries of

United States v. Vasquez

United States Court of Appeals, Second Circuit
Jan 21, 1982
675 F.2d 16 (2d Cir. 1982)

holding that the No-Contact Rule's applicability in criminal investigations "is doubtful"

Summary of this case from U.S. v. TAPP

In United States v. Vasquez, 675 F.2d 16, 17 (2d Cir. 1982) (per curiam), the Court of Appeals stated that it was "doubtful" that DR 7-104(A)(1) would apply to an undercover recording made prior to the commencement of a formal prosecution. If the Disciplinary Rule was indeed applicable in such a situation, the Court observed, it would "simply enable suspects, by retaining counsel, to hamper the government's conduct of legitimate investigations," Id.

Summary of this case from U.S. v. Guerrerio

In United States v. Vasquez, 675 F.2d 16 (2d Cir. 1982), the defendant moved to suppress a tape recording of his conversation with a government informant, which took place after he had testified before a grand jury while represented by counsel and before he was indicted.

Summary of this case from United States v. Standard Drywall Corp.

In U.S. v. Vasquez, 675 F.2d 16 (2nd Cir. 1982), the defendant employed counsel to represent him during testimony before a grand jury.

Summary of this case from State v. Mosher
Case details for

United States v. Vasquez

Case Details

Full title:UNITED STATES OF AMERICA, APPELLEE, v. ALFRED VASQUEZ, DEFENDANT-APPELLANT

Court:United States Court of Appeals, Second Circuit

Date published: Jan 21, 1982

Citations

675 F.2d 16 (2d Cir. 1982)

Citing Cases

United States v. Jamil

He was not in custody. See Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United…

U.S. v. Guerrerio

The Second Circuit, however, has addressed this issue in dictum. In United States v. Vasquez, 675 F.2d 16, 17…