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`Richard A. Wright, Esq.
`Nevada Bar No. 886
`Sunethra Muralidhara
`Nevada Bar No. 13549
`Wright Marsh & Levy
`300 S. Fourth Street, Suite 701
`Las Vegas, NV 89101
`Phone: (702) 382-4004
`Fax: (702) 382-4800
`rick@wmllawlv.com
`smuralidhara@wmllawlv.com
`
`Attorneys for Ryan Hee
`
`
`
`United States of America,
`
`
`Plaintiff,
`
`v.
`Ryan Hee,
`
`
`
`Defendant.
`
`United States District Court
`District of Nevada
`
`
`Case No. 2:21-cr-00098-RFB-BNW
`
`
`
`
`Defendant Ryan Hee’s Motion to Dismiss
`or in the Alternative Motion to Suppress1
`
`
`
`Memorandum of Points and Authorities
`
`Defendant Ryan Hee, by and through his attorneys of record, Richard A. Wright Esq.
`and Sunethra Muralidhara Esq., Wright Marsh & Levy, move to dismiss the charges brought
`against Mr. Hee in the Indictment, or alternatively, to suppress the statements illegally obtained
`by law enforcement on October 31, 2019.
`Mr. Hee contends that his Fourth, Fifth, Sixth, and Fourteenth Amendment rights were
`violated necessitating dismissal of the Indictment or suppression of his statements and any
`inculpatory evidence found through a search of his computer and personal cellular phone.
`
`
`1 Certification: This Pretrial Motion is timely filed. ECF 32.
`
`

`

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`Additionally, Mr. Hee asserts that there was unethical conduct by the prosecutors that requires
`dismissal or suppression, and that meets the threshold for prosecutorial misconduct. Because of
`their misconduct and the result that they may be witnesses, three Antitrust Division attorneys2
`should be disqualified.3
`What did the government do that was unconstitutional, unethical, and amounted to
`prosecutorial misconduct? In sum—the government directed a solo FBI agent to interview Mr.
`Hee, a represented party, without counsel present and without informing his counsel, and further
`provided access to three Antitrust Division attorneys by a real-time audio livestream link of Mr.
`Hee’s interview without informing Mr. Hee that his interview was being broadcasted or that
`these prosecutors could be surreptitiously listening to his interview. This conduct makes Mr.
`Hee’s consent involuntary. The government should not be rewarded with the fruits of its
`transgressions. The indictment should be dismissed, or in the alternative Mr. Hee’s statements
`suppressed.
`Introduction and Pertinent Factual History
`I.
`
`Ryan Hee is a 37-year-old man with no criminal history. He has always been a law-
`abiding person and a rule-follower. He has a bachelor’s degree and has maintained consistent
`employment through his adult life.
`
`
`2 The three Antitrust Division Attorneys who Mr. Hee seeks to disqualify are Albert B.
`Sambat, Paradi Javandel and Ken Sakurabayashi. A more thorough analysis for disqualification
`and their unethical conduct is provided herein.
`3 Typically, a motion to dismiss for prosecutorial misconduct and a motion to disqualify
`are filed as separate pretrial motions. However, because of the nature of the prosecutorial
`misconduct alleged and how deeply intertwined the facts are with Mr. Hee's separate request
`for dismissal or suppression under the Fourth, Fifth, Sixth, and Fourteenth Amendments, he
`provides the arguments herein for the Court to consider as additional basis for dismissal or
`suppression.
`2
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`VDA OC, LLC, formerly Advantage on Call, LLC (“AOC”)4 was a medical staffing
`company that employed nurses who were assigned to certain facilities to provide medical care
`to individuals. In October of 2016, Mr. Hee was the Regional Manager at Advantage on Call,
`LLC. In 2016, Individual 1 was the accounts manager at Company A, a medical staffing
`company that also employed nurses who were assigned to certain facilities to provide medical
`care to individuals. There were times where nurses from AOC and Company A would work
`side-by-side within the same facility.
