FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant, No. 06-30100

v. D.C. No.  CR-03-00432-ALH J. KENNETH STRINGER, III; J. MARK

SAMPER; WILLIAM N. MARTIN, OPINION

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

September 26, 2007—Portland, Oregon

Filed April 4, 2008

Before: Mary M. Schroeder, Barry G. Silverman and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Schroeder

3545
COUNSEL

Kelly A. Zusman, Portland, Oregon, for plaintiff-appellant

United States of America. 

Janet Lee Hofman, Portland, Oregon, for defendant-appellee

J. Kenneth Stringer, III. 

Ronald H. Hoevet, Portland, Oregon, for defendant-appellee

Mark Samper. 

OPINION

SCHROEDER, Circuit Judge: 

I. Introduction

The United States appeals from a final order of the district

court dismissing criminal indictments against three individual

defendants charging counts of criminal securities violations.

The dismissal was premised on the district court’s conclusion

that the government had engaged in deceitful conduct, in violation of defendants’ due process rights, by simultaneously

pursuing civil and criminal investigations of defendants’

alleged falsification of the financial records of their high-tech

camera sales company. Foreseeing the possibility of an

appeal, the district court held that the indictments must be dismissed, but ruled in the alternative that, should there be a

criminal trial, all evidence provided by the individual defendants in response to Securities and Exchange Commission

(“SEC”) subpoenas should be suppressed. See United States

v. Stringer, 408 F. Supp. 2d 1083 (D. Or. 2006). 

The court also suppressed evidence relating to the “Swedish Drop Shipment,” an allegedly fraudulent accounting entry.

The district court reasoned that the government had impropUNITED STATES v. STRINGER 3549
erly interfered with, or intruded into, the attorney-client relationship of one of the defendants by accepting incriminating

evidence about the entry from a defense attorney. The attorney had an apparent conflict of interest because she represented the corporation as well as an individual defendant. 

We vacate the dismissal of the indictments because in a

standard form it sent to the defendants, the government fully

disclosed the possibility that information received in the

course of the civil investigation could be used for criminal

proceedings. There was no deceit; rather, at most, there was

a government decision not to conduct the criminal investigation openly, a decision we hold the government was free to

make. There is nothing improper about the government undertaking simultaneous criminal and civil investigations, and

nothing in the government’s actual conduct of those investigations amounted to deceit or an affirmative misrepresentation

justifying the rare sanction of dismissal of criminal charges or

suppression of evidence received in the course of the investigations. 

We also reverse the order excluding evidence received

from the conflicted attorney. We do so because the government advised the attorney of the existence of a potential conflict and did not interfere with the attorney-client relationship.

II. Background

A. The concurrent SEC civil and U.S. Attorney

criminal investigations

Prior to the criminal action that forms the basis of this

appeal, the SEC began investigating the defendants, J. Kenneth Stringer, III, J. Mark Samper, and William N. Martin,

and their company for possible civil securities fraud violations. The company was FLIR Systems, Inc. (“FLIR”), an

Oregon corporation headquartered in Portland that sells infrared and heat-sensing cameras for military and industrial use.

3550 UNITED STATES v. STRINGER
The SEC began the investigation on June 8, 2000. About two

weeks later, the SEC held the first of a series of meetings with

the Oregon United States Attorney’s Office (“USAO”) to

coordinate the ongoing SEC investigation with a possible

criminal investigation. An SEC Assistant Director and an

SEC Staff Attorney met with the supervisor of the white collar crime section of the USAO to discuss the possibility of

opening a criminal investigation. The meeting apparently convinced the USAO supervisor to investigate. Within days, the

USAO and the Federal Bureau of Investigation (“FBI”)

opened a criminal investigation. 

Federal securities laws authorize the SEC to transmit evidence it has gathered to the USAO to facilitate a criminal

investigation by the USAO. See 15 U.S.C. §§ 77t(b), 78u(d).

To gather evidence for its criminal investigation, the Oregon

USAO in June of 2000 sent a letter to the SEC (the “Access

Letter”) requesting access to the SEC’s non-public investigative files, and the SEC promptly granted access. 

