Petition — Fitterer v. United States

Oftice- Supreme Court, U.S.

FILE @

83-266

AUG 18 1983

No.

ALEXANDER L. STEVAS,

STERK

IN THE

Supreme Court of the Anited States

October Term, 1983

HARLAND G. “SKIP” FITTERER,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MICHAEL F. FETSCH

Attorney at Law

838 Minnesota Building

St. Paul, Minnesota 55101

Telephone: (612) 227-3236

224-7631 _- Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 - 224-7631

QUESTION PRESENTED

Whether the Government’s intentional elicitation of in-

culpatory statements from a Grand Jury target whom its

attorney and F.B.J. case agent know is represented by counsel

and the concurrent, purposeful violation of the Code of Pro-

fessional Responsibility ought to be judicially approved?

PARTIES TO PROCEEDING

The following appeared as counsel of record on appeal be-

fore the United States Court of Appeals for the Eighth Circuit

For the United States of America:

Hon. James M. Rosenbaum

United States Attorney, District of Minnesota

Mr. Thorwald Anderson, Jr.

Assistant United States Attorney, District of Minnesota

234 United States Courthouse

110 South Fourth Street

Minneapolis, Minnesota 55401

For the Petitioner:

Mr. Michael F. Fetsch

Attorney at Law

838 Minnesota Building

St. Paul, Minnesota 55101

ii

TABLE OF CONTENTS

Question Presented

Parties to Proceeding

Table of Contents

Table of Authorities

Opinion Below

Jurisdiction

Constitutional and Statutory Prov isions Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

Appendix

i

Page

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TABLE OF AUTHORITIES

Cases:

Hoffa v. United States,

385 U.S. 293 (1966)

Lee v. United States,

322 F.2d 770 (5th Cir. 1973)

Ricks v. United States,

334 F.2d 964 (D.C. Cir. 1964)

United States v. Jamil,

546 F.Supp. 646 (D.C.E.D. N.Y. 1982)

United States v. Vasquez,

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

Ethical Standards:

Canon 7 American Bar Association Code of

Professiona! Responsibility (Adopted by

Minnesota Supreme Court August 4, 1970)

Disciplinary Rule 7-104(A)(1) American Bar

Association Code of Professional Responsibility

(Adopted by Minnesota Supreme Court

August 4, 1970)

Other:

A.B.A. Standards, The Prosecution Function

§ 3.6(d)

Clark & Wolfram, “Professional Responsibility:

Issues for Minnesota Attorneys”, Minnesota State

Bar Continuing Leyal Education, pp. 726-27

(1976)

9 United States Attorneys Manual,

Ch. 11.250 (1979)

Page

No.

IN THE

Supreme Court of the Gnited States

October Term, 1983

HARLAND G. “SKIP” FITTERER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

The Petitioner, Harland G. “Skip” Fitterer, respectfully

requests that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals for

the Eighth Circuit entered in this proceeding on June 30, 1983.

OPINION BELOW

The decision of the United States Court of Appeals for the

Eighth Circuit, filed June 30, 1983, (No. 82-2338), appears

in the Appendix.

The United States District Court for the District of Minne-

sota did not render a written opinion.

JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C. §

1254(1).

The opinion of the United States Court of Appeals was filed

June 30, 1983.

CONSTITUTIONAL AND

OTHER PROVISIONS INVOLVED

Fourteenth Amendment, United States Constitution:

“Section I. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shal! make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.”

Code of Professional Responsibility, DR 7-104:

“(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 represent-

ing such other party or is authorized by law to do so.”

3

STATEMENT OF THE CASE

On January 22, 1982, two F.B.I. agents served the Peti-

tioner with a subpoena requiring him to appear before and

give evidence to the United States Grand Jury for the District

of Minnesota (T. 5/3 82 p. 80). The Petitioner was the

“focus” (target) of the government's investigation (T. 5/3/82

p. 80).