`On March 30, 2021, the government filed an indictment against Ryan Hee and VDA
`OC, LLC formerly Advantage on Call, LLC for allegedly violating 15 U.S.C. § 1, Conspiracy
`in Restraint of Trade. ECF 1. Trial is currently set for February 28, 2022. ECF 32.
`The government’s investigation
`The government alleges that beginning in or around October 2016 and continuing at
`least until in or around July 2017, AOC, Mr. Hee, and others known and unknown to the Grand
`Jury knowingly entered into and engaged in a conspiracy to suppress and eliminate competition
`for the services of nurses by agreeing to allocate nurses and to fix the wages of those nurses.
`ECF 1 at 4. As part of the government’s investigation into the alleged conduct, the government
`served a grand jury subpoena on Successor AOC on October 30, 2019. In fact, the government
`had a telephone conversation with the general counsel for Cross Country, the parent company
`of Successor AOC, on October 30, 2019. The government emailed her a copy of the subpoena.
`At this time, the government, including the FBI, was on notice that Cross Country, the parent
`company of Successor AOC, was represented by counsel with respect to this investigation.
`
`
`4 VDA OC, LLC was previously known as and did business as Advantage On Call,
`LLC. In 2017, Advantage On Call was sold to Cross Country Healthcare, Inc. In October of
`2019, Cross Country was the parent company of a reconstituted Advantage On Call. In this
`brief, to differentiate the AOC entities before and after the sale, AOC as a subsidiary of Cross
`Country will be referred to as “Successor AOC” while AOC, the original company subsequently
`known as VDA OC, will be referred to only as “AOC.”
`3
`
`
`

`

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`Despite this knowledge and unbeknownst to Cross Country’s General Counsel, a solo
`FBI agent named Cody Fryxell (Agent Fryxell) appeared at Ryan Hee’s home and subsequently
`traveled to Cross Country’s office on October 31, 2019, interviewed Mr. Hee, and obtained his
`permission to copy the contents of his cellphone and company-issued computer. Allegedly
`during this October 31, 2019 interview, Mr. Hee made incriminating statements. The
`conversation between Mr. Hee and the solo FBI agent is memorialized in a 2-page FD-302. See
`Bates LVNP-FBI_00000033. Despite counsel’s written request, no additional or underlying
`notes or recordings of this meeting have been provided to defense counsel in discovery. The
`FD-302 states that Agent Fryxell advised Mr. Hee of his identity as the interviewing Agent and
`of the nature of the interview. Agent Fryxell did not indicate that three Antitrust Division
`attorneys, two of whom now serve as prosecutors in this case, had real-time audio access to the
`interview through a livestream link provided by Agent Fryxell.
`On November 1, 2019, counsel for Cross Country sent correspondence to the
`Department of Justice, Antitrust Division raising concerns about the government’s investigation
`and the interview of Mr. Hee the previous day. Counsel for Cross Country complained and
`objected that the FBI had approached Mr. Hee directly and interviewed him at the Company
`without counsel’s knowledge and without Mr. Hee knowing of the existence of a criminal
`investigation and grand jury subpoena.
`On November 5, 2019, DOJ Antitrust Attorney Albert Sambat responded to Counsel’s
`objection. The government stated that Mr. Hee’s interview did not violate any contact-with-
`represented-party rules because, in the government’s view, Cross Country’s counsel could not
`simultaneously represent both the company and Mr. Hee. In the government’s opinion, such
`joint representation would create a conflict of interest as both the company and Mr. Hee could
`implicate one another in the criminal conduct under investigation. The government cited to
`
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`4
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`

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`United States v. Powe, 9 F.3d 68 (9th Cir. 1993) stating that contact with a current employee of
`a company pre-indictment, in a non-custodial setting is authorized by law.