The civil and criminal investigations proceeded in tandem

and the SEC continued to meet and communicate with the

USAO and FBI. The SEC turned over documents the SEC

collected through its civil investigation. 

At the beginning of the criminal investigation, the USAO

identified two of the three defendants, FLIR’s former CEO,

Stringer, and former CFO, Samper, as possible targets, and

named them in the USAO’s Access Letter to the SEC. A few

months later, in October 2000, the Assistant United States

Attorney (“AUSA”) assigned to the case made a list of the

subjects of the investigation and placed asterisks and the comment “knew what [was] going on” next to the entries for Samper and Stringer. A month later, the AUSA stated in his

handwritten notes that Stringer had “lied [about] his role in”

the company. In April 2001, an e-mail from the SEC Staff

Attorney to the SEC Assistant Director stated the AUSA “define[d] [the] targets as Ken Stringer and Mark Samper.” 

UNITED STATES v. STRINGER 3551
The district court concluded that the third defendant, Martin, former VP of Sales, was also an early potential target of

the criminal investigation. Martin appears on the AUSA’s

early list of the subjects of the investigation above the comment “knew pushing up sales.” During a January 2001 meeting, the SEC advised the USAO and FBI that FLIR was

blaming Stringer and Martin for the fraudulent conduct at the

heart of the investigation. 

Early in the criminal investigation, the USAO decided the

investigation should remain confidential. At an October 2000

meeting between the SEC, USAO, and FBI, the AUSA

advised that the evidence collected by the SEC might support

criminal wire fraud charges. Nonetheless, an internal FBI

memo issued in late October stated that the AUSA had concluded, based on the defendants’ cooperation with the SEC at

that point, that the SEC should investigate “without the assistance or inclusion of the FBI.” At the January 2001 meeting

between the SEC, FBI, and USAO, the SEC revealed that

FLIR was cooperative and was providing evidence that was

damaging to Stringer and Martin. 

By June 2001, the USAO was not yet ready to convene a

grand jury and issue indictments. The SEC and USAO

believed that FLIR and defendant Samper would settle with

the SEC so long as the U.S. Attorney was not directly

involved. During a December 2001 phone conversation

between the AUSA assigned to the case and the SEC Assistant Director, the AUSA continued to believe it was “premature [sic] to surface” and that the presence of an AUSA

would “impede” a meeting between the SEC and defendants.

During a December 2002 phone call, the SEC and USAO

decided that the USAO would not “surface”, i.e., convene a

grand jury and issue indictments, until the “end of Jan/early

Feb” 2003. 

The SEC facilitated the criminal investigation in a number

of ways. The SEC offered to conduct the interviews of defen3552 UNITED STATES v. STRINGER
dants so as to create “the best record possible” in support of

“false statement cases” against them, and the AUSA

instructed the SEC Staff Attorney on how best to do that. The

AUSA asked the relevant SEC office, located in Los Angeles,

to take the depositions in Oregon so that the Portland Office

of the USAO would have venue over any false statements

case that might arise from the depositions, and the SEC did

so. Both the SEC and USAO wanted the existence of the

criminal investigation kept confidential. The SEC Staff Attorney, at one of the Portland depositions, made a note that she

wanted to “make sure [the] court reporters won’t tell [FLIR’s

Attorney]” that there was an AUSA assigned to the case. 

The SEC, however, did not hide from the defendants the

possibility — even likelihood — of such an investigation. The

SEC sent each of the defendants subpoenas in the summer of

2001, and attached to each was Form 1662, a form sent to all

witnesses subpoenaed to testify before the SEC. Under the

header “Routine Uses of Information,” the four-page form

states that “[t]he Commission often makes its files available

to other governmental agencies, particularly the United States

Attorneys and state prosecutors. There is a likelihood that

information supplied by you will be made available to such

agencies where appropriate.” 

Form 1662 also advises witnesses of their Fifth Amendment rights. After the heading “Fifth Amendment and Voluntary Testimony,” the form states that:

Information you give may be used against you in any

federal . . . civil or criminal proceeding brought by

the Commission of any other agency. You may

refuse, in accordance with the rights guaranteed to

you by the Fifth Amendment of the Constitution of

the United States, to give any information that may

tend to incriminate you or subject you to fine, penalty, or forfeiture. 