The Petitioner, pursuant to the subpoena’s mandate, ap-

peared before the Grand Jury but invoked his constitutional

right to remain silent (T. 5 3 82 p. 8; T. 23/82 p. 4). As of

this date, February 3, 1982, both the Assistant United States

Attorney handling this case, James A. Morrow, and the F.B.1.

case agent, George B. Parks, Jr., knew that the Petitioner was

represented by counsel (T. 5/3/82 pp. 84, 82-3, 90).

After the Petitioner's Grand Jury appearance, the govern-

ment entered into an “Agreement of Cooperation” with an-

other Grand Jury target turned informer, Ronald Sterry, on

February 5, 1982. This agreement was reduced to writing on

February 11, 1982 (T. 5 3 82 pp. 70, 73, 34, 39). The agree-

ment and the negotiations which preceded its execution re-

quired that the informant Sterry wear a body recorder-trans-

mitter and attempt to obtain inculpatory admissions from

other targets of the investigation who were each represented

by counsel (T. 5 3 82 p. 72). The fact of representation was

then known to the government because both the Petitioner and

the other target who was also recorded, Jerry Sheldon Peter-

son, had already appeared before the Grand Jury and invoked

their rights to remain silent (T. 5 3 82 pp. 84, 72, 101-2).

4

Agent Parks obtained four (4) recorded conversations:

Tape Date F.B.1.’s Participant Unknowing Part/cipant(s)

1 2, 4/82 Dorothea Larson Defendant Fitterer

(T. 5/3/82 p. 106)

2 2/ 5/82 Ronald Sterry Jerry Sheldon Peterson

(T. 5/3 82 p. 73)

8 2/12/82 Ronald Sterry Jerry Sheldon Peterson

(T. 5/3 82 p. 74)

4 2,15 82 Ronald Sterry Jerry Sheldon Peterson and

Defendant Fitterer (T.

5 3, 82 p. 74)

The transcripts, as originally delivered to counsel as part of

disclosure, were of varying lengths. The transcripts on 8 x 11

paper contained the following number of pages: Tape 1, 5

pages; Tape 2, 77 pages; Tape 3, 46 pages and Tape 4, 46

pages.

Agent Parks, in the case of Dorothea Larson (Tape 1), was

present during the recording of the telephone conversation,

actually recorded the conversation himself, directed her as to

the areas of inquiry to pursue and formulated some of the

specific questions he wanted her to puse to Petitioner Fitterer

(T. 5/3/82 p. 106-9). In the case of Tapes 2, 3 and 4, Agent

Parks listened to the conversations by transmission as each

occurred and was recorded. He directed the informant Sterry

as to what to discuss on the tapes and told Sterry how to use

the equipment (transmitter-recorder) (T. 5 3/82 pp. 86, 115,

89, 88).

Agent Parks knew that he had no permission from Peti-

tioner’s or from Peterson's known counsel to tape and also

acknowledged that there had been no waiver of counsel or of

the right to remain silent (T. 53/82 pp. 93-4, 101-2). Addi-

tionally, Agent Parks conceded that his use of Sterry for

taping obtained more admissions than he could have obtained

directly (T. 5/3/82 pp. 96, 104).

From these recordings, the government obtained things it

did not know (T. 5 3 82 p. 111), corroborated matters and a

person of which it was doubtful. Sterry’s proclivities to and

involvements in assorted areas of criminal endeavor (T. Vol.

IV p. 48 (arson) 47 (perjury) ) created reservations. Addition-

ally, his knowledge, if not participation, in drugs, police cor-

ruption, other crimes with insurance adjusters, gun running

and interstate transportation of stolen property dictated

against reliance (T. Vol. IV pp. 55-6). The government also

obtained access to Petitioner's wide ranging conversations

concerning every aspect of the case from their participation in

past acts to their interpretation of the legal advice they were

receiving.

The information gathered from the tapes directly and in-

directly aided the government in presenting the evidence used

to convict the Petitioner of seven counts of mail fraud 18

U.S.C. § 1341 (1976), one count of transportation of property

obtained by fraud 18 U.S.C, § 2314 (1976), one count of ob-

struction of a criminal investigation 18 U.S.C. § 1510 (1976)

and one count of conspiracy 18 U.S.C. § 371 (1976).

