United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are Defendant Jonathan Woods's Motion
and Request for Hearing (Doc. 63), the Government's
Response in Opposition (Doc. 67), and Mr. Woods's Reply
(Doc. 68). For the reasons given below, Mr. Woods's
Motion is DENIED.
Superseding Indictment in this case (Doc. 29) charges Mr.
Woods with fourteen counts of wire fraud, one count of mail
fraud, and one count of money laundering, all in relation to
a bribery conspiracy in which he is alleged to have
participated while he was a member of the Arkansas Senate.
His codefendants in this case have also been charged with
thirteen counts of wire fraud each and pne count of mail
fraud each, all in relation to the same alleged scheme. All
three codefendants in this case have entered pleas of not
guilty to the Superseding Indictment.
Woods contends that from June 18, 2016 "until late 2016,
" a defendant in a separate but related case secretly
recorded approximately forty conversations he had with Mr.
Woods on the subject of Mr. Woods's involvement in the
matters described in the Indictment and Superseding
Indictment in this case, and that he appears to have made
these secret recordings at the Government's direction.
See Doc. 63, ¶¶ 8-11. Mr. Woods further
contends that throughout this entire time period, the
Government "had full knowledge" that Mr. Woods was
represented by counsel. See Id. at ¶ 5. Mr.
Woods argues that these events violated his right to counsel
as guaranteed by the Sixth Amendment of the United States
Constitution, see Massiah v. United States, 377 U.S.
201, 205-07 (1964) (holding that federal agents violated the
Sixth Amendment by deliberately eliciting self-incriminating
statements from a represented defendant through conversations
with a bugged informant, outside the presence of the
defendant's counsel, after the defendant had been
indicted), and that the recordings as well as any other
evidence derived from these violations should be suppressed
as "fruit of the poisonous tree, " see Wong Sun
v. United States, 371 U.S. 471, 487-88 (1963). Mr. Woods
also argues that the recordings indicate a violation of Rule
4.2 of the Arkansas Rules of Professional Conduct.
Accordingly, Mr. Woods "is requesting a hearing on this
matter to determine the circumstance surrounding these
recordings." See Doc. 63, ¶ 11. At the end
of the hearing, Mr. Woods would "seek all relief that he
may be entitled to as a result of any violations of his Sixth
Amendment right to counsel and any other applicable rights
and rules." See id.
Government agrees that the recordings were made, but denies
that the individual who made them was acting in coordination
with, or under the direction of, the Government. But
regardless, the Government maintains that there would have
been nothing illegal or improper about it coordinating with
or directing the recording activities, because
"adversary judicial criminal proceedings" had not
yet been initiated against Mr. Woods at the time the
recordings were made. See Kirby v. Illinois, 406
U.S. 682, 689 (1972). There is no need for the Court to
resolve the factual dispute over whether the Government
coordinated with or directed the recording activities,
because the Court agrees with the Government that, under
controlling legal precedent, it would not have been a Sixth
Amendment violation for the Government to do exactly what Mr.
Woods accuses it of doing.
Supreme Court has held that "a person's Sixth ...
Amendment right to counsel attaches only at or after the time
that adversary judicial proceedings have been initiated
against him . . . whether by way of formal charge,
preliminary hearing, indictment, information, or
arraignment." See Id. at 688-89. None of those
events had yet occurred at the time the recordings of Mr.
Woods were made. And although it is not clear to the Court
whether Mr. Woods had ever been arrested on some date prior
to one or more of the recording activities, Mr. Woods has not
contended that he was in custody during any of the recorded
conversations,  and at any rate, the Eighth Circuit has
"repeatedly held that the [Sixth Amendment] right [to
counsel] does not attach with an arrest, even an arrest
preceded by the filing of a complaint under Rule 3 of the
Federal Rules of Criminal Procedure." Beck v.
Bowersox, 362 F.3d 1095, 1102 (8th Cir. 2004).
Rule 4.2 of the Arkansas Rules of Professional Conduct, it
states in subsection (a) that "[i]n representing a
client, a lawyer shall not communicate about the subject of
the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized
to do so by law." Comment 5 to that Rule explains that
"[c]ommunications authorized by law may . . . include
investigative activities of lawyers representing governmental
entities, directly or through investigative agents, prior to
the commencement of criminal or civil enforcement
proceedings." As the Eighth Circuit observed when
interpreting an almost identically-worded provision in the
Minnesota Code of Professional Responsibility and applying it
to facts that were strongly analogous to the ones presently
before this Court"We do not believe that... the Code of
Professional Responsibility was intended to stymie undercover
investigations when the subject retains counsel."
United States v. Fitterer, 710 F.2d 1328, 1333 (8th
Cir. 1983). IT IS THEREFORE ORDERED that Defendant Jonathan
Woods's Motion and Request for Hearing (Doc. 63) is
 If Mr. Woods was in custody during any
of the conversations, that could implicate his Fifth
Amendment right to counsel, see Miranda v. Arizona,
384 U.S. 436, 467-70 (1966), an issue which he has not raised
 In Fitterer, before
adversarial proceedings were initiated against the defendant
(Mr. Fitterer), but after Mr. Fitterer had retained counsel,
the Government "obtained help in the investigation from
one of Fitterer's accomplices, " who "agreed to
wear a tape recorder and a transmitter to a meeting with
Fitterer and thereby helped ...