UNITED STATES v. STRINGER 3553
None of the defendants invoked his right against selfincrimination during his deposition, and all proceeded to testify in compliance with the subpoena. Each of the defendants

was represented by counsel when he testified. 

During the course of Stringer’s deposition, taken in Portland in October 2001, Stringer’s attorney actually questioned

the SEC Staff Attorney about the involvement of the USAO.

In response to those questions, the SEC Staff Attorney

answered as follows: 

MR. MARTSON: My first question is whether Mr.

Stringer is a target of any aspect of the investigation

being conducted by the SEC. 

STAFF ATTORNEY: The SEC does not have targets in this investigation. 

MR. MARTSON: The other questions I have relate

to whether or not, in connection with your investigation, the SEC is working in conjunction with any

other department of the United States, such as the

U.S. Attorney’s Office in any jurisdiction, or the

Department of Justice. 

STAFF ATTORNEY: As laid out in the 1662 form,

in the “routine use of” section there are routine uses

of our investigation, and it is the agency’s policy not

to respond to questions like that, but instead, to

direct you to the other agencies you mentioned. 

MR. MARTSON: And which U.S. Attorney’s Office

might I inquire into? 

STAFF ATTORNEY: That would be a matter up to

your discretion. 

The record does not show the SEC did anything to impede

an inquiry, nor does it disclose that any inquiry was made.

3554 UNITED STATES v. STRINGER
The record reflects that the government never furnished

defendants with any false information concerning the existence of a criminal investigation. 

In September 2002, a year before the criminal indictments,

defendants Samper and Martin entered into consent decrees in

the civil action, agreeing to pay penalties, disgorgement, and

pre-judgment interest. 

B. The “Swedish Drop Shipment” evidence from the

attorney jointly representing defendants

Throughout the course of the SEC investigation, FLIR was

represented by attorney Lois Rosenbaum. Defendant Samper,

FLIR’s former CFO, had retained separate counsel. In March

2000, Rosenbaum sent Samper a letter offering to jointly represent FLIR, Stringer, and Samper. In the letter, Rosenbaum

claimed that based on her “present knowledge of the facts,”

she did not anticipate that any conflicts would arise between

the co-clients. The letter, however, advised the clients to consult separate counsel before consenting to the joint representation and promised immediately to inform the clients if a

conflict did arise. 

Samper’s separate counsel sent a letter to Rosenbaum stating that Samper consented to the “joint representation in spite

of the potential conflict of interest that may arise between the

clients.” Samper’s separate counsel continued to represent

him as monitoring counsel. 

On June 30, 2000, the SEC sent Samper a subpoena with

Form 1662 enclosed. It warned of possible dangers of joint

representation. The form advised that “[y]ou may be represented by counsel who also represents other persons involved

in the Commission’s investigation. This multiple representation, however, presents a potential conflict of interest if one

client’s interests are or may be adverse to another’s.” 

UNITED STATES v. STRINGER 3555
In July 2000, when the SEC learned that Rosenbaum was

representing FLIR and its employees, it immediately sent her

a letter warning of the specific dangers of this corepresentation. “We are concerned that the broad range of

interests possessed by your many clients cannot be adequately

represented by a single attorney.” The letter specifically

pointed out the potential conflict of interest in representing a

company under investigation by the SEC and upper level

management who may have civil liability. The letter stated

that, “Although it is far too early in the investigation for the

SEC staff to identify people who may possess liability, we are

troubled by the scope and breadth of your representation.”

Rosenbaum continued to represent both FLIR and Samper,

among others. 

One of the eventual charges in the indictment was that two

of the involved defendants created the “Swedish Drop Shipment,” an entry in FLIR’s books that allegedly recognizes

$4.6 million in revenue without substantiation. FLIR’s Controller, David Meussle, first discovered the unsubstantiated

entry. Meussle believed that Stringer and Samper made the

entry. Rosenbaum represented Meussle, as well as Stringer,

Samper and FLIR. 