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

The Eighth Circuit's decision allows the government to vio-

late the attorney-client relationship with impunity and without

the constraints of the exception created by Hoffa v. United

States, 385 U.S. 298, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Chief Judge Weinstein expressed his reservations concern-

ing the breadth of and the propriety of the Second Circuit's

opinion United States v. Vasquez, 675 F.2d 16 (2nd Cir. 1982) :

Despite the strong reasons for invoking DR 7-

104(A)(1) as the basis for exclusion, reluctantly the

court must conclude that it would be inappropriate for a

trial court in this circuit to do so at this time. The second

Circuit Court of Appeals has apparently recently denied

that power to the trial judges. LU’nited States v. Jamil, 546

F. Supp. 646, 660 (D.C.E.D. NY 1982)

The societal concerns and philosophical underpinnings of

the professional standard which were the basis for Judge

Weinstein’s reservations were explicated by him.

“Canon 7 and Disciplinary Rule 7-104(A)(1) of the

ABA Code of Professional Responsibility prohibit an at-

torney from communicating with a person of adverse

interest who is represented by counsel. The rule is a mod-

ern version of Hoffman's Resolution XLIII which had

been followed from time immemorial by the Anglo-

American bar, that “I will never enter any conversation

with my opponent's client relative to his claim or defense

except with the consent and in the presence of his coun-

sel."" D, Hoffman, A Course of Legal Study IJ, at 751 (2d

ed. 1836). The principle as it now appears in DR 7-

104(A)(1) forbids a lawyer during the course of his

representation of a client to:

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.

The current American Bar Association proposed revision

of the Code of Ethics retains the principle virtually un-

changed. See, ABA Commission on Evaluation of Profes-

7

sional Standards, Final Draft of Model Rules of Profes-

sional Conduct, Proposed Rule 4.2 with comments and

notes (Oct. 1981).

This salutary rule is fundamental to the effective func-

tioning of the legal profession, There could be no reliable

attorney-client relationship without an ethical shield

against improper approaches to opposing counsel's client.

ABA Comm. on Professional Ethics, Opinions, No. 108

(1934), The ethical prohibition protects an adverse party

from the imbalance of skill and knowledge between lay-

men and lawyers, Massiah v. United States, 377 U.S. 201,

211, 84 S.Ct. 1199, 1205, 12 L.Ed.2d 246 (1964) (dissent) ;

Kurlantzik, The Prohibition on Communication with an

Adverse Party, 51 Conn.B.J. 136, 188-45 (1977). So vital

is this standard to ethical practice that an attorney must

guard against even an inadvertent or negligent bypass of

opposing counsel, American Bar Foundation, Annotated

Code of Professional Responsibility, Communicating With

One of Adverse Interest, EC 7-18 and DR 7-104 Comment,

331, 332-33 (1979)." United States v. Jamil, supra, 546

F.Supp. at 651-2

The word “Adverse” in the heading of the disciplinary rule

should be ignored as a limitation on the application of the rule,

Clark & Wolfram, “Professional Responsibility: Issues for

Minnesota Attorneys” Minnesota State Bar Association Con-

tinuing Legal Education 726-27 (1976),

That DR 7-104 is a fundamental tenet of legal ethics is clear

from the varied sources which have adopted its requirement.

See A.B.A. Standards, The Prosecution Function $ 3.6(d),

Even the Department of Justice recognizes the need to advise

the grand jury ‘arget of his rights and of the fact that he is, in

fact a target. 9 United States Attorney's Manual, ch. 11.250

(1979).

The government has also stated that the practice of ques-

tioning represented targets violates its policies. Ricks v.

United States, 334 F.2d 964, 970 n. 18 (D.C. Cir. 1964) ; Lee v.

United States, 322 F.2d 770, 774 (5th Cir. 1973).

