Prosecution IRS Agent’s Contact with Defense Expert Without Defense Counsel (9/8/21)

In United States v. Shun, 2021 U.S. Dist. LEXIS
161023 (W.D.N.Y. Aug. 25, 2021), Cl here,
in a tax crimes prosecution (conspiracy and tax perjury), one of the questions
discussed in the opinion is whether an attempt by IRS CI agents assisting the
prosecutor in the case to interview an expert designated by the defense was a
violation of the defendant’s Sixth Amendment right to counsel.  The discussion is short but instructive, so I
just cut and paste (Slip Op. pp. 4-7): 

Shun’s Motion for Relief Based on Violations of her Sixth
Amendment Rights

            On July 22,
2021, IRS Criminal Investigation Division Special Agent Scott Simmons, together
with another IRS special agent, visited the offices of Freed Maxick CPAs, P.C.
and attempted to interview Certified Public Accountant Richard Wright, who had
previously been identified by Shun as a potential expert witness for the
defense in this case. (Dkt. No. 186) Wright was not present at the Freed Maxick
office when Simmons and the other agent arrived. (Id.) The agents spoke with
another employee of the accounting firm and requested that the employee
instruct Wright to call the agents when he returned. (Id.) Wright called later
that same day and spoke with Simmons and the other agent briefly on speaker phone. (Id.)
Agent Simmons asked Wright some questions and inquired about documents
pertaining to the case. (Id.) Wright informed Simmons that he believed defense
counsel should be present for their communications and terminated the call.

Shun contends that Agent Simmons’ contact with Wright was a “willful and
deliberate attempt to interfere with the effectiveness of her defense” in
violation of her Sixth Amendment right to counsel. (Dkt. No. 186) Defendant
requests various remedies because of this alleged violation, including that the
Court: (1) order the Government to produce information about the nature and
purpose of Agent Simmons’ visit to Freed Maxick and telephone conversation with
Wright; (2) deem the income tax principles to which Wright is anticipated to
testify about at trial as “accepted” for purposes of the trial and
prohibit the Government from offering contradictory testimony; and (3) grant
additional sanctions in the form of fees and reimbursements to defendant. (Id.)

            In response
to defendant’s motion, the Government submits an affidavit from IRS Special
Agent Simmons. (Dkt. No. 194-1) Therein, Simmons states that on July 22, 2021,
he and another agent attempted to
interview Wright regarding this case. (Id. at ¶¶2-3) Simmons wanted to know
whether Wright was aware of the upcoming trial date in this matter and if
Wright had knowledge of any discoverable documents. n2 (Id. at ¶3) Simmons
avers that he knew he could not request any attorney work-product or privileged
materials from Wright, and that he had no intention of making such requests.
(Id. at ¶¶3, 11) During the call, Wright informed Simmons he was working with
Shun’s defense counsel, who had asked Wright to testify at trial about various
provisions of the Internal Revenue Code. (Id. at ¶10) Simmons asked Wright if
he reviewed any records or prepared any documents and Wright stated he had not.
(Id. at ¶11) Wright also told Simmons that he had not received a trial
subpoena. (Id. at ¶9) Agent Simmons affirmed that his telephone conversation
with Wright lasted approximately three minutes. (Id. at ¶7) During oral
argument of the motion, counsel for the Government further represented that the
conversation between Wright and Simmons lasted only about three minutes, and
that no privileged or confidential material was exchanged between them. (Dkt.
No. 207, pg. 10) Counsel for the
Government also represented to the Court and defense counsel that no
information or documents obtained as a result of the phone call would be
offered at trial, nor would the Government be relying on, or introducing at
trial, any statements made by Wright to Agent Simmons during the call. (Id.)
   n1 The
Superseding Indictment also charged Shen with Subscribing to a False Tax Return
on April 23, 2010. (Dkt. No. 33, Count 3) On March 15, 2019, the Government
moved to dismiss this Count and strike the first reference to Shen in Paragraph
21 of Count 1 of the Superseding Indictment. (Dkt. No. 77) The Court granted
the Government’s motion and issued an Order of Dismissal on March 18, 2019.
(Dkt. No. 78)
   n2 Agent
Simmons further affirmed that had Wright been in possession of discoverable
documents, he would not have requested the documents directly from Wright, but
instead would have contacted counsel for the Government and advised counsel to
obtain the documents through discovery. (Id. at ¶3)