The SEC civil complaint, filed on September 30, 2002, two

years after the joint representation began, did not allege a

charge relating to the “Swedish Drop Shipment.” After

Rosenbaum received a copy of the complaint, she called the

SEC Staff Attorney, disclosed the existence of the “Swedish

Drop Shipment,” and facilitated SEC interviews with Meussle

in order to enhance the level of FLIR’s cooperation with the

government. Rosenbaum also sent a memo to the SEC that

contained possibly privileged communications she had with

Samper about the transaction. The criminal indictment later

charged that Stringer and Samper created the false entry. Thus

Rosenbaum, while representing Meussle and FLIR, apparently in order to further the interests of FLIR, assisted the

SEC’s investigation. 

3556 UNITED STATES v. STRINGER
C. Proceedings Below

On September 17, 2003, a grand jury returned an indictment charging Stringer, Samper, and Martin with securities,

mail, and wire fraud. Defendants filed motions to dismiss the

indictments and to suppress statements they made to the SEC.

The district court dismissed the indictments and suppressed

the SEC statements because it concluded that the government,

in violation of the due process clause, abused its authority to

conduct parallel proceedings. United States v. Stringer, 408 F.

Supp. 2d 1083, 1088-89 (D. Or. 2006). The district court held

that the government violated defendants’ Fifth Amendment

due process rights by using trickery and deceit to conceal the

criminal investigation from defendants, id. at 1080, and conducting a criminal investigation under the auspices of a civil

investigation, id. at 1089. The district court suppressed evidence of the “Swedish Drop Shipment” on the basis of its

conclusion that the government interfered with Samper’s

attorney-client relationship in violation of his due process

rights. Id. at 1091-92. 

This appeal by the government followed. This court has

jurisdiction pursuant to 18 U.S.C. § 3731.7 

III. Discussion 

A. The parallel investigations

[1] The Supreme Court has held that the government may

conduct parallel civil and criminal investigations without violating the due process clause, so long as it does not act in bad

faith. See United States v. Kordel, 397 U.S. 1, 11 (1970). In

Kordel, the Supreme Court held that the government did not

violate the due process rights of corporate executives when it

used evidence it obtained from an FDA civil investigation to

convict them of criminal misbranding. 397 U.S. 1 at 11. The

Court explained that the FDA did not act in bad faith when

it made a request for information, which ultimately was used

UNITED STATES v. STRINGER 3557
in the criminal investigation, for the agency made similar

requests as a matter of course in 75% of its civil investigations. Id. at 6. The Court suggested that the government may

act in bad faith if it brings a civil action solely for the purpose

of obtaining evidence in a criminal prosecution and does not

advise the defendant of the planned use of evidence in a criminal proceeding. Id. at 12-13. The Court thus distinguished the

Kordel investigation from bad faith cases where 

the [g]overnment has brought a civil action solely to

obtain evidence for its criminal prosecution or has

failed to advise the defendant in its civil proceeding

that it contemplates his criminal prosecution; . . . [or]

any other special circumstances . . . might suggest

the unconstitutionality or even the impropriety of

this criminal prosecution. 

Id. at 12-13. 

[2] The Supreme Court has not had occasion to address

such issues since Kordel, but lower courts have. In SEC v.

Dresser Industries, Inc., the D.C. Circuit applied the principles laid down in Kordel to a case involving parallel SEC

civil and Department of Justice criminal investigations. See

628 F.2d 1368, 1376-77 (D.C. Cir. 1980) (en banc). The court

emphatically upheld the propriety of such parallel investigations. “Effective enforcement of the securities laws requires

that the SEC and Justice be able to investigate possible violations simultaneously.” Id. at 1377. The court said it would

refuse to bar such investigations absent unusual circumstances. Id. It said courts should refuse to “block parallel

investigations by these agencies in the absence of ‘special circumstances’ in which the nature of the proceedings demonstrably prejudices substantial rights of the investigated party

or of the government.” Id.

District courts have occasionally suppressed evidence or

dismissed indictments on due process grounds where the gov3558 UNITED STATES v. STRINGER
ernment made affirmative misrepresentations or conducted a

civil investigation solely for purposes of advancing a criminal

case. See, e.g., United States v. Carriles, 486 F. Supp. 2d 599,

615, 619 (W.D. Tex. 2007); United States v. Rand, 308 F.