`The government’s unconstitutional and unethical conduct finally disclosed to the
`defendants on July 15, 2021—almost two years later
`
`On July 15, 2021, post-indictment and almost two years after Mr. Hee’s interview with
`the FBI, the government responded to a discovery request from the defendants who had asked
`the government, among many things, for “notes, including contemporaneous notes, by FBI
`Agents related to interviews in the investigation of this case and otherwise relevant to this case.”
`In partial response to this request the government simply stated:
`[T]he government is advising you that while the FBI’s interview of
`Mr. Hee on October 31, 2019 was not recorded, three Antitrust
`Division Attorneys, Albert B. Sambat, Paradi Javandel, and Ken
`Sakurabayashi, had real-time audio access to the interview through
`a livestream link provided by FBI SA Cody Fryxell. Mr. Hee was
`not informed that the attorneys could listen to the interview. No
`other notes were prepared by anyone of this interview other than SA
`Fryxell.” (Emphasis added).
`
`This belated disclosure raises serious concerns as to the accuracy of the information
`contained in the FD-302. Mr. Hee asserts that the FD-302 is neither accurate nor complete and
`omits important details of his interview with FBI Agent Fryxell. To start and at minimum:
`• The FD-302 provided regarding the October 31, 2019 interview with Mr. Hee fails to
`state that three Antitrust Division Attorneys had real-time audio access to the interview
`through a livestream link provided by FBI SA Cody Fryxell; It further fails to state that
`these three Antitrust Division Attorneys could listen to the interview;
`• The FD-302 fails to explain why a single FBI agent interviewed Mr. Hee in violation of
`FBI policy which requires two FBI agents to attend witness interviews;
`• There are other statements that were made during this interview that were not accurately
`memorialized or are completely absent from this report; and
`5
`
`
`
`

`

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`• Mr. Hee was a represented party at the time of the interview. Even if he were not, Mr.
`Hee asserts that there are serious questions as to whether he invoked the right to counsel
`during the interview on October 31, 2019.
`On August 3, 2021, Mr. Hee and VDA OC, LLC jointly responded by letter to DOJ’s
`shocking disclosure expressing concern and requesting additional information about the
`“livestream link” that provided “real-time audio access.” To date, the defendants have not
`received a response. Unanswered questions include whether or not the attorneys with real-time
`access also had the ability to communicate in real-time with Agent Fryxell. Given the
`government’s lack of response, the instant motion is being filed.
`Because of
`the government’s
`recently disclosed egregious, unethical, and
`unconstitutional conduct during the October 31, 2019 interview, the indictment should be
`dismissed or alternatively Mr. Hee’s statements suppressed. By hiding the true nature and scope
`of the interview and having prosecutors surreptitiously listen to the interview, the government
`diminished Mr. Hee’s understanding of the context of the interview and further undermined his
`right to counsel. Had Mr. Hee known that three Antitrust Division Attorneys were listening to
`his interview, that there was an ongoing criminal investigation (as evidenced by the grand jury
`subpoena), or that the government had contacted general counsel for his employer a day prior,
`he would have invoked his right to counsel sooner or potentially asserted his rights against self-
`incrimination and refused to answer questions or allow the FBI to copy the contents of his cell
`phone and company-issued computer without proper process.
`This unconstitutional governmental conduct gives rise to numerous constitutional and
`ethical violations requiring dismissal or alternatively suppression.
`
`
`
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`II.
`
`The Legal Landscape of Voluntary Consent and the Government’s Burden
`in showing Mr. Hee’s Consent to Speak With the FBI Was Voluntary.
`
`There is an intimate relationship between the Fourth Amendment’s guarantee against
`unreasonable search and seizure, the Fifth Amendment’s right against self-incrimination and
`the Sixth amendment’s right to counsel. “They throw great light on each other. For the
`‘unreasonable searches and seizures’ condemned in the [F]ourth amendment are almost always
`made for the purpose of compelling a man to give evidence against himself, which in criminal
`cases is condemned in the [F]ifth amendment; and compelling a man ‘in a criminal case to be
`a witness against himself,’ which is condemned in the fifth amendment, throws light on the
`question as to what is an ‘unreasonable search and seizure’ within the meaning of the fourth
`amendment.” Boyd v. United States, 116 U.S. 616, 633, 6 S. Ct. 524, 534, 29 L. Ed. 746 (1886).
