Sixth Amendment Implications of Law Enforcement Contact with Corporate Executives ( 1994 )

Sixth Amendment Implications of Law Enforcement
Contact with Corporate Executives
Law enforcem ent contacts with high-ranking executives o f a corporation without the presence o f coun­
sel after crim inal charges have been filed against the corporation violate the corporation’s Sixth
A m endm ent right to counsel
No Sixth Am endm ent violation occurs when such law enforcem ent contacts with high-ranking ex ecu ­
tives occur while civil penalty proceedings are in progress against the corporation
A pril 15, 1994
M e m o r a n d u m O p in io n f o r t h e
P r in c ip a l A s s o c ia t e D e p u t y A t t o r n e y G e n e r a l
You have asked us to consider the Sixth Amendment implications o f law
enforcement contacts with high-ranking corporate executives while criminal or
civil penalty proceedings are pending against the corporation that em ploys the ex­
ecutives.1 We conclude that such contacts outside the presence of counsel violate
the Sixth Amendment when criminal charges have been filed, but that law en­
forcement contacts of this nature do not contravene the Sixth Amendment when
civil penalty proceedings are in progress.
I. The Sixth Am endm ent as a Restriction on Interrogation
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the ac­
cused shall enjoy the right . . . to have the assistance of counsel for his defence.”
U.S. Const, amend. VI. This constitutional safeguard comes into play concom i­
tantly with the “first formal charging proceeding,”2 M oran v. Burbine, 475 U.S.
412, 428 (1986), and encompasses the right to the assistance of counsel during all
forms of interrogation. See, e.g., B rew er v. W illiams, 430 U.S. 387, 400-01 (1977)
1 M em orandum for W alter Dellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Irvin B.
N athan, Principal A ssociate D eputy A ttorney G eneral (Feb 24, 1994) We also received and considered
com m ents contained in a M em orandum for M ary Jo W hite, U nited States A ttorney, Southern D istrict o f N ew
York, from D avid B Fein, D eputy Chief, C rim inal D ivision, Southern D istrict o f New York (M ar. 11,
1994).
2 In 1980, w e explained that, “[gjenerally, no infringem ent o f the Sixth A m endm ent can occur prior to the
initiation o f form al judicial proceedings " E thical R estraints o j the AB A C ode o j P rofessional R espo n sib ility
on F ederal C rim inal Investigations, 4B Op. O L.C 576, 581 (1980) A lthough the Suprem e C ourt had
previously h eld that the Sixth A m endm ent right to counsel could attach prior to indictm ent, we noted that the
C o u rt’s d ecisio n in that case — Escobedo v Illinois, 378 U S 478 (1964) — “has been lim ited to its facts ”
4B O p O .L C at 581 n 10 (citing Johnson v N ew J ersev. 384 U S. 7 19, 733-34 (1966), and K trbv v. Illinois,
406 U S. 682, 6 9 0 (1 9 7 2 )).
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O pinions o f the O ffice o f L egal C ounsel
(confession elicited by so-called Christian burial speech); M assiah v. U nited
S ta tes , 377 U.S. 201, 206 (1964) (surreptitious interrogation).
M ost judicial decisions interpreting the right to counsel involve individual
defendants, but the Sixth Amendment also affords corporations the right to coun­
sel. U nited S tates v. Rad-O -Lite o f P hiladelphia, Inc., 612 F.2d 740, 743 (3d
Cir. 1979); see also U nited States v. Unimex, Inc., 991 F.2d 546, 549 (9th Cir.
1993) (holding that “a corporation has a Sixth Amendment right to be represented
by counsel” at trial); U nited States v. Thevis, 665 F.2d 616, 645 n.35 (5th Cir.
1982) (accused corporation can avail itself of guarantees provided to “an
‘accused’” by Sixth Amendment), cert, denied, 459 U.S. 825 (1982). Because a
corporation ‘“ is an artificial entity that can only act through agents,” ’ Am erican
A irw a ys C harters, Inc. v. Regan, 746 F.2d 865, 873 n.14 (D.C. Cir. 1984) (quoting
Jones v. N ia g a ra F rontier Transp. A uth., 722 F.2d 20, 22 (2d Cir. 1983)), the pro­
scription o f interrogation in the absence of counsel after the commencement of
adversary judicial proceedings engenders some confusion when a corporation is
named as a defendant. Nevertheless, the contours of the Sixth Amendment right to
counsel available to corporations can be defined in both the criminal and civil
contexts.