Supp. 1231, 1233, 1237 (N.D. Ohio 1970). 

In this case, the district court concluded that the government should have told defendants of the criminal investigation

and that it violated the standards laid down in Kordel when

it failed to “advise defendants that it anticipated their criminal

prosecution.” Stringer, 408 F. Supp. 2d at 1088. It held that

the government engaged in “trickery and deceit” when the

SEC staff attorney instructed court reporters to refrain from

mentioning the AUSA’s involvement. When the SEC staff

attorney responded to Stringer’s attorney’s question, during

Stringer’s deposition, by directing him to the U.S. Attorney,

the district court concluded that the SEC attorney “evaded the

question.” Id. at 1089. 

In its appeal, the government argues that it had no legal

duty to make any further disclosure of the existence of the

pending criminal investigation. It points to the warnings in

Form 1662 in which the government disclosed the possibility

of criminal prosecution, and it stresses that it did not make

any affirmative misrepresentations. It maintains the SEC

attorney’s answer was appropriate and truthful. 

The defendants argue that the district court properly held

that the use of the evidence obtained by the SEC in a criminal

prosecution would violate defendants’ Fifth Amendment privilege against self-incrimination. The defendants were advised

that the evidence could be used in a criminal investigation,

but defendants did not invoke their Fifth Amendment privilege during the SEC investigation. The government on appeal

correctly contends that defendants waived or forfeited their

Fifth Amendment right against self-incrimination. 

[3] The privilege against self-incrimination protects an

individual from being forced to provide information that

UNITED STATES v. STRINGER 3559
might establish a direct link in a chain of evidence leading to

his conviction. Hoffman v. United States, 341 U.S. 479, 486

(1951). It may be waived if it is not affirmatively invoked. In

Minnesota v. Murphy, the Supreme Court stressed that the

privilege is lost if not affirmatively invoked, even if the

defendant did not make a knowing and intelligent waiver. 465

U.S. 420, 428 (1984). We have similarly stated that a “defendant’s failure to invoke the privilege against selfincrimination waives a later claim of privilege.” Unruh, 855

F.2d at 1374 (holding that a defendant waived the privilege

when, after being advised of his right not to answer questions,

he proceeded to testify in a civil deposition). 

[4] The district court therefore erred in holding that defendants’ waivers of the privilege were ineffective because they

were not told of the U.S. Attorney’s active involvement. See

Stringer, 408 F. Supp. 1089-90. The SEC Form 1662 used in

this case alerts SEC investigative witnesses that the information can be used in a criminal proceeding. Defendants were on

sufficient notice, and so were their attorneys. As one federal

court has explained, all that was required was “sufficient

notice . . . that any information could be used against [them]

in a subsequent criminal proceeding.” United States v. Teyibo,

877 F. Supp. 846, 855 (S.D.N.Y. 1995). That court emphasized that “SEC Form 1662 stated in no uncertain terms that

the [g]overnment’s request for information could be refused

pursuant to the Fifth Amendment’s protection against compelled self-incrimination.” Id. We agree. 

[5] The SEC here went even further, warning each defendant at the beginning of each deposition that “the facts developed in this investigation might constitute violations of . . .

criminal laws.” Nonetheless, defendants proceeded to testify

and failed to invoke their privilege against self-incrimination.

Defendants have forfeited any claims that the use of their testimony against them in the criminal proceedings violates the

privilege against self-incrimination. 

3560 UNITED STATES v. STRINGER
[6] The defendants next contend that the district court properly concluded that the government used the civil investigation solely to obtain evidence for a subsequent criminal

prosecution, in violation of due process. The Supreme Court

in Kordel made it clear that dual investigations must meet the

requirements of the Fifth Amendment Due Process Clause.

See 397 U.S. at 11-12. While holding that “[i]t would stultify

the enforcement of federal law” to curtail the government’s

discretion to conduct dual investigations strategically, the

Court suggested that a defendant may be entitled to a remedy

where “the [g]overnment has brought a civil action solely to

obtain evidence for its criminal prosecution.” 397 U.S. at 11-

12. In this case, the government argues that it did not violate

defendants’ due process rights because the civil investigation

was not commenced solely to obtain evidence for a criminal

prosecution. 

