## Facts

- Federal authorities investigated alleged accounting and corporate fraud at Rite Aid involving former CEO Martin L. Grass and former officer/director Franklin C. Brown.
- Grass resigned on October 18, 1999; Rite Aid began an internal investigation, followed by an SEC civil investigation and a federal criminal investigation.
- Before any indictment, both Grass and Brown retained criminal defense counsel in connection with the investigation.
- Timothy Noonan, a former Rite Aid president, cooperated with the government and agreed to make surreptitious recordings of conversations with Brown (multiple times) and Grass (once).
- Assistant U.S. Attorney Kim Douglas Daniel authorized the recordings and knew Grass and Brown were represented by counsel.
- FBI Agent George Delaney provided Noonan with a fabricated “agenda letter” purportedly from the prosecutor to help steer questioning; it was not actually sent to Noonan’s attorney.
- A federal grand jury later returned a 37-count indictment on June 21, 2002, alleging conspiracy to defraud Rite Aid and conspiracy to obstruct justice by impeding investigations.
- Grass and Brown moved to suppress the recordings and derivative evidence, asserting violations of Pennsylvania Rules of Professional Conduct 4.2 and 8.4(a).

## Issues

1. Whether the government’s use of a cooperating witness to secretly record pre-indictment, non-custodial conversations with represented targets violated Pennsylvania Rule of Professional Conduct 4.2 (and Rule 8.4(a)).
2. Whether the “authorized by law” exception to Rule 4.2 permits a federal prosecutor to direct or approve such investigative contacts in a pre-indictment setting.
3. If an ethical violation occurred, whether suppression is an available remedy in a federal criminal prosecution.

## Decision

- The court denied the motion to suppress.
- The court held the pre-indictment, non-custodial informant recordings fell within Rule 4.2’s “authorized by law” exception as part of lawful federal investigative practice.
- The court concluded that, even assuming a technical ethics violation, suppression was not an appropriate remedy absent a constitutional, statutory, or procedural violation warranting exclusion.

## Legal Principles

- Rule 4.2’s “authorized by law” exception generally allows federal prosecutors to employ informants to conduct surreptitious, pre-indictment, non-custodial investigative contacts with represented persons.
- Pre-indictment contacts of this kind are assessed in light of accepted federal investigative techniques; state ethics rules cannot be applied to negate otherwise lawful federal investigative authority.
- The Sixth Amendment right to counsel attaches upon initiation of formal adversarial criminal proceedings; pre-indictment, voluntary, non-custodial conversations with an informant do not trigger Sixth Amendment suppression.
- Suppression is not the ordinary remedy for violations of attorney professional-conduct rules; enforcement is typically through disciplinary processes unless exclusion is necessary to remedy a constitutional or comparable legal violation.

## Conclusion

The court refused to suppress recordings made by a cooperating witness during pre-indictment, non-custodial conversations with targets known to be represented by counsel, ruling the contacts were “authorized by law” and that ethical-rule violations, without more, did not justify exclusion of the evidence in the federal prosecution.


United States v. Grass, 239 F. Supp. 2d 535 (M.D. Pa. 2003)