CONCLUSION

For these reasons the requested writ of certiorari should

issue to review the judgment and opinion of the Eighth Cir-

cuit. f

Dated: August 16, 1983

Respectfully submitted,

MICHAEL F. FETSCH

Attorney at Law

838 Minnesota Building

St. Paul, Minnesota 55101

Telephone: (612) 227-3236

Attorney for Petitioner

ie

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APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 82-2338

UNITED STATES OF AMERICA,

Appellee,

Vv.

HARLAND G. “SKIP” FITTERER,

Appellant.

APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE DISTRICT OF MINNESOTA

Submitted: June 17, 1983

Filed: June 39, 1983

Before HEANEY, Circuit Judge, FLOYD R. GIBSON and

ROSENN,* Senior Circuit Judges.

FLOYD R. GIBSON, Senior Circuit Judge.

Harland Fitterer appeals his convictions on seven counts of

mail fraud in violation of 18 U.S.C. § 1341 (1976), one count

of transportation of property taken by fraud in violation of 18

U.S.C. § 2314 (1976), one count of obstruction of a criminal

investigation in violation of 18 U.S.C. § 1510 (1976), and one

count of conspiracy in violation of 18 U.S.C. § 871 (1976). His

* The Honorable Max Rosenn, Senior Circuit Judge for the United

States Court of Appeals for the Third Circuit, sitting by designation.

A-2

convictions came after a jury trial. The district court sen.

tenced Fitterer to concurrent four-year sentences on all counts

except the obstruction of a criminal investigation count, for

which he received a two-year consecutive sentence, and one of

the mail fraud counts, for which he received a five-year

suspended sentence. We affirm the judgment of the district

court.'

I, Facts

Fitterer’s convictions stem from an insurance fraud scheme.

The evidence at trial showed that Fitterer was the manager of

the Minneapolis branch of Milbank Mutual Insurance Com-

pany and had the authority to investigate, evaluate, and settle

claims brought against the insurance company. Fitterer and

two accomplices, Ronald Sterry and Jerry Peterson, developed

a plan for filing fraudulent claims with the insurance com-

pany. In one of the schemes, Sterry insured a pickup truck and

camper he did not own, and then reported the items as stolen.

The insurance company paid more than $13,000 on the claim.

In another fraud, Sterry reported that he had hit a Corvette,

which was in fact owned by his accomplice Peterson, and filed

a claim for damages in connection with the purported accident.

The insurance company paid more than $6,000 on this claim.

Fitterer was the insurance representative who signed all the

checks in payment of these claims. A third scheme involved

Peterson and another co-defendant, with the co-defendant

fraudulently reporting that a boat was stolen. The insurance

company paid more than $9,000 on this claim. A fourth fraud

was perpetrated when another co-defendant made a claim for

a home that was purportedly destroyed by fire; in fact it had

been torn down before the fire supposedly occurred. The claim

‘The Honorable Paul A. Magnuson, United States District Judge,

District of Minnesota.

A-3

check was made out to Ronald Sterry’s father-in-law, and it

too was signed by Fitterer. The four schemes took place be-

tween August 1980 and August 1981.

Federal authorities began their investigation into the case

in October 1981. Sometime before January 1, 1982, a federal

grand jury began an investigation. In January, Fitterer asked

a person who was being questioned by the investigators, Jerry

McGraw, to tell investigators that McGraw had made an esti-

mate on the house that the defendants claimed had burned

down. Fitterer asked McGraw to “act hazy” about the house

and its location. Also in January, federal authorities obtained

help in the investigation from one of Fitterer’s accomplices,

Ronald Sterry. Sterry agreed to wear a tape recorder and a

transmitter to a meeting with Fitterer and thereby helped

obtain incriminating evidence, Sterry’s meeting with Fitterer

took place two weeks after Fitterer had appeared before the

grand jury.

Fitterer and the other defendants were indicted in April.

The mail fraud counts were based on the fraudulent schemes

and the obstruction of a crimina! investigation count was

based on Fitterer telling McGraw to “act hazy” if investi-

gators asked McGraw about the house that was supposedly

burned down. Fitterer was tried in August and sentenced in

October.

