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United States v. Hammad

United States Court of Appeals for the Second Circuit
858 F.2d 834 (2d. Cir. 1988)


Facts

The New York State Department of Social Services audited brothers Taiseer and Eid Hammad (respondents), owners of the Hammad Department Store, for bilking Medicaid out of $400,0000 in reimbursements claimed for special, orthopedic footwear while actually selling ordinary, non-therapeutic shoes. The Hammads challenged the determination by submitting false invoices purportedly from Wallace Goldstein, a shoe supplier. Meanwhile, the store caught fire under suspicious circumstances. When Goldstein told the prosecutor that the invoices the Hammads submitted were false, investigators suspected arson, intended to conceal the fraud by destroying actual sales records. Goldstein agreed to cooperate, and falsely told the Hammads he had been subpoenaed by the grand jury to testify and produce actual sales records for comparison. Taiseer did not deny the fraud and urged Goldstein to conceal it. A few days later, investigators recorded a meeting where Hammad strategized how to avoid compliance after Goldstein showed him a sham subpoena. Before trial, Taiseer asked the court to suppress the recordings on the ground that the prosecutor violated Rule 4.2, which prohibits a lawyer from communicating with a party represented by counsel (like ABA Code of Professional Responsibility DR 7-104(A)(1)). Taiseer claimed the prosecutor had communicated directly with him, using Goldstein as his alter-ego, after the prosecutor knew Taiseer had a lawyer. The prosecution argued that the rule either did not apply to criminal investigations or applied only after indictment. The trial judge found the prosecutor violated the rule and suppressed the recordings. The prosecution appealed.

Rule of Law

Issue

Holding and Reasoning (Kaufman, J.)

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