[7] It is significant to our analysis that the SEC began its

civil investigation first and brought in the U.S. Attorney later.

This tends to negate any likelihood that the government began

the civil investigation in bad faith, as, for example, in order

to obtain evidence for a criminal prosecution. In United States

v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987), we held that

a defendant was not entitled to dismissal of his indictment

when the U.S. Department of the Treasury instituted its investigation before any indictment and in order to file its own civil

complaint. See also United States v. Churchill, 483 F.2d 268,

272 (1st Cir. 1973); United States v. Teyibo, 877 F. Supp.

846, 855 (S.D.N.Y. 1995). 

United States v. Carriles, 486 F. Supp. 2d 599, 619-21

(W.D. Tex. 2007), on the other hand, is a clear example of

government bad faith. The district court dismissed an indictment because the U.S. Citizenship and Immigration Services

(“USCIS”) interviewed the defendant solely to collect evidence in support of a criminal case against him. 486 F. Supp.

2d at 619-21. The defendant, a Cuban national, filed an application for naturalization. Id. at 601. Although USCIS had

UNITED STATES v. STRINGER 3561
already determined that the defendant was not eligible for citizenship, the agency nonetheless invited him to a precitizenship interview in order to collect evidence for a criminal false statements case. Id. at 619. The interview protocol

was altered in so many ways to serve the needs of the criminal

investigation that it became an interrogation. The court

described the “interview” as follows:

(1) it lasted eight hours over the course of two days

as opposed to the usual maximum of thirty minutes,

(2) it involved two interviewers, (3) the

[g]overnment provided an interpreter, (4) there were

a total of four attorneys present—two defense attorneys and two Government attorneys, and (5) it was

both audio and videotaped. 

Id. Because the “entire interview was . . . a pretext for a criminal investigation,” the district court dismissed the indictment.

Id. at 629-20. 

[8] Our case is not remotely similar to Carriles. In this case

the SEC’s civil investigation was opened first, led to SEC

sanctions and was conducted pursuant to the SEC’s own civil

enforcement jurisdiction. It was not a pretext for the USAO’s

criminal investigation of defendants. Congress has expressly

authorized the SEC to share information with the Department

of Justice to facilitate the investigation and prosecution of

crimes. See 15 U.S.C. §§ 77t(b), 78u(d). We must conclude

the SEC interviewed the defendants in support of a bona fide

civil investigation. There was no violation of due process. 

[9] Defendant appellees finally contend that the district

court properly concluded that dismissal or, in the alternative,

suppression, was warranted because the government lulled the

defendants into turning over incriminating evidence by engaging in “trickery and deceit.” It was dispositive for the district

court that the SEC staff attorney instructed court reporters to

refrain from mentioning the AUSA’s involvement and that the

3562 UNITED STATES v. STRINGER
SEC gave evasive answers to questions about the imminence

of a dual investigation. We have previously applied the Fourth

Amendment’s bar to unreasonable searches and seizures in

the context of dual investigations by the civil and criminal

branches of the IRS, where review of documentary evidence

is inherent in the investigation. We have thus held that a

search is unreasonable, even if consensual, if the consent is

obtained by trickery or deceit. See United States v. Robson,

477 F.2d 13, 18 (9th Cir. 1973). While not every SEC and

USAO dual investigation will necessarily involve a search

and seizure, to the extent that the individual defendants may

have been led through trickery or deceit to turn over documentary or physical evidence in their possession or to use

their official authority to turn over evidence in the possession

of the corporation, the defendants could state a claim under

the Fourth Amendment. 

[10] A government official must not “affirmatively mislead” the subject of parallel civil and criminal investigations

“into believing that the investigation is exclusively civil in

nature and will not lead to criminal charges.” Robson, 477

F.2d at 18. However, “we have consistently held that the failure of an IRS agent . . . to warn a taxpayer that an audit may

have potential criminal ramifications does not render the

search unreasonable.” Id. at 18-19 (denying suppression

where an IRS agent did not expressly advise a taxpayer that

the evidence the agent was gathering for a civil audit would

be used to support a criminal investigation). 