II. C rim inal Proceedings Involving Corporations
Once the governm ent files criminal charges against a corporation, the Sixth
Am endm ent forecloses interrogation of the corporation outside the presence of
corporate counsel. U nited States v. K ilpatrick, 594 F. Supp. 1324, 1350 (D. Colo.
1984), re v 'd on o th er grounds, 821 F.2d 1456 (10th Cir. 1987), a jf ’d sub
nom. Bank o f N ova S cotia v. U nited States, 487 U.S. 250 (1988). Although the
district court opinion in Kilpatrick provides the only direct affirmation o f this
proposition, Sixth Amendment precedent bolsters the conclusion reached in K il­
p a trick. The Suprem e C ourt has em phasized that the Sixth Amendment “provides
the right to counsel at postarraignment interrogations.” M ichigan v. Jackson, 475
U.S. 625, 629 (1986). Because the Sixth Am endm ent right to counsel applies to
corporations as well as individuals, Unimex, 991 F.2d at 549; R ad-O -L ite, 612
F.2d at 743, corporations — like individuals — cannot be subjected to interroga­
tion outside the presence of counsel after the initiation of criminal proceedings.
See M aine v. M oulton, 474 U.S. 159, 170 (1985); 4B Op. O.L.C. at 580 (“Once
the right to counsel has attached, the governm ent may not elicit incriminating
statem ents from the [defendant] unless it has obtained a waiver o f his Sixth
A m endm ent right.”).
The question, then, is whether interrogation of high-level corporate executives
amounts to contact with the corporation itself. The relationship between corpora­
tions and their high-level executives provides the answer to this question. Corpo­
rate executives possess the power to invoke a corporation’s right to counsel.
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Sixth A m endm ent Im plications o f Law E nforcem ent C ontact with C orporate E xecutives
Potashnick v. P ort C ity Constr. Co., 609 F.2d 1101, 1119 & n.12 (5th Cir.), cert,
denied, 449 U.S. 820 (1980). M oreover, statements made by high-level corporate
executives can be imputed to the corporation itself as admissions. M iano v. A C &
R A dvertising, Inc., 148 F.R.D. 68, 76-77 (S.D.N.Y.) (Katz, M agistrate J.),
adopted, 834 F. Supp. 632 (S.D.N.Y. 1993). In sum, a corporation can invoke
constitutional rights and make binding inculpatory statements through its high-
ranking executives. Thus, interrogation o f corporate executives constitutes inter­
rogation of the corporation itself.3 Id. (collecting cases holding that contact with
high-level executives amounts to contact with corporation itself). Accordingly,
when law enforcement officials question high-ranking corporate executives outside
the presence of counsel after the initiation of formal criminal proceedings, the
Sixth Amendment dictates that — absent a valid waiver of the right to counsel —
all statements made by corporate executives are inadmissible against the corpora­
tion at a criminal trial.4 See M oulton, 474 U.S. at 180.
III. Civil Penalty Actions A gainst Corporations
Courts traditionally have rejected assertions of the Sixth Amendment right to
counsel in civil penalty proceedings on the assumption that the Sixth Amendment
applies only after the filing of criminal charges. See, e.g., W illiams v. U nited
S tates D e p ’t o f Transp., 781 F.2d 1573, 1578 n.6 (11th Cir. 1986); C ollins v.
Com m odity Futures Trading C om m ’n, 737 F. Supp. 1467, 1482-83 (N.D. 111.
1990). One commentator has suggested, however, that the Supreme C ourt’s ruling
in U nited States v. H alper, 490 U.S. 435 (1989), may have rendered this assum p­
tion obsolete. Linda S. Eads, Separating Crim e From Punishment: The C on stitu ­
tional Im plications o f U nited S tates v. H alper, 68 Wash U.L.Q. 929, 971-72
(1990). Consequently, you have asked us to address the effect — if any — of the
H alper decision upon the notion that the Sixth Amendment right to counsel does
not apply in civil penalty proceedings.
