Sixth Amendment Implications of Law Enforcement

Contact with Corporate Executives

Law enforcement contacts with high-ranking executives of a corporation without the presence o f counsel after criminal charges have been filed against the corporation violate the corporation’s Sixth 

Amendment right to counsel

No Sixth Amendment violation occurs when such law enforcem ent contacts with high-ranking executives occur while civil penalty proceedings are in progress against the corporation

April 15, 1994

M e m o r a n d u m O p in io n f o r t h e

P r in c ip a l A s s o c ia t e D e p u t y A t t o r n e y G e n e r a l

You have asked us to consider the Sixth Amendment implications of law 

enforcement contacts with high-ranking corporate executives while criminal or 

civil penalty proceedings are pending against the corporation that employs the executives.1 We conclude that such contacts outside the presence of counsel violate 

the Sixth Amendment when criminal charges have been filed, but that law enforcement contacts of this nature do not contravene the Sixth Amendment when 

civil penalty proceedings are in progress.

I. The Sixth Amendment as a Restriction on Interrogation

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence.” 

U.S. Const, amend. VI. This constitutional safeguard comes into play concomitantly with the “first formal charging proceeding,”2 Moran v. Burbine, 475 U.S. 

412, 428 (1986), and encompasses the right to the assistance of counsel during all 

forms of interrogation. See, e.g., Brewer v. Williams, 430 U.S. 387, 400-01 (1977)

1 M em orandum for W alter Dellinger, Assistant Attorney G eneral, Office of Legal Counsel, from Irvin B. 

Nathan, Principal Associate Deputy Attorney General (Feb 24, 1994) We also received and considered 

com m ents contained in a M emorandum for M ary Jo W hite, United States Attorney, Southern D istrict of New 

York, from David B Fein, Deputy Chief, C rim inal Division, Southern District of New York (M ar. 11,

1994).

2 In 1980, we explained that, “[gjenerally, no infringem ent of the Sixth A m endm ent can occur prior to the 

initiation of formal judicial proceedings " Ethical Restraints oj the ABA Code oj Professional Responsibility

on Federal C rim inal Investigations, 4B Op. O L.C 576, 581 (1980) Although the Suprem e C ourt had 

previously held that the Sixth A m endm ent right to counsel could attach prior to indictm ent, we noted that the 

C ourt’s decision in that case — Escobedo v Illinois, 378 U S 478 (1964) — “has been limited to its facts ” 

4B Op O .L C at 581 n 10 (citing Johnson v N ew Jersev. 384 U S. 7 19, 733-34 (1966), and K trbv v. Illinois,

406 U S. 682, 690(1972)).

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(confession elicited by so-called Christian burial speech); M assiah v. United

S tates, 377 U.S. 201, 206 (1964) (surreptitious interrogation).

Most judicial decisions interpreting the right to counsel involve individual 

defendants, but the Sixth Amendment also affords corporations the right to counsel. U nited States v. Rad-O-Lite o f Philadelphia, Inc., 612 F.2d 740, 743 (3d 

Cir. 1979); see also U nited States v. Unimex, Inc., 991 F.2d 546, 549 (9th Cir. 

1993) (holding that “a corporation has a Sixth Amendment right to be represented 

by counsel” at trial); United States v. Thevis, 665 F.2d 616, 645 n.35 (5th Cir. 

1982) (accused corporation can avail itself of guarantees provided to “an 

‘accused’” by Sixth Amendment), cert, denied, 459 U.S. 825 (1982). Because a 

corporation ‘“ is an artificial entity that can only act through agents,”’ American

A irw ays Charters, Inc. v. Regan, 746 F.2d 865, 873 n.14 (D.C. Cir. 1984) (quoting 

Jones v. N iagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir. 1983)), the proscription of interrogation in the absence of counsel after the commencement of 

adversary judicial proceedings engenders some confusion when a corporation is 

named as a defendant. Nevertheless, the contours of the Sixth Amendment right to 

counsel available to corporations can be defined in both the criminal and civil 

contexts.