II. Obstruction of a Criminal Investigation

Fitterer’s first argument is that the jury was improperly

instructed on the charge of obstructing a criminal investiga-

tion. 18 U.S.C. § 1510(a).* A person violates that section if he

2An amendment to § 1519 did not hecome effective until October

14, 1982, two months after Fitterer’s trial. Vietim and Witness

Protection Act, Pub, L. No, 97-291 8§ 4(e), 9(a), 96 Stat. 1248; 18

U.S.C.A. § 1510 note (West Supp. 1983). Therefore, the amendment

has no effect on our analysis.

A-4

“willfully endeavors by means of bribery, misrepresentation,

intimidation, or force or threats thereof to obstruct, delay, or

prevent the communication of information relating to a viola-

tion of any criminal statute of the United States by any person

to a criminal investigator ...."’ (Emphasis added.) Fitterer

argues that he can be convicted under § 1510(a) only if he

used “bribery, misrepresentation, intimidation or force or

threats thereot’’ to obstruct an investigation. Fitterer did not

use any of the proscribed acts upon McGraw to try to induce

him to mislead investigators. Fitterer objects to the instruc-

tion which allowed the jury to find a violatio: even though

Fitterer did not use the specifically proscribed acts upon

McGraw. The district court told the jury: “A misrepresenta-

tion also occurs whenever an individual induces or attempts to

induce another person to make a material misrepresentation

to a criminal investigator. In this instance, the defendant need

not make any misrepresentation himself.” The issue is whether

Fitterer can be convicted for a violation of § 1510(a) even if

he did not make a misrepresentation himself.

Fitterer relies primarily on the language of the statute, Ex-

cising portions not at issue, the statute makes it a crime to

“endeavor [] by means of ... misrepresentation . . . to ob-

struct... the communication of information... by any person

to a criminal investigator.” (Emphasis added.) According to

Fitterer, the statute allows a person to obstruct the communi-

cation of information as long as one does not do so by means of

misrepresentation or one of the other proscribed methods,

We do not read the statute as narrowly as Fitterer. We think

the statute can be fairly read to prohibit obstructions to the

communication of information which are effectuated by means

of misrepresentation, and is not limited to situations where

the defendant used a misrepresentation to induce a third party

to lie.

A-5

The legislative history shows that Congress intended to out-

law Fitterer’s conduct. The House Judiciary Committee report

shows that the main purpose of § 1510 is to protect potential

witnesses from threats and intimidation by subjects of crim-

inal investigations. H.R. Rep. No, 658, 90th Cong., Ist Sess.,

reprinted in 1967 U.S. Code Cong. & Ad, News 1760, 1761-62,

However, the committee report specifically dealt with the

meaning of the term “misrepresentation.” The report states:

It is our intention that the actual procurement by a party

of another party's misreprescitation or silence to a Fed-

eral investigator would be covercd even though such pro-

curement was not achieved by any misrepresentation, At

the same time, it is also our intention that procurement

of a witness’ communication or silence to a Federal inves-

tigator by means of a misrepresentation on the part of

the procurer is also covered under the act,

Id, at 1762. (Emphasis added.) But sce Additional Views of

Basil L. Whitener and William L. Hungate, id. at 1765. (“The

misrepresentation of facts by individuals contacted by law

enforcement officers is an entirely different matter from brib-

ery, intimidation, or the use of force to obstruct criminal

investigations.) Our view of the meaning of the word “mis-

representation” in $ 1510 is suared by the only other federal

appeals court to have considered the issue. United States v. St.

Clair, 552 F.2d 57, 58-59 (2d Cir.), cert. denied, 433 U.S, 909

(1977).