`All of this is compounded when a person invokes the right to counsel or is considered a
`represented party, yet the government tramples on these constitutional guarantees.
`Statements that are coerced, or given involuntarily, violate due process and cannot be
`used at trial for any purpose. Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57
`L.Ed.2d 290 (1978). The appropriate test for the voluntariness of a statement is whether a
`defendant’s will was overborne by the totality of the circumstances. It requires an examination
`of the characteristics of the accused and the interrogation itself. Dickerson v. United States, 530
`U.S. 428, 434 (2000). See e.g. Reck v. Pate, 367 U.S. 433, 440 (1961)(“[A]ll the circumstances
`attendant upon the confession must be taken into account”); see also Malinski v. New York, 324
`U.S. 401, 404 (1945)(“If all the attendant circumstances indicate that the confession was
`coerced or compelled, it may not be used to convict a defendant”). The burden is on the
`government to prove by a preponderance of the evidence that a confession is voluntary. United
`States. v. Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981). Furthermore, if a suspect is interrogated
`in the absence of an attorney, the government must affirmatively prove not only that the waiver
`was voluntary, but also that it constituted “a knowing and intelligent relinquishment or
`7
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`

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`abandonment of a known right or privilege.” Edwards v. Arizona, 451 U.S. 477, 482 (1981)
`(citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The voluntariness analysis focuses on the
`coercive actions of law enforcement and the mental condition of the defendant, to determine
`whether the defendant’s will was “overborne” by the environment in which he was questioned
`and the interrogator’s actions. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). In order
`to be “knowing and intelligent,” a waiver must have been “made with a full awareness of both
`the nature of the right being abandoned and the consequences of the decision to abandon it.”
`Moran v. Burbine, 475 U.S. 412, 421 (1986). This analysis likewise depends “upon the
`particular facts and circumstances surrounding the case, including the background, experience,
`and conduct of the accused.” Edwards, 451 U.S. at 482; see also United States v. Morning, 64
`F.3d 531, 533 (9th Cir. 1995) (“although we have established these factors to aid in the decision
`making process, the full richness of every encounter must be considered ... Every encounter has
`its own facts and its own dynamics. So does every consent”).
`When reviewing a government actor’s conduct under the context of a Fourth and Fifth
`Amendment violation, it may be an
`obnoxious thing in its mildest and least repulsive form; but
`illegitimate and unconstitutional practices get their first footing
`in that way, namely, by silent approaches and slight deviations
`from legal modes of procedure. This can only be obviated by
`adhering to the rule that constitutional provisions for the security of
`person and property should be liberally construed. A close and
`literal construction deprives them of half their efficacy, and leads to
`gradual depreciation of the right, as if it consisted more in sound
`than in substance. It is the duty of courts to be watchful for the
`constitutional rights of the citizen, and against any stealthy
`encroachments thereon. [The government’s] motto should be obsta
`principiis.
`
`
`Boyd, 116 U.S. at 635; (emphasis added).
`
`
`
`8
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`III. Dismissal or suppression is also required because the government cannot
`show that Mr. Hee’s consent was voluntary
`
`The government overstepped the constitutional protections afforded to Mr. Hee under
`the Fourth, Fifth, Sixth and Fourteenth Amendments of the Constitution. The government had
`issued a grand jury subpoena to Successor AOC and knew Cross Country’s General Counsel
`was representing the company, Mr. Hee’s employer. Yet the government contacted Mr. Hee
`without advising counsel. The constitutional violations occurred when:
`
`1. FBI Agent Fryxell, at the direction of the DOJ Antitrust Division, approached Mr.