[11] Other circuits have agreed that Fourth Amendment and

possible due process limitations may be implicated in a dual

investigation. See United States v. Peters, 153 F.3d 445, 451

(7th Cir. 1998) ( “A consensual search is unreasonable under

the Fourth Amendment or violative of due process under the

Fifth Amendment if the consent was induced by fraud, deceit,

trickery or misrepresentation.”). Almost every other circuit

has denied suppression, even when government agents did not

disclose the possibility or existence of a criminal investigaUNITED STATES v. STRINGER 3563
tion, so long as they made no affirmative misrepresentations.

See United States v. Irvine, 699 F.2d 43, 46 (1st Cir. 1983);

United States v. Sclafani, 265 F.2d 408, 414-415 (2d Cir.

1959); United States v. Parenti, 326 F.Supp. 717, 722 (E.D.

Pa. 1971), aff’d, 470 F.2d 1175 (3rd Cir. 1971); Groder v.

United States, 816 F.2d 139, 144 (4th Cir. 1987); United

States v. Prudden, 424 F.2d 1021, 1030 (5th Cir. 1970);

United States v. Marra, 481 F.2d 1196, 1203 (6th Cir. 1973);

United States v. Lehman, 468 F.2d 93, 105 (7th Cir. 1972);

United States v. Grunewald, 987 F.2d 531, 534 (8th Cir.

1993); United States v. Katz, 705 F.2d 1237, 1243 (10th Cir.

1983); United States v. Waugneux, 683 F.2d 1343, 1347 (11th

Cir. 1982); United States v. Stamp, 458 F.2d 759, 777 (D.C.

Cir. 1971). 

The district court in this case relied on the Eighth Circuit’s

opinion in Grunewald, which said it would be a “flagrant disregard of individuals’ rights” to “deliberately deceive, or even

lull” a person into incriminating themselves in a criminal

investigation being pursued under the guise of a civil one. 987

F.2d at 534. The Eighth Circuit was referring to the criminal

defendant’s argument that he was the victim of a criminal

investigation being pursued in the guise of a civil tax audit.

Id. The court rejected the argument and affirmed the district

court’s denial of suppression because there had been no

deceit. Id. We applied virtually the same standard in Robson,

where we held that suppression was not appropriate in the

absence of affirmative misrepresentations. 477 F.2d at 17-18.

[12] In this case, the SEC made no affirmative misrepresentations. The SEC did advise defendants of the possibility of

criminal prosecution. The SEC engaged in no tricks to

deceive defendants into believing that the investigation was

exclusively civil in nature. The SEC’s Form 1662 explicitly

warned defendants that the civil investigation could lead to

criminal charges against them: “Information you give may be

used against you in any federal . . . civil or criminal proceeding brought by the Commission or any other agency.” Defen3564 UNITED STATES v. STRINGER
dants were represented by counsel, and the government

provided counsel, so far as this record reflects, with accurate

information. The standard we laid down in Robson was not

violated. 

The defendant-appellees point to a number of collateral

facts they argue demonstrate trickery or deliberate misleading.

They argue the SEC Staff Attorney affirmatively misled

Stringer’s attorney when, in response to the attorney’s question about other agency involvement, she directed him to the

provision in Form 1662 that warned that the SEC would likely

turn over to the USAO evidence it collected at the depositions. The Staff Attorney, during the deposition taken in Portland, declined to direct defense counsel to a specific U.S.

Attorney’s Office, which would have been the Portland

Office, but there was nothing false or misleading in her

response that it was up to the defendant to decide where to

direct his inquiries. 

[13] The defendant-appellees also point to the Staff Attorney’s request to the court reporters not to mention the AUSA

in the presence of defendants’ attorneys. While this indicates

an intent to prevent disclosure to defendants of the actual

criminal investigation, the possibility of criminal investigation

should have been well known to both the defendants and their

counsel. The request to the court reporters to, in effect, mind

their own business did not mislead or misinform defendants

about the existence of an investigation. Thus, to the extent

that the Fourth Amendment may have been implicated by the

dual investigation, the district court erred in concluding that

the government’s actions in this case constituted an unreasonable search or seizure. 