We believe that resort to the leyislative history to clarify

the meaning of § 1510 is appropriate. We are aware of the

general rule that a penal statute must be strictly construed so

that no one can be subjected to a penalty unless a fair warning

has been given in words which plainly impose the penalty,

United States v, Campos-Serrano, 404 U.S, 298, 297 (1971);

A-6

W. LaFave and A. Scott, Criminal Law § 10, at 72 (1972).

Likewise, ‘“‘when choice has to be made between two readings

of what conduct Congress has made a crime, it is appropriate,

before we choose the harsher alternative, to require that Con-

gress should have spoken in language that is clear and defi-

nite.” United States v. Univevsal C.l.T. Credit Corp., 344 USS.

218, 221-22 (1952). However, the rule of strict construction of

penal statutes cannot provide a substitute for the legislative

history. United States v. Standard Oil Co., 384 U.S, 224, 225

(1966). The rule does not require that a statute be given the

narrowest meaning. It is sufficient if words are given their

fair meaning in accord with the evident intent of Congress.

United States v. Cook, 384 U.S. 257, 262 (1966); United States

v. Bass, 404 U.S, 336, 351 (1971). Furthermore, the need for

strict construction is not as great when the conduct is morally

bad. W. LaFave and A. Scott, Criminal Law § 10, at 73. When

the conduct is morally bad, the defendant is more likely to have

fair warning of what is prescribed; no one would be surprised

to learn that soliciting misrepresentations by a potential wit-

ness is illegal. St. Clair, 552 F.2d at 59.

Section 1510 can, on its face, be fairly read to prohibit ask-

ing someone to make a misrepresentation to a criminal investi-

gator, and the legislative history makes the Congressional in-

tent completely clear on this point. Therefore we share the

view of the Second Circuit that § 1510 prohibits a procurement

of a third party’s misrepresentation to a criminal investigator.

Ill. Other Crimes Evidence

Fitterer’s second argument is that he was prejudiced by

testimony about an insurance fraud scheme of his which was

not mentioned in the indictment. During the government's

direct examination of one of the co-indictees, Jerry Peterson,

A-7

the prosecutor asked when Peterson and Fitterer were first

involved in a fraudulent insurance claim. Peterson answered

that in 1979 or 1980 he and [itterer split insurance money

after falsely reporting that a pickup truck was stolen. When

the prosecutor started asking about a second scheme, defense

counsel objected. After a conference in chambers the district

court observed that the objection was not tiimely, stated that it

would have found the testimony admissible as evidence of

other crimes to show motive, intent, eic., under Fed, R. Evid.

404(b) and that the probative value of the testimony was not

outweighed by the danger of unfair prejudice. See Fed. R.

Evid, 403, The court therefore denied Fitterer’s motion for a

mistrial. Nevertheless, the court was willing to grant a limit-

ing instruction to the jury to disregard the question and

answer.

We will not reverse Fitterer’s conviction on this issue be-

cause the testimony to which Fitterer objects was admissible.

The evider ce of the earlier insurance fraud scheme was rele-

vant to show Fitterer’s intent under Fed. R, Evid. 404(b). The

probative value is high because the testimony came from an

accomplice and it outweighed any unfair prejudice. We have

allowed the admission of testimony of other crimes in similar

circumstances. We stated in U'./te / States v. Calvert, 523 F.2d

895, 908 (8th Cir. 1975), cert. denied, 424 U.S. 911 (1976):

“We have previously held in mail fraud cases that evidence of

other offenses by the defendant is admissible to show criminal

intent where the other offenses are similar to and not too

remote in time from the offense charged.” Likewise, in United

States v. Legendre, 657 F.2d 288, 240, 242 (8th Cir.), cert.

denied, 454 U.S. 1037 (1981), we held that the government

A-8

could properly ask the witness how many previous drug deals

he had made with the defendant."

Fitterer appears also to be arguing that even if the testi-

mony was admissible, there was prosecutorial misconduct in

failing to give notice to defense counsel of the prosecutor's in-

tent to introduce other crimes evidence. Fitterer relies on

United States v. Baum, 482 F.2d 1825 (2nd Cir. 1973), which

Fitterer argues supports the proposition that introduction of

other crimes evidence without notice to the court or defense

counsel deprives the defendant of a fair trial. Fitterer mis-

reads Baum. The misconduct the Second Circuit found in

Baum was the refusal of the prosecutor to even identify a

prospective witness who testified about prior crimes. Jd. at

1331, Furthermore, the facts of this case do not support Fit-

terer’s argument. At a pretrial conference the prosecutor told

the court and defense counsel that Peterson would be a witness

and he might testify about the insurance fraud with the

pickup truck that took place in 1979 or 1980. Therefore, the

other crimes testimony provides no basis for a reversal.