II. Criminal Proceedings Involving Corporations

Once the government files criminal charges against a corporation, the Sixth 

Amendment forecloses interrogation of the corporation outside the presence of 

corporate counsel. U nited States v. Kilpatrick, 594 F. Supp. 1324, 1350 (D. Colo. 

1984), rev'd on other grounds, 821 F.2d 1456 (10th Cir. 1987), a jf’d sub

nom. Bank o f N ova Scotia v. United States, 487 U.S. 250 (1988). Although the 

district court opinion in Kilpatrick provides the only direct affirmation of this 

proposition, Sixth Amendment precedent bolsters the conclusion reached in Kilpatrick. The Supreme Court has emphasized that the Sixth Amendment “provides 

the right to counsel at postarraignment interrogations.” Michigan v. Jackson, 475 

U.S. 625, 629 (1986). Because the Sixth Amendment right to counsel applies to 

corporations as well as individuals, Unimex, 991 F.2d at 549; Rad-O-Lite, 612 

F.2d at 743, corporations — like individuals — cannot be subjected to interrogation outside the presence of counsel after the initiation of criminal proceedings. 

See M aine v. M oulton, 474 U.S. 159, 170 (1985); 4B Op. O.L.C. at 580 (“Once 

the right to counsel has attached, the government may not elicit incriminating 

statements from the [defendant] unless it has obtained a waiver of his Sixth 

Amendment right.”).

The question, then, is whether interrogation of high-level corporate executives 

amounts to contact with the corporation itself. The relationship between corporations and their high-level executives provides the answer to this question. Corporate executives possess the power to invoke a corporation’s right to counsel.

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Potashnick v. Port City Constr. Co., 609 F.2d 1101, 1119 & n.12 (5th Cir.), cert,

denied, 449 U.S. 820 (1980). Moreover, statements made by high-level corporate 

executives can be imputed to the corporation itself as admissions. Miano v. AC &

R Advertising, Inc., 148 F.R.D. 68, 76-77 (S.D.N.Y.) (Katz, Magistrate J.), 

adopted, 834 F. Supp. 632 (S.D.N.Y. 1993). In sum, a corporation can invoke 

constitutional rights and make binding inculpatory statements through its highranking executives. Thus, interrogation of corporate executives constitutes interrogation of the corporation itself.3 Id. (collecting cases holding that contact with 

high-level executives amounts to contact with corporation itself). Accordingly, 

when law enforcement officials question high-ranking corporate executives outside 

the presence of counsel after the initiation of formal criminal proceedings, the 

Sixth Amendment dictates that — absent a valid waiver of the right to counsel — 

all statements made by corporate executives are inadmissible against the corporation at a criminal trial.4 See Moulton, 474 U.S. at 180.

III. Civil Penalty Actions Against Corporations

Courts traditionally have rejected assertions of the Sixth Amendment right to 

counsel in civil penalty proceedings on the assumption that the Sixth Amendment 

applies only after the filing of criminal charges. See, e.g., Williams v. United

States D ep ’t o f Transp., 781 F.2d 1573, 1578 n.6 (11th Cir. 1986); Collins v. 

Commodity Futures Trading C om m ’n, 737 F. Supp. 1467, 1482-83 (N.D. 111. 

1990). One commentator has suggested, however, that the Supreme Court’s ruling 

in United States v. Halper, 490 U.S. 435 (1989), may have rendered this assumption obsolete. Linda S. Eads, Separating Crime From Punishment: The Constitutional Implications o f United States v. Halper, 68 Wash U.L.Q. 929, 971-72 

(1990). Consequently, you have asked us to address the effect — if any — of the 

H alper decision upon the notion that the Sixth Amendment right to counsel does 

not apply in civil penalty proceedings.

