APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (PITTSBURGH)
Before: ALDISERT and WEIS, Circuit Judges, and RE, Chief Judge.*fn*
The question for decision in this appeal by the government is whether the district court erred in suppressing the use of three recorded conversations. Although the government recorded the conversations with the permission of one of the participants, the district court barred their use because it found that they had been obtatined by trick and deception in disregard of the defendant's constitutional rights. Notwithstanding the court's findings of fact, we hold that the evidence should not have been suppressed. We reverse.
Appellee William Mitlo is a chiropractor with offices in New Castle, Pennsylvania. On a tip from his former secretary, agents of the Postal Service and the Department of Health and Human Services visited Mitlo to discuss alleged Medicaid fraud. Mitlo telephoned his lawyer who advised him not to talk to the agents and who also told the agents that Mitlo would not provide any information to them. On advice of counsel, Mitlo invoked fifth and sixth amendment rights, indicated that he wished to have counsel present, refused to deliver records, and refused to talk further with the agents. Two months later the government agents spoke to Ronald McAllen, one of Mitlo's patients, who, according to Medicaid records, made 204 office visits to the chiropractor.McAllen reported to the investigators that the number of his visits was accurate but that Mitlo apparently had overreported the number of visits McAllen's son had made. McAllen later testified that he was worried that the investigation would result in loss of his welfare benefits and agreed to permit the government agents to record his future conversations with Mitlo. App. at 93a, 101a.
The government recorded three McAllen-Mitlo conversations. The first two were telephone conversations, initiated by McAllen, recorded by government agents at McAllen's end of the connection. In the first of these, Mitlo repeatedly urged McAllen not to say anything over the phone, but McAllen told Mitlo that he had been informed by the agents that Mitlo's phone was not tapped. App. at 154a-168a. In a second, shorter, recorded conversation, McAllen agreed to meet with Mitlo at the chiropractor's office. The agents then wired McAllen for sound by equipping him with a wireless microphone. McAllen met with Mitlo in Mitlo's office, and government agents recorded this face-to-face conversation. At the suppression hearing, McAllen testified that he agents had not specifically instructed him on what to say to or ask of Mitlo. Id. at 104a-05a.
Some two years later Mitlo was indicted on four counts of Medicaid fraud, 18 U.S.C. § 1001, and five counts of mail fraud, 18 U.S.C. § 1341. He moved to suppress the recordings of the two telephone conversations and the conversation conducted in his office. The district judge granted the motion because:
Defendant Mitlo was repeatedly deceived by the Government, by the actions of its operative, McAllen, both as to the identity of McAllen as a government operative, and in the nature of McAllen's visit to Mitlo, which was arranged for the sole purpose of fraudulently eliciting incriminating statements from Defendant Mitlo about his past conduct with regard to Medicaid claims, even though Mitlo previously and unambiguously informed the Government of his intention to invoke his Fifth and Sixth Amendment rights.
United States v. Mitlo, 557 F. Supp. 520, 524 (W.D.Pa.1983). The government filed a timely appeal. We have jurisdiction under 18 U.S.C. § 3731.
The government argues that, notwithstanding the court's finding of trickery, monitoring the conversations was not violative of Mitlo's constitutional rights, that the defendant had no sixth amendment right to the assistance of counsel because no "critical stage" of the proceeding had been entered, that he had not been arrested, had not been taken into custody, and had not been indicted.
The district court found that McAllen intentionally deceived Mitlo into talking. This finding is entitled to considerable deference. McAllen's testimony and the transcripts of the conversqations support this finding. On review the district court's findings of narrative or historical facts are measured by the clearly erroneous test; as to the legal component of its conclusion, however, this court has plenary review. United States v. Camiel, 689 ...