The H alper case involved a Double Jeopardy Clause challenge to a $130,000
civil penalty imposed upon an individual who had previously been convicted on
felony charges for the same conduct that led to the civil penalty. H alper, 490 U.S.
at 437-38. The Supreme Court found that the $130,000 civil penalty served re­
tributive or deterrent purposes, rather than merely remedial purposes, because the
penalty bore “no rational relation to the goal of compensating the Governm ent” for
3 T he New Jersey Suprem e Court has even suggested that a ''c o rp o ra tio n 's Sixth A m endm ent right to
counsel may be im plicated if governm ent prosecutors m ight, after indictm ent, unqualifiedly interview [a
low er-level em ployee] w hose conduct establishes the guilt o f the corporation *' M a tter o f O pinion 6 6 8 o f the
A d viso ry Com m on P rofessional Ethics, 633 A .2d 959, 963 (N J. 1993)
4 If the executives them selves have not been form ally charged, how ever, the statem ents they m ake can be
introduced in a subsequent crim inal proceeding against the executives See M o u lto n , 474 U.S at 180 C‘[T]o
exclude evidence pertaining to charges as to w hich the Sixth A m endm ent right to counsel had not attached at
the tim e the evidence was obtained, sim ply because other charges w ere pending at that tim e, w ould unneces­
sarily frustrate the p u b lic's in terest in the investigation o f c n m in al activities ")
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O pinions o f the O ffice o f L egal C ounsel
the $585 loss caused by H alper’s conduct. Id. at 449. Therefore, the civil penalty
amounted to “punishm ent” as contemplated by the Double Jeopardy Clause. Id. at
452.
The H a lp er Court unmistakably extended the reach of the Fifth Amendment,
but the C ourt carefully distinguished the Double Jeopardy Clause from “the proce­
dural protections o f the Sixth A m endm ent” and other constitutional safeguards
traditionally confined to criminal proceedings. H a lp er , 490 U.S. at 447. Specifi­
cally, the C ourt reaffirm ed that the application o f such constitutional guarantees
turns upon the “abstract approach” prescribed in U nited States v. Ward, 448 U.S.
242, 248-51 (1980), rather than the “ intrinsically personal” approach devised by
the H alper Court to assess the availability of Double Jeopardy Clause protection.
H alper, 490 U.S. at 447. In the wake of H alper, the lower courts have agreed that
the availability o f Sixth Amendment protections in civil penalty actions depends
upon the W ard test, rather than the H a lp e r standard. See U nited States v. 38 W hal­
ers C ove D rive, 954 F.2d 29, 35 (2d Cir.), cert, denied, 506 U.S. 815 (1992);
U nited S tates v. N evada P ow er Co., 31 E nv’t Rep. Cas. (BNA) 1878, 1882 (D.
Nev. 1990).
A ccording to Ward, a civil penalty action ordinarily should not be viewed as
a criminal case with all the attendant Fifth and Sixth Amendment guarantees.
Ward, 448 U.S. at 248-51. When a litigant in a civil penalty proceeding invokes
Sixth A m endm ent rights by characterizing the action as a criminal prosecution, the
court must engage in a two-part inquiry. Id. at 248. First, the court must “set
out to determ ine whether Congress, in establishing the penalizing mechanism,
indicated expressly or impliedly a preference for one label or the other.” Id.Second, “where Congress has indicated an intention to establish a civil penalty,”
the court m ust “inquire[] further w hether the statutory scheme [is] so punitive ei­
ther in purpose or effect as to negate that intention.” Id. at 248-49. ‘“ Only the
clearest p ro o f that the purpose and effect of the [civil penalty] are punitive will
suffice to override C ongress’ manifest preference for a civil sanction.” U nited
S tates v. One A ssortm en t o f 89 F irearm s, 465 U.S. 354, 365 (1984). Because the
“protections provided by the Sixth A m endm ent are explicitly confined to ‘criminal
prosecutions,” ’ Austin v. U nited S tates, 509 U.S. 602, 608 (1993), and civil pen­
alty actions generally cannot be characterized as “criminal prosecutions,” see
W ard, 448 U.S. at 248-51, the Sixth Amendm ent does not foreclose interrogation
o f a corporation’s executives while a civil penalty action is pending against the
corporation.
IV. C on clusion
Law enforcem ent contact with high-ranking corporate executives must be
judged by the same Sixth Amendment standards that govern individual defendants’
right to counsel. Thus, contact with corporate executives outside the presence of
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Sixth A m endm ent Im plications o f Law E nforcem ent C ontact with C orporate E xecutives
counsel is impermissible after the initiation of criminal proceedings against a cor­
poration, but such contact passes muster under the Sixth Amendment when civil
penalty proceedings are in progress.
W ALTER DELLINGER
A ssistan t A ttorney G eneral
Office o f Legal Counsel
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