IV. Right to Counsel

Fitterer’s last argument is that the government interfered

with his right to counsel by having one of Fitterer’s accom-

plices, Ronald Sterry, wired before a meeting with Fitterer.

Fitterer argues this violated his right to counsel and also vio-

lated the Minnesota Code of Professional Responsibility be-

cause he had retained counsel, in connection with his grand

’ When a court admits evidence of other crimes, it should give an

instruction, if requested, that the evidence should be considered for

a limited purpose other than proving the character of the accused,

In the instant case there was not a timely objection, but once an

objection was made the district court instructed the jury to dis-

regard the evidence. The court gave a more restrictive instruction

than would ordinarily be required for Rule 404(b) evidence.

A-9

jury appearance, before the conversation with Sterry occurred.

He asks for reversal of his couviction and dismissal of the

indictment based on the alleyed violations.

At the time of the conversation with Sterry, Fitterer had

not been indicted nor formally charged in any other way. He

was not in the custody of authorities at the time of his con-

versation with Sterry. Filterer clearly did not have a sixth

amendment right to counsel! Lecause the sixth amendment

right to counsel does not attach until adversarial judicial pro-

ceedings have been initiated. A/rby v. [llinois, 496 U.S. 682,

688-89 (1972); United States v. Surridge, 687 F.2d 250, 253

(8th Cir.), cert. denied, -—- U.S. ——, 74 L.Ed.2d 614 (1982),

Likewise, Fitterer did not have a fifth amendment rignt to

counsel, The Supreme Court has re ogniced that a person has

a right to counsel during custodial interrogation as part of his

fifth amendment right not to be “compelled... to be a witness

against himself.” Jf’rcnda v. Ar sona, 884 U.S. 436, 467-70

(1966); Edwards v. Arizona, 451 U.S. 477, 481-82 (1981).

Fitterer was not in custody at the time of the conversation

with Sterry and therefore the fift.. amendment right to coun-

sel is not implicated.

Fitterer also argues that by having Sterry record and trans-

mit the conversation, the prosecutors violated Disciplinary

Rule 7-104 of the Minnesco.a Code of Professional Responsi-

bility which reads:

Communicating With One of Adverse Interest

(4. Jsuring the course of his representation of a client

a lawyer shall not:

+The sixth amendment reads in pertinent part: “(T]he accused shall

enjoy the right... to have the Assistance of Counsel for his

defence.”

A-10

(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 un-

less he has the prior consent of the lawyer representing

such other party or is authorized by law to do so,

Fitterer argues that because he had retained counsel for the

grand jury investigation the prosecutor could cornmunicate

with him only through his attorney, and not through Sterry.

We reject Fitterer’s contention. Under his view, once the

subject of an investigation retains counsel, investigators could

no longer direct informants to gather more evidence. We do

not believe that DR 7-104(A)(1) of the Code of Professional

Responsibility was intended to stymie undercover investiga-

tions when the subject retains counsel. Our view is shared by

all three circuits which have considered the effect of DR 7-

104(A)(1) in situations like Fitterer’s. United States v. Vas«

quez, 675 F.2d 16, 17 (2nd Cir, 1982); United States v. Kenny,

645 F.2d 1323, 1339 (9th Cir.), cert. denis d, 452 U.S. 920, 454

U.S. 828 (1981); United States v. Lemonakis, 485 F.2d 941,

955-56 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974). We

find no ethical violation on the part of the prosecutors,

Having considered the issues raised by Fitterer on his ap-

peal, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. 8S. COURT OF APPEALS,

EIGHTH CIRCUIT,