Tuesday, May 13, 2008

Right to Counsel on Underlying Charges Not Violated by Witness Tampering Investigation

US v. Mir: Mir was an immigration lawyer who assisted employers in completing the necessary paperwork to sponsor aliens for work in the United States and to allow alien workers to become permanent US residents. The Government began an investigation of Mir and his law firm on suspicion that some of the forms he completed contained false information. During the investigation, Mir sent a letter to the Government stating that he was represented by counsel. Eventually, a grand jury indicted Mir and his law firm for conspiracy to commit labor certification fraud, fraud, and racketeering. After the indictment, investigators suspected that Mir was tampering with witnesses. The Government used two aliens as CIs, sending them to Mir's office to record conversations with him. Based on those recordings, a witness tampering charge was added to the indictment. Mir unsuccessfully moved to suppress those recordings as a violation of his right to counsel or, alternately, sever the witness tampering charge from the rest of the indictment. Mir was convicted of fraud, but acquitted of conspiracy and witness tampering.

On appeal, the Fourth Circuit affirmed. Mir raised his Sixth Amendment argument, which was rejected by the court. The Fourth Circuit held that Mir's invocation of his right to counsel on the conspiracy and fraud charges did not apply to the separate offense of witness tampering. Although the two sets of offenses have "a point of factual overlap," they are still separate offenses. In addition, the Fourth Circuit held that the district court did not abuse its discretion in not severing the witness tampering charge from the others, noting that it "would have made little sense."

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