B. Interference with Samper’s attorney-client

relationship

The district court concluded that the government violated

defendant Samper’s due process rights when it obtained eviUNITED STATES v. STRINGER 3565
dence about the “Swedish Drop Shipment” from Samper’s

attorney, knowing that she had a conflict of interest. Stringer,

408 F. Supp. 2d at 1092. The government argues that it did

not deliberately intrude into Samper’s attorney-client relationship because all that it did was receive information that Samper’s attorney offered the government, wholly independent of

any government conduct. 

[14] We have held that “government interference with a

defendant’s relationship with his attorney may render counsel’s assistance so ineffective as to violate . . . his Fifth

Amendment right to due process of law.” United States v.

Irwin, 612 F.2d 1182, 1185 (9th Cir. 1980). “ ‘[A] claim of

outrageous government conduct premised upon deliberate

intrusion into the attorney-client relationship will be cognizable where the defendant can point to actual and substantial

prejudice.’ ” United States v. Haynes, 216 F.3d 789, 797 (9th

Cir. 2000) (quoting United States v. Voigt, 89 F.3d 1050,

1067 (3d Cir. 1996)). A claim of government interference

with the attorney-client relationship has three elements: (1)

the government was objectively aware of an ongoing, personal attorney-client relationship; (2) the government deliberately intruded into that relationship; and (3), as a result, the

defendant suffered actual and substantial prejudice. Voigt, 89

F.3d at 1067. 

Most cases finding deliberate intrusion into the attorneyclient relationship involve government informants who somehow penetrate the attorney-client relationship to obtain confidential or privileged information, and then feed that

information to the government. See, e.g., Haynes, 216 F.3d at

793-94. In Haynes, the defendant’s attorney’s investigator

served as a paid informant for the government. Id. at 792. In

United States v. Marshank, 777 F. Supp. 1507, 1519-1520

(N.D. Cal. 1991), the defendant’s attorney served as an

unpaid informant for the government by providing the government confidential client information on a regular basis. In

contrast, we have held that the government’s asking a defen3566 UNITED STATES v. STRINGER
dant’s former attorney to turn over privileged information

does not constitute deliberate intrusion on the part of the government when the attorney complies. See United States v.

Rogers, 751 F.2d 1074, 1080 (9th Cir. 1985). “The fact that

the attorney failed to assert the ethical obligation does not

transform [the government’s] investigation into governmental

misconduct.” Id.

[15] For similar reasons, there was no deliberate government interference here. The government did not deliberately

intrude into the relationship between Samper and Rosenbaum

when it accepted potentially incriminating evidence from

Rosenbaum, nor was Rosenbaum a government informant

whom the government sought out. Cf. Haynes, 216 F.3d at

793-94. In fact, in Form 1662, the government explicitly

warned Samper that “[y]ou may be represented by counsel

who also represents other persons involved in the Commission’s investigation. This multiple representation, however,

presents a potential conflict of interest if one client’s interests

are or may be adverse to another’s.” The conflict resulted

from Rosenbaum’s decision, wholly independent of the government, to represent FLIR and Samper. Samper had full

knowledge of a potential conflict and consented to the representation. There was no impropriety on the government’s part.

[16] Indeed, had the government contacted Samper directly

to warn him about the conflict, bypassing his attorney, the

government would have engaged in conduct that itself may

have amounted to interference. Cf. Or. Rules of Prof’l Conduct R. 4.2; Model Rules of Prof’l Conduct R. 4.2. The government’s receipt of evidence from counsel intended to assist

one client, but that also tended to incriminate another, was not

an intrusion or intentional interference with the attorney-client

relationship and did not justify dismissal of the indictment or

suppression of the evidence of the “Swedish Drop Shipment.”

IV. Conclusion

For the foregoing reasons, we conclude that there was no

deception or affirmative misconduct on the part of the governUNITED STATES v. STRINGER 3567
ment in the course of the SEC and U.S. Attorney investigations that warranted dismissal of the indictment or

suppression of any of the evidence in question. In addition,

defendants’ Fifth Amendment rights were not violated. 

The judgment of the district court dismissing the indictment

is VACATED. The district court’s suppression ruling is

REVERSED. The case is REMANDED for further proceedings. 

3568 UNITED STATES v. STRINGER