`Hee on October 31, 2019 to discuss the exact same investigation and the subjects of the grand
`jury subpoena, knowing or in reckless disregard of the fact that he was represented by counsel
`by virtue of his employer’s representation;
`
`2. FBI Agent Fryxell conducted an extensive interview of Mr. Hee and failed to inform
`him as to the true nature and scope of the investigation;
`3. FBI Agent Fryxell obtained Mr. Hee’s written consent to download the contents of
`his personal cell phone and work-issued computer knowing or in reckless disregard of the fact
`that he was represented by counsel and the computer was corporate property;
`
`4. FBI Agent Fryxell provided access to a real-time audio livestream link to three
`Antitrust Division Attorneys and failed to inform Mr. Hee that the prosecutors could listen to
`the interview;
`
`6. The Antitrust Division Attorneys failed to announce their presence or require Agent
`Fryxell to inform Mr. Hee that Agent Fryxell had provided a real-time audio access to three
`prosecutors.
`
`7. The government knowingly produced discovery to the defense that contained
`inaccurate information and misrepresentations.
`Under the totality of the circumstances, Mr. Hee’s consent to the October 31, 2019
`interview and search was involuntary as he was unable to make a knowing and informed
`9
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`

`

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`decision to speak with the FBI and government attorneys. In order for Mr. Hee’s consent to be
`knowing and intelligent, a waiver must have been made with a full awareness of both the nature
`of the right being abandoned and the consequences of the decision to abandon it. Mr. Hee
`consented to speak with a single FBI agent but was not even informed that his interview also
`involved DOJ attorneys and that he was the focus of a criminal investigation. Without that
`crucial information, he was not apprised of the nature of the rights he was abandoning and the
`consequences of the decision to abandon those rights.
`The Court should dismiss the indictment or alternatively suppress Mr. Hee’s statements
`because his participation in the October 31, 2019 interview was involuntary.
`IV. Mr. Hee was represented by counsel at the time of the October 31, 2019
`interview and the government violated his Fifth, Sixth and Fourteenth
`Amendment rights by engaging with this represented party
`
`Mr. Hee was a represented party but was questioned outside the presence of his counsel
`and unbeknownst to his counsel. The government has the burden of showing that Mr. Hee
`knowingly and intelligently relinquished or abandoned his right to counsel. The FD-302 gives
`no indication that he did so. Despite knowing that Cross Country and Successor AOC had
`counsel, the government skirted the provisions of the Fifth and Sixth Amendment and spoke
`with an employee of the company to obtain information it sought in an active investigation
`about an alleged antitrust violation. The government later represented that it believed Cross
`Country’s General Counsel could not simultaneously represent the company and Mr. Hee
`because such representation created a conflict of interest. To defend that belief, the
`government, after the interview, informed the defendants that it relied on Ninth Circuit
`precedent in United States v. Powe, 9 F.3d 68 (9th Cir. 1993).
`The government’s reliance on United States v. Powe, is misplaced. Mr. Powe and his
`co-defendants were deputy sheriffs with the Los Angeles County Sheriff’s department charged
`with conduct related to drug theft. One of his co-defendants agreed to become a cooperating
`10
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`

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`witness for the prosecution. At the request of the government, the co-defendant met with Mr.
`Powe before he was charged or arrested and secretly recorded their conversations. While the
`conduct in Powe was later approved by a court, the holding in Powe is inapplicable in the case
`at bar for one main reason: the government in Powe used an undercover cooperating witness
`who was also a co-defendant to execute a covert investigative technique. The Court reasoned
`that the “most effective law enforcement techniques for investigating complex crimes” is to use
`undercover contacts. Id. at 70.
`Here, the government wasn’t using an undercover agent or cooperating witness nor was
`it using any covert investigative technique. Rather, the day before the interview it served a
`subpoena on Cross Country and its affiliate, Successor Advantage On Call, had a conversation
`with General Counsel of Cross Country, knew Mr. Hee was the regional manager of Advantage
`On Call, and that he could have information about the company that could bind or be imputed
`to the organization for purposes of criminal liability. This is precisely the situation that the
`Rules of Professional Conduct were meant to address. Additionally, Powe dealt with a single
`defendant and his right to counsel versus a corporation and its right to counsel. The analysis as
`to who is a covered person for attorney-client purposes is a different analysis and one not
`contemplated by Powe.
