## Facts

- Lopez, Escobedo, and Olivas were indicted on federal narcotics charges, including distribution and conspiracy under 21 U.S.C. §§ 841(a)(1), 846, and aiding and abetting under 18 U.S.C. § 2.
- Lopez retained defense counsel Barry Tarlow, who believed Lopez had a viable defense and would not participate in cooperation-based plea discussions.
- The prosecutor suspected Lopez wanted to negotiate and that defense counsel was obstructing plea discussions, allegedly at the direction of a drug organization.
- Without notifying or involving Lopez’s counsel, the prosecutor arranged an in camera, ex parte proceeding before a magistrate judge where Lopez signed a written waiver to meet with the prosecutor without counsel present.
- The prosecutor then met with Lopez multiple times outside counsel’s presence and sought cooperation, including names of others involved in the alleged drug operation.
- After the meetings were revealed, Lopez’s counsel concluded the government’s conduct created a conflict and withdrew.
- Lopez moved to dismiss the indictment, alleging violations of the Sixth Amendment right to counsel and the ethical no-contact rule; the prosecutor relied on an internal Department of Justice policy (the Thornburgh Memorandum) as justification.

## Issues

1. Whether a federal prosecutor’s ex parte communications with an indicted, represented defendant—based on an internal Department of Justice policy—violated the defendant’s Sixth Amendment right to counsel.
2. Whether the prosecutor’s conduct violated the applicable professional no-contact rule binding on attorneys.
3. Whether dismissal of the indictment under the court’s supervisory powers was an appropriate remedy, and if so, whether it should be with or without prejudice.

## Decision

- The court found the prosecutor’s uncounseled, ex parte interviews of an indicted, represented defendant violated the Sixth Amendment.
- The court found the conduct also violated the ethical no-contact rule applicable to attorneys practicing before the court.
- The court rejected the argument that an internal executive-branch memorandum could exempt federal prosecutors from state bar ethical obligations.
- Exercising supervisory authority, the court dismissed the indictment without prejudice, permitting the government to seek reindictment.

## Legal Principles

- After indictment, the Sixth Amendment protects an accused’s right to deal with the government through counsel as an intermediary in matters related to the prosecution.
- A prosecutor’s intentional, ex parte communications with a represented defendant about the subject of the representation, without notice to or consent from defense counsel, can violate the Sixth Amendment.
- The ethical no-contact rule generally bars an attorney from communicating about the subject of the representation with a person known to be represented, absent consent of that person’s counsel or lawful authorization.
- Internal executive-branch policies do not, by themselves, displace attorney ethical duties or limit a federal court’s authority to enforce ethical norms in proceedings before it.
- Federal courts may use supervisory powers to deter prosecutorial misconduct and protect the integrity of criminal proceedings; dismissal is an extraordinary remedy and may be ordered without prejudice where appropriate.

## Conclusion

The court held that a prosecutor’s secret, uncounseled contacts with an indicted defendant who was represented by counsel violated both the Sixth Amendment and the no-contact ethical rule, and it dismissed the indictment without prejudice under its supervisory authority.


United States v. Lopez, 765 F. Supp. 1433 (N.D. Cal. 1991)