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United States v. Sabean

United States District Court, D. Maine

October 3, 2016

UNITED STATES OF AMERICA,
v.
JOEL A. SABEAN, Defendant.

          ORDER ON MOTION TO SUPPRESS

          GEORGE Z. SINGAL UNITED STATES DISTRICT JUDGE.

         Before the Court is the Motion to Suppress Statements of Defendant (ECF No. 27). The Court held an evidentiary hearing on this Motion on September 29, 2016. For reasons explained herein, the Court now DENIES the Motion to Suppress.

         I. LEGAL STANDARD

         The Citizens Protection Act provides that “[a]n 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) (the “McDade Amendment”). The District of Maine has adopted the Maine Rules of Professional Conduct as the rules that govern attorneys who appear before the court. See D. Me. Local Rule 83.3(d). Thus, under the McDade Amendment, the District of Maine's Local Rules, and Rule 4.2(a) of the Maine Rules of Professional Conduct, “a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or a court order.” Me. Rules of Prof. Conduct 4.2(a). In this case, Defendant alleges that a violation of this rule (hereinafter, a “McDade no-contact violation”) occurred when agents for the Government interviewed him on January 29, 2014 knowing that he was represented by counsel but without first obtaining the consent of his counsel. Defendant further asserts that this McDade no-contact violation amounted to a violation of his Fifth Amendment due process rights and that the Court must therefore suppress the statements he made during the January 29th interview.

         United States v. De La Cruz, No. 14-2132, 2016 WL 4410063 (1st Cir. Aug. 19, 2016) is a useful starting point in analyzing Defendant's rather novel argument. In De La Cruz, the First Circuit explained:

‘Suppression of evidence is strong medicine, not to be dispensed casually.' United States v. Adams, 740 F.3d 40, 43 (1st Cir.), cert. denied, __U.S. __, 134 S.Ct. 2739 (2014). Normally, a violation of federal or state law triggers the exclusionary rule only if the evidence sought to be excluded ‘ar[ises] directly out of statutory violations that implicate[ ] important Fourth and Fifth Amendment interests.' Sanchez-Llamas v. Oregon, 548 U.S. 331, 348 (2006); see United States v. Caceres, 440 U.S. 741, 751-55 (1979). As a result, ‘[t]he cases in which the Supreme Court has approved a suppression remedy for statutory violations are hen's-teeth rare.' Adams, 740 F.3d at 43.

2016 WL 4410063, at *4 (internal footnote omitted). In De La Cruz, the First Circuit went on to hold that “failure to obtain an administrative arrest warrant” as required by federal statute could not alone justify the suppression of evidence. See id. at *4.

         Against this backdrop, the Court must determine whether the preponderance of the evidence establishes that a McDade no-contact violation occurred on January 29, 2014.[1]Additionally, the Court must consider whether to exercise its discretion to suppress evidence obtained as the result of any proven McDade no-contact violation.

         II. FACTUAL FINDINGS

         On the afternoon of January 15, 2014, IRS Special Agent Cordier (“SA Cordier”) traveled with Special Agent Jason Rogers to serve a grand jury subpoena for documents on PK Associates, a bookkeeping company owned by Patricia and Raymond Kuhl. They arrived at the Kuhls' residence at approximately 4:30 p.m. The agents proceeded to explain that they were conducting an investigation of Dr. Sabean and had questions for the Kuhls in this regard. Approximately two hours into this interview, around 6:30 p.m., SA Cordier had IRS Special Agent Margo Fitzgerald (“SA Fitzgerald”), who was the lead agent on the Sabean investigation, join the interview by phone. During the course of the interview, the Kuhls were asked not to contact Dr. Sabean or any other person and were shown a similar request contained in the written subpoena. (Gov't Ex. 2 at ¶ 064-0005.) Patricia Kuhl was left with the impression that she was not allowed to contact Dr. Sabean or any other person about this subpoena.[2] The agents did not explicitly ask and were not explicitly told that Dr. Sabean presently had an attorney who represented him on tax matters.[3]Ultimately, SA Cordier took “a six-inch stack” of records from the Kuhls that were deemed initially responsive to the subpoena when the January 15, 2014 interview concluded.

         On January 16, 2014, SA Cordier reviewed documents she had taken from the Kuhls' residence. Upon review, SA Cordier determined that there might be attorney-client privileged information within the documents and requested a “filter AUSA” through SA Fitzgerald so that documents might be reviewed for attorney-client privilege. Emails from SA Fitzgerald to Assistant United States Attorney Joyce on January 16, 2014, reflect that SA Fitzgerald was aware by this date of the existence of privileged materials and the existence of records from a private investigator, who was, at the time, described as “hired” by Sabean “[a]t the behest of the Kuhls” “to follow [Shannon Sabean] around” during the 2010-2012 time frame. (Def. Exs. 6 & 7.)

         SA Fitzgerald also spoke with Patricia and Raymond Kuhl by phone on January 16, 2014. During this phone call, SA Fitzgerald and the Kuhls discussed the logistics of obtaining records responsive to the grand jury subpoena served upon PK Associates, as well as matters relating to a loan, the payment of financial obligations, and Dr. Sabean's mother.

         On January 17, 2014, SA Fitzgerald again spoke with Patricia Kuhl. During this call, Patricia Kuhl told SA Fitzgerald that she had not had contact with Joel Sabean or anyone working on his behalf. SA Fitzgerald told Kuhl to call her if any such contact occurred. (Def. Ex. 8.) By this point, SA Fitzgerald was aware that Attorney Michael Sheehan was potentially involved in the hiring of the private investigator in Florida, known as Sheer Investigations.

         On January 21, 2014, SA Fitzgerald, accompanied by IRS Special Agent Pepin (“SA Pepin”), conducted another interview of Patricia and Raymond Kuhl at the Kuhls' residence. SA Fitzgerald also brought boxes to the Kuhls' residence in which to pack documents responsive to the subpoena. During this interview, the Kuhls raised issues regarding the private investigator and attorney-client privilege. At that time, Attorney Sheehan was explicitly discussed in connection with attorney-client privilege and the hiring of Sheer Investigations. The Kuhls were asked to segregate materials that might be subject to attorney-client privilege during this meeting. (Def. Exs. 10 & 11.)

         By January 27, 2014, PK Associates completed its production of documents in response to the subpoena. The production consisted of forty-two boxes of documents and a flash drive. Patricia Kuhl had segregated some of the documents and marked them as privileged. The produced documents were reviewed for attorney-client privilege by an assembled taint team, which ultimately produced a 59-page privilege log. (See Ex. C (ECF No. 27-3).)

         On January 29, 2014, SA Fitzgerald and IRS Special Agent Coviello traveled to the offices of Dr. Sabean in South Portland. SA Fitzgerald came to the interview with a prepared outline that included, in relevant part, the following questions: “Who is SHEER and Associates? Sheer Investigations? What are these payments for? What was result? Consent to obtain these files?” (Def. Ex. 12 at ¶ 022-0012.02.) SA Fitzgerald did not advise Dr. Sabean of any non-custodial rights pursuant to directions she received from AUSA ...


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