The H alper case involved a Double Jeopardy Clause challenge to a $130,000 

civil penalty imposed upon an individual who had previously been convicted on 

felony charges for the same conduct that led to the civil penalty. Halper, 490 U.S. 

at 437-38. The Supreme Court found that the $130,000 civil penalty served retributive or deterrent purposes, rather than merely remedial purposes, because the 

penalty bore “no rational relation to the goal of compensating the Government” for

3 The New Jersey Supreme Court has even suggested that a ''corporation's Sixth A m endm ent right to 

counsel may be implicated if governm ent prosecutors might, after indictm ent, unqualifiedly interview [a 

lower-level em ployee] whose conduct establishes the guilt of the corporation *' M atter o f O pinion 668 o f the

A dvisory Comm on Professional Ethics, 633 A.2d 959, 963 (N J. 1993)

4 If the executives them selves have not been formally charged, however, the statem ents they m ake can be 

introduced in a subsequent crim inal proceeding against the executives See M oulton, 474 U.S at 180 C‘[T]o 

exclude evidence pertaining to charges as to which the Sixth A m endm ent right to counsel had not attached at 

the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of cnm inal activities ")

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the $585 loss caused by Halper’s conduct. Id. at 449. Therefore, the civil penalty 

amounted to “punishment” as contemplated by the Double Jeopardy Clause. Id. at 

452.

The H alper Court unmistakably extended the reach of the Fifth Amendment, 

but the Court carefully distinguished the Double Jeopardy Clause from “the procedural protections of the Sixth Amendment” and other constitutional safeguards 

traditionally confined to criminal proceedings. H alper, 490 U.S. at 447. Specifically, the Court reaffirmed that the application of such constitutional guarantees 

turns upon the “abstract approach” prescribed in U nited States v. Ward, 448 U.S. 

242, 248-51 (1980), rather than the “intrinsically personal” approach devised by 

the H alper Court to assess the availability of Double Jeopardy Clause protection. 

H alper, 490 U.S. at 447. In the wake of Halper, the lower courts have agreed that 

the availability of Sixth Amendment protections in civil penalty actions depends 

upon the W ard test, rather than the H alper standard. See United States v. 38 Whalers Cove D rive, 954 F.2d 29, 35 (2d Cir.), cert, denied, 506 U.S. 815 (1992); 

U nited States v. N evada Power Co., 31 Env’t Rep. Cas. (BNA) 1878, 1882 (D. 

Nev. 1990).

According to Ward, a civil penalty action ordinarily should not be viewed as 

a criminal case with all the attendant Fifth and Sixth Amendment guarantees. 

Ward, 448 U.S. at 248-51. When a litigant in a civil penalty proceeding invokes 

Sixth Amendment rights by characterizing the action as a criminal prosecution, the 

court must engage in a two-part inquiry. Id. at 248. First, the court must “set 

out to determine whether Congress, in establishing the penalizing mechanism, 

indicated expressly or impliedly a preference for one label or the other.” Id.

Second, “where Congress has indicated an intention to establish a civil penalty,” 

the court must “inquire[] further whether the statutory scheme [is] so punitive either in purpose or effect as to negate that intention.” Id. at 248-49. ‘“ Only the 

clearest p ro o f that the purpose and effect of the [civil penalty] are punitive will 

suffice to override Congress’ manifest preference for a civil sanction.” United

States v. One Assortm ent o f 89 Firearms, 465 U.S. 354, 365 (1984). Because the 

“protections provided by the Sixth Amendment are explicitly confined to ‘criminal 

prosecutions,” ’ Austin v. United States, 509 U.S. 602, 608 (1993), and civil penalty actions generally cannot be characterized as “criminal prosecutions,” see

Ward, 448 U.S. at 248-51, the Sixth Amendment does not foreclose interrogation 

of a corporation’s executives while a civil penalty action is pending against the 

corporation.

IV. Conclusion

Law enforcement contact with high-ranking corporate executives must be 

judged by the same Sixth Amendment standards that govern individual defendants’ 

right to counsel. Thus, contact with corporate executives outside the presence of

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counsel is impermissible after the initiation of criminal proceedings against a corporation, but such contact passes muster under the Sixth Amendment when civil 

penalty proceedings are in progress.

WALTER DELLINGER 

Assistant Attorney G eneral

Office o f Legal Counsel

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