`The government is in no position and has no authority to determine when a conflict of
`interest occurs in the representation of a defendant. That ethical obligation and analysis rests
`upon the defense attorney to discern and the government’s attempted usurpation of that role is
`suspect. See McPhearson v. Michaels Co., 96 Cal. App. 4th 843, 849–50, 117 Cal. Rptr. 2d
`489, 495 (2002) (noting that “where. . . the persons who are personally concerned with the
`alleged conflict of interest are not objecting, and disqualification is sought by a litigation
`adversary who is not personally interested in the alleged conflict, courts must be skeptical”).
`
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`On this basis, the Court should dismiss the indictment or suppress Mr. Hee’s statements
`made during the October 31, 2019 interview. The government knew or proceeded in reckless
`disregard of the fact that Mr. Hee was a represented party. Statements obtained in violation of
`the Constitution require dismissal or suppression.
`The Three Antitrust Division Attorneys’ unethical conduct requires
`V.
`dismissal of the indictment or suppression of Mr. Hee’s statements
`
` In order to warrant dismissal for prosecutorial misconduct, the misconduct must be “so
`grossly shocking and so outrageous as to violate the universal sense of justice.” United States
`v. King, 200 F.3d 1207, 1213 (9th Cir. 1999) (citation and internal quotations omitted); United
`States v. Green, 962 F.3d 938, 941 (9th Cir. 1992) (citation omitted). To warrant dismissal on
`this ground, a defendant “must prove that the government’s conduct was ‘so excessive, flagrant,
`scandalous, intolerable, and offensive as to violate due process.’” United States v.
`Edmonds, 103 F.3d 822, 825 (9th Cir.1996) (quoting United States v. Garza–Juarez, 922 F.2d
`896, 904 (9th Cir. 1993).
`The Ninth Circuit has indicated that suppression of evidence may be an appropriate
`remedy
`for prosecutorial misconduct amounting
`to
`a
`Fifth Amendment
`due
`process violation. See United States v. Rogers, 751 F.2d 1074, 1078
`(9th Cir.
`1985). Furthermore, the Supreme Court noted that when there have been searches and seizures
`in violation of the Fourth Amendment, the remedy has been to deny the prosecution the fruits
`of its transgression by suppressing the evidence at trial. United States v. Morrison, 449 U.S.
`361, 364, 101 S.Ct. 665, 668-69 (1981).
`Here, the Antitrust Division’s conduct justifies either remedy.
`Obtaining real-time audio access to Mr. Hee’s interview without
`A.
`disclosing that access to Mr. Hee is tantamount to recording the
`interview without consent and violates counsel’s ethical obligations.
`
`Prosecutors have a legal and ethical duty to announce their presence and identify
`themselves as attorneys when questioning a person in connection with an investigation. The
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`Case 2:21-cr-00098-RFB-BNW Document 38 Filed 09/03/21 Page 13 of 20
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`three Antitrust Division Attorneys failed to meet their ethical obligation to announce that they
`each had real-time audio access through a livestream link provided by Agent Fryxell during
`Mr. Hee’s October 31, 2019 interview. At minimum, the prosecutors had an obligation to direct
`Agent Fryxell to make this disclosure to Mr. Hee. Their failure to do so was fraudulent and a
`reckless or intentional misrepresentation by omission. While law enforcement may use
`disinformation when questioning a suspect, prosecutors must never engage in disinformation.
`Title 28 U.S.C. § 530B promulgates the ethical standards for attorneys for the
`Government. It states that prosecutors are “subject to State laws and rules, and local Federal
`court rules, governing attorneys in each State where such attorney engages in that attorney’s
`duties, to the same extent and in the same manner as other attorneys in that State.” 28 U.S.C.
