United States v. Grass

Martin Grass and Franklin Brown (defendants) were former officers of the Rite Aid Corporation. The Federal Bureau of Investigation (FBI) and the United States Attorney’s Office for the Middle District of Pennsylvania (plaintiff) began investigating Brown and Grass for conspiracy to defraud Rite Aid. FBI Agent George Delaney and Assistant United States Attorney (AUSA) Kim Douglas Daniel headed the investigation. On March 9, 2001, Rite Aid’s former president Timothy Noonan met with AUSA Daniel and Agent Delaney. Brown called Noonan the next day, asking to meet. Noonan told Agent Delaney about the meeting and agreed to secretly record it. At the meeting, Brown stated that Grass had hired a criminal attorney. Before an April 4 interview between Brown and the government, Brown’s attorney, Herbert Stern, received an agenda covering topics of discussion. Brown ultimately declined to interview. For Noonan’s next meeting with Brown, Agent Delaney gave Noonan an agenda letter signed by AUSA Daniel and addressed to Noonan’s attorney. The fake letter was intended to guide discussion. Noonan met with Brown several times and Grass once before his final meeting with Brown on May 21. AUSA Daniel authorized Noonan to secretly record each meeting and knew both Grass and Brown were represented at the time the recordings were made. Neither Grass nor Brown had been indicted at the time of the recordings. Grass and Brown filed a motion to suppress the tapes of their conversations with Noonan. They argued that AUSA Daniel violated Pennsylvania Rule of Professional Conduct 4.2 by using Noonan to communicate with Grass and Brown, who he knew were represented by counsel. The district court denied the motion.