            The Second
Circuit has instructed that counsel for all parties have a right to interview
an adverse party’s witness, provided that the witness is willing, without
either the presence or consent of opposing counsel and without a transcript
being made. International Business Machines Corp. v. Edelstein, 526 F.2d 37, 42
(2d Cir. 1975). Such interviews are permitted because “[a] criminal trial
is a quest for the truth [and] [t]hat quest will more often be successful if
both sides have an equal opportunity to interview the persons who have the
information from which the truth may be determined.” Id. See also United
States v. Carrigan
, 804 F.2d 599, 603 (10th Cir. 1986) (“[W]itnesses in a
criminal prosecution belong to no one, and …. subject to the witness’ right to
refuse to be interviewed, both sides have the right to interview witnesses
before trial.”); United States v. Hyatt, 565 F.2d 229, 232 (2d Cir. 1977)
(“[W]e shall not tolerate the view that the government [or any other
party] has some special right or privilege to control access to trial

            Because the
Government is permitted to
interview willing defense witnesses in a criminal case, Agent Simmons’
communications with Richard Wright, defendant’s anticipated expert witness at
trial, were neither inappropriate nor unlawful. Further, even if Agent Simmons
had been prohibited from speaking with Wright, which he was not, it is apparent
that no harm to defendant Shun arose from the contact. The conversation between
Wright and the agents lasted approximately three minutes and the record
reflects that no substantive information about either the facts of the case or
Wright’s anticipated testimony was discussed. Agent Simmons has affirmed, under
oath, that he did not request any privileged information or attorney
work-product information, and that no documents were shared or exchanged.
Likewise, counsel for the Government represented to both the Court and
defendant that no information or documents were obtained during the phone
conversation between Wright and Simmons, or as a result of the conversation,
that the Government will seek to use at trial. See United States v. Greber, 760
F.2d 68 (3d Cir. 1985) (“We find no merit in the defendant’s complaint
that an F.B.I. agent interviewed a potential expert witness for the defense
before trial…defendant has
demonstrated neither impropriety nor injury[.]”). n3
   n3 In
response to the Government’s statement that no information or documents were
obtained during the meeting that would be used at trial, defense counsel
responded that if “there was no other purpose to the contact other than to
prepare for trial or this case…[i]f that’s the case, then we’re fine with
it.” (Dkt. No. 207, pg. 10) Counsel further stated “[i]f there is no
use of it at trial, then we’re satisfied at that stage that there’s going to be
no consequence.” (Id.) Thus, defense counsel seems to conceded (sic) that
no harm arose from the contact.

            For these
reasons, the Court finds no violation of defendant Shun’s Sixth Amendment right
to effective assistance of counsel as a result of the agent’s interview of a
defense witness, and all relief Shun seeks based on these allegations is

JAT Comments:  

1.  Most attorneys would know that they should not talk to an IRS CI agent who just shows up for an interview.  It is common practice early an IRS criminal investigation for IRS CI agents to show up at the target’s residence or sometimes even office unannounced to catch the target off-guard for an interview in which the target might make damaging admissions. For that reason, attorneys representing potential targets advise the potential targets to decline respectfully to engage in discussing anything when such a cold-call is made on them.

2.  A similar genre of problem appears for witness interviews.  Good defense counsel will advise potential witnesses (including even their own expert witnesses) that a Government investigator may contact them without any advance notice to defense counsel.  Defense counsel should be careful to not discourage the witness from talking with the investigator, so as to not open up defense counsel to an obstruction investigation or charge.  But counsel can advise witnesses that, if they wish, they can have defense counsel present for the interview so long as it is a voluntary interview and not under legal compulsion (by, e.g., IRS summons which should not be used in a criminal prosecution but can be used in an IRS CI administrative investigation before referral to DOJ Tax.  The expert witness in Shun did the right thing by declining to be interviewed without defense counsel present.  

3.  The IRS agent apparently recognized that there was some sensitivity about the contact.  It is not entirely clear to me whether this type of contact of defense expert witnesses is a normal practice for IRS CI Agents assisting the prosecutor.