Appeal from a pre-trial order of the United States District Court for the Eastern District of New York, Weinstein, Chief Judge, suppressing and excluding from evidence a tape recording of a conversation in which appellee participated. Reversed.
TIMBERS, KEARSE and PIERCE, Circuit Judges.
The government appeals from a pre-trial order of the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, entered July 2, 1982 and reported at 546 F. Supp. 646 (E.D.N.Y. 1982), suppressing and excluding from evidence a tape recording of a conversation in which the defendant-appellee, Jamil participated. The issues presented on appeal are: (1) whether the district judge abused his discretion in excluding this evidence under Rule 403 of the Federal Rules of Evidence; and (2) whether Disciplinary Rule 7-104(A)(1) of the Code of Professional Responsibility was violated by the taping of the conversation or would be violated by the introduction of the tape at trial, and thus might provide grounds for exclusion of the tape.*fn1 For the reasons set forth below, we hold that pre-trial exclusion of the evidence under Rule 403 of the Federal Rules of Evidence was an abuse of discretion and that DR 7-104(A)1) was not violated by the taping of the conversation. We, therefore, reverse the order of exclusion.
Defendant-appellee Benjamin Jamil is the president, owner, and operator of Communication Control Systems, Inc. (CCS). Appellee does business through his main office in Manhattan, four other offices in the United States and one office in London. CCS is engaged in the business of selling counter-surveillance and security devices, including spectrum analyzers, domain reflectometers, and night vision devices. The export of some of these divices requires licensing under either the Export Administration Act, 50 U.S.C. App. § 2401-2420 (Supp. III 1979), or the Arms Export Control Act, 22 U.S.C. § 2778 (1976, Supp. III 1979, and Supp. V 1981).
On March 7, 1979, an export shipment of Jamil's merchandise initially bound for London and eventually for Beirut, was seized by the United States Customs Service. The following day, Special Agents of the United States Customs Service, Michael Mulcahey and Steven Rogers, executed a search warrant at Jamil's place of business in Manhattan. Both Jamil and Lawrence Herrmann, an associate of Barry Slotnick, Jamil's retained counsel, were present when the warrant was executed.
Several days later, an Assistant United States Attorney (who was assigned to the investigation of Jamil's activities) met with Slotnick, Herrmann, and Agent Mulcahey. The probable prosecution of Jamil was discussed. Thus, it is clear that in or about March, 1979, the government agents were aware that Jamil had retained counsel to represent him in connection with the investigation.
Shortly thereafter, Joseph Sayegh, the alleged middleman in the sale of the subject merchandise from CCS to one Rafaat Hayek, telephoned Special Agent Mulcahey in an apparent effort to have the seized merchandise released. On or about March 22, 1979, John Sayegh, the son of Joseph Sayegh, telephoned Mulcahey and informed him that Joseph Sayegh had arranged to meet with Jamil at a hotel near John F. Kennedy Airport to talk about the seizure and additional future sales. Joseph Sayegh, through his son, John, who was acting as interpreter, then volunteered to cooperate with the government and to wear a recording device to the meeting. After consulting with another agent in his office, Special Agent Mulcahey agreed to supply the device, and Mulcahey placed it on Joseph Sayegh*fn2 on the morining of March 24, 1979.
Later that day, the meeting was held at the International Hotel near Kennedy Airport. As it happened, Slotnick attended the meeting along with Jamil, his client; also present were Joseph and John Sayegh. The meeting continued for approximately 20 minutes and was recorded in its entirety on the device worn by Joseph Sayegh. The conversation focused mainly on the seized shipment and on future business dealings between Jamil and Sayegh. The statements pertaining to the seizure of the merchandise and which are the subject of the pre-trial ruling herein are set forth in the margin.*fn3
Two years and nine months later, on December 23, 1981, a five-count indictment was filed charging Jamil with conspiring to manufacture and ship devices in interstate and foreign commerce in violation of 18 U.S.C §§ 2512(1)(a), and (b), and (c) (1976), and other violations of the United States export laws, 50 U.S.C. App. § 2401-2420 and the Arms Export Control Act, 22 U.S.C. § 2778. On February 25, 1982, a superseding eight-count indictment was filed charging Jamil with three additional violations of the aforesaid licensing laws.
On or about June 7, 1982, appellee made a motion to dismiss the indictment on grounds that the government's conduct violated his fifth and sixth amendment rights. A hearing on the motion was held on June 7, 1982, at which time the district court indicated that "the motion to suppress [the tape recording] was implied in the motion to dismiss as lesser included relief;" the court then granted the motion to suppress from the bench based on the court's supervisory powers rather than on constitutional grounds.
Three weeks later, on July 2, 1982, the district court entered a 42 page written memorandum and order. In the order, the court adhered to its prior bench ruling to suppress the evidence, but in doing so did not rely on its "supervisory power" as it had earlier done. Instead, the court excluded the tape recording under Rule 403 of the Federal Rules of Evidence. The court ruled: [t]he slight probative force of the recording, its cumulative nature, the time required to deal with it in court, and its probable interjection of prejudice argue for exclusion under Rule 403 of the Federal Rules of Evidence. Difficulties in redaction, inhibition of trial counsel, and strong ethical doubts about the propriety of allowing the recording in evidence, even if not sufficient in themselves to warrant exclusion, support the Rule 403 result.
546 F. Supp. at 661. Although the district court's decision was ultimately based on Rule 403, most of the opinion addressed the ethical considerations raised by DR 7-104(a)(1). The court concluded, however, that United States v. Vasquez, 675 F.2d 16 (2d Cir. 1982) was controlling and apparently prohibited a trial court from invoking DR 7-104(A)(1) as the basis for exclusion in a situation such as that presented herein. 546 F. Supp. at 660.
The government appeals pursuant to 18 U.S.C. § 3731 (1976). On July 14, 1982, the district court stayed proceedings ...