`§ 530B. Mr. Hee submits that in this case, the three Antitrust Division attorneys are subject to
`the professional rules of the states in which each are licensed, the State of California where the
`attorneys are practicing law, the State of Nevada where the contact took place, and where the
`instant case is pending.5 As a result, the prosecutors in this case must follow the Professional
`Rules of Conduct in at least both California and Nevada. Any misconduct in either state may
`rise to an ethical violation.
`Under the California Rules of Professional Conduct, 8.4(c) “[i]t is professional
`misconduct for a lawyer to…(c) engage in conduct involving dishonesty, fraud, deceit, or
`reckless or intentional misrepresentation.” “Fraud” or “fraudulent” means conduct that is
`fraudulent under the law of the applicable jurisdiction and has a purpose to deceive. See CA
`ST RPC Rule 1.0.1(d). Under the Nevada Rules of Professional Conduct, 8.4(c), it is
`
`
`5 The indictment in this case establishes that DOJ attorney Albert B. Sambat and Paradi
`Javandel are licensed to practice attorneys in the State of California. A search of the State Bar
`of California also confirms that Ken Sakurabayashi is licensed in California. See
`http://members.calbar.ca.gov/fal/LicenseeSearch/QuickSearch?FreeText=Ken+Sakurabayashi
`&SoundsLike=false
`
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`Case 2:21-cr-00098-RFB-BNW Document 38 Filed 09/03/21 Page 14 of 20
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`professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit
`or misrepresentation. Nevada Rules of Professional Conduct, 8.4 (d) provides that “fraud” or
`“fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the
`applicable jurisdiction and has a purpose to deceive. See NRPC § 1.0(d).
`On June 24, 2001, the ABA adopted Formal Opinion 01-422. ABA Comm. on Ethics
`and Prof’l Responsibility, Formal Op. 01-422 (2001). Formal Opinion 01-422 permits an
`attorney to secretly record conversations with non-clients in states allowing recording on one-
`party consent. The opinion’s two prohibitions are that an attorney cannot secretly record a
`conversation in a jurisdiction in which recording with only one-party consent is illegal and an
`attorney may not falsely say that the conversation is not being recorded. Id.
` In Nissan Motor Co., Ltd. v. Nissan Computer Corp., 180 F.Supp.2d 1089 (C.D. Cal.
`2002), the Court stated that “[e]thical problems are clearly presented by an attorney’s tape
`recording of another party without his or her knowledge or consent.” The Court further found
`that “[i]nherent in the undisclosed use of a recording device is an element of deception, artifice,
`and trickery which does not comport with the high standards of candor and fairness by which
`all attorneys are bound.” Id.
`Nevada Rules of Professional Conduct Rule 8.4 is substantially similar to the California
`rule. Under either rule, the government’s conduct was fraudulent. By failing to announce their
`presence, the government’s conduct was intentionally misleading as to the nature of the
`interview. This unethical conduct, which is tantamount to recording a conversation without
`consent, requires that, at a minimum, Mr. Hee’s statements to Agent Fryxell should be
`suppressed. See People v. Walker, 145 Cal. App. 3d 886, 895, 193 Cal. Rptr. 812, 817 (Ct.
`App. 1983) (suppressing statements by a defendant when a prosecutor authorized a murder
`victim’s sister to tape record conversations with a represented defendant).
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`B.
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`The government’s unconstitutional intrusion upon a represented
`party violates ethical standards
`
`The Antitrust Division attorneys’ conduct further violated their ethical responsibilities
`because Mr. Hee was a represented party at the time of the October 31, 2019 interview.6 Under
`California’s Rules of Professional Conduct 4.2, a lawyer shall not communicate directly or
`indirectly about the subject of the representation with a person the lawyer knows to be
`represented by another lawyer. Additionally, this rule states that for cases of a represented
`corporation, this rule prohibits communications with managing agents of the organization or a
`current employee if the subject of the communication is an act or omission of such person in
`connection with the matter, which may be binding upon or imp

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