Billy Gale Henry v. United States ( 1978 )

DONALD RUSSELL, Circuit Judge,

dissenting:

I respectfully dissent.

The issue in this case is whether the testimony of Nichols, recounting the incriminating information given him by the defendant while the two were prison cellmates, should have been excluded as violative of the defendant’s right to counsel under the Sixth Amendment. The majority, relying on Massiah¹ for authority, would hold that it should be excluded. I disagree.

As I read Massiah, it commands exclusion only when the challenged testimony is the result of “interrogation.” And this is indisputably the way the Supreme Court in the recent case of Brewer v. Williams² read Massiah. The prevailing opinion of Justice Stewart in Brewer declared “that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him ” but, applying the rule to the facts in Brewer, it added that “no such constitutional protection [of the right to counsel] would have come into play if there had been no interrogation.” (Italics added) ³ Justice Powell in his concurring opinion (which was necessary to the decision of the Court) was even clearer. He saw the critical issue to be whether there had been interrogation in fact; if there were no interrogation, there would be no constitutional violation and no ground for exclusion.⁴ The dissenting opinion agreed with the opinion of Justice Stewart that exclusion of the evidence turned on whether it was the result of “interrogation.” Actually, the dispute in the various opinions in the case did not concern whether “interrogation” is a prerequisite for exclusion of incriminating statements by a defendant for a violation of the defendant’s Sixth Amendment rights: the dispute centered on whether there had been “interrogation.” “Interrogation” is thus established by Brewer as the key issue. To paraphrase again Justice Stewart’s opinion in that case, “if there [has] been no interrogation,” the constitutional right to counsel does “not come into play” or arise.

The majority opinion here appears to recognize that Brewer has now established beyond question that the issue in this case turns on whether the testimony in dispute was the result of “interrogation.” It dismisses the issue, however, with the comment that “ ‘interrogation’ is a relative term.” If, by this, the majority means that “interrogation” is not limited to direct questioning, we would agree. In Brewer, the officer did not engage in direct questioning of the defendant. Knowing, however, that the defendant was of questionable mental capacity and of strong Christian faith, he made a very clever speech to the defendant about the shame of the small slain girl left out in the freezing cold without a decent “Christian burial” with the plain purpose of shaming him into revealing the whereabouts of the slain girl’s body. That speech, the majority found, was “tantamount to interrogation”⁵ or, as Justice Powell characterized it, was “a skillful and effective form of interrogation.”⁶ But presence, alone,⁷ is not enough to constitute interrogation. Nor is listening interrogation. . The mere “subjective desire to obtain information from a suspect after arraignment,” if unaccompanied by some affirmative action, either direct or subtle, reasonably calculated to induce conversation relative to the crime, will not satisfy the requisite of “interrogation.”⁸ The officer or informer must stimulate, however, subtly, the incriminating conversation to satisfy the test of “interrogation.”

The majority opinion makes little effort .to qualify the action of the informer in this case as “interrogation” unless simply the “presence” of a paid informer is sufficient.⁹ In any event, the conduct of the informer in this case would not so qualify. The informer Nichols was a state prisoner, serving a state sentence. He had formerly been a paid informer for the federal government but he had fallen afoul the state forgery laws and was at the time a state prisoner. In late November, 1972, an FBI agent visited Nichols at the jail where he was imprisoned. Nichols told the agent there were a number of federal prisoners, including the defendant, in his cell block in the jail. The agent did not know that the defendant and Nichols were cellmates and he had nothing to do either with Nichols being in the same jail with the defendant or- with the two being made cellmates. The agent told Nichols to be alert to any statements by the federal prisoners. He expressly instructed Nichols not to initiate any conversation with the federal prisoners, but, if they talked, to pay close attention to what they said. Nichols was merely to listen. In particular, Nichols was directed “not to question [the defendant] in regard to the bank robbery.”

Some weeks later, after Nichols had completed his state sentence and had been released, the agent saw Nichols, who told him of the incriminating statements he heard the defendant make. There is no evidence that Nichols had in any way violated the instructions given him by the agent. The record indicates that the defendant’s incriminating statements were voluntarily and spontaneously given without any encouragement from Nichols. And the District Judge so found. Under this finding, by which we are bound since it cannot be said to be clearly erroneous, there was no “interrogation” of the defendant by Nichols, however broadly that term may be defined.

The majority — I repeat — offers nothing to suggest that the statement of the defendant, testified to by Nichols, was secured as a result of “interrogation” beyond the ambiguous statement indicating that presence of an undisclosed informer-listener in the cell with the defendant satisfied “interrogation” under its definition of that term as merely “relative.” This conclusion follows from the unique way in which the majority opinion proceeds to find “that there was interrogation within the meaning of Brewer.” It predicated its crucial conclusion that there was interrogation by finding that “by association, by general conversation, or both, Henry developed sufficient confidence in Nichols that Henry bared his incriminating secrets to an undisclosed paid informer.” (Italics added) In effect, what the majority is saying is that a defendant’s voluntary incriminating admissions become the product of an interrogation, as that term is defined in Brewer, merely because the person who hears the voluntary admission is an “undisclosed paid informer” in whom the defendant “by association” has developed a “confidence” that the person will keep his secret.

The primary element of this-definition of “interrogation” is apparently the “undisclosed” or “surreptitious” character of the government informer.¹⁰ But Brewer made it quite plain that the whether the confession or damaging admission had been “elicited surreptitiously” was “constitutionally irrelevant.”¹¹ And this is the way Brewer has been interpreted by all the commentators.¹² Moreover, it was so applied in the recent case of United States v. Hearst (9th Cir. 1977) 563 F.2d 1331, 1348, cert. denied 435 U.S. 100, 98 S.Ct. 1656, 56 L.Ed.2d 90. If, on the other hand, the language of the majority opinion in its critical conclusion represents a general condemnation, on constitutional grounds, of the use of “undisclosed” undercover agents and informers, paid or unpaid, and the infiltration of such agents, — if their “undisclosed” character is the critical point in the majority opinion’s holding of constitutional invalidity — it flies straight into the teeth of repeated decisions of the Supreme Court finding that the use of such undercover agents and informers presents no constitutional violation. The use of informers, whether voluntary or paid, has never been found to be reprehensible, or, to quote a leading case, “as a deprivation of due process of law based on the notion that such practice is ‘unfair’ or ‘offend[s] those canons of decency and fairness which express [our] * * * notions of justice.’”¹³ Indeed, in a case last year which originated in this Circuit, the Court spoke approvingly of “the value it [undercover policework] often is to effective law enforcement.” Weatherford v. Bursey (1977) 429 U.S. 545, 557, 97 S.Ct. 837, 844, 51 L.Ed.2d 30. For other recent cases finding no constitutional taint attaching to undercover activities by the police, see United States v. Russell (1973) 411 U.S. 423, 432, 93 S.Ct. 1637, 36 L.Ed.2d 366 and United States v. White (1971) 401 U.S. 745, 752, 91 S.Ct. 1122, 28 L.Ed.2d 453. These authorities simply confirm the conclusion that the use of undercover agents, or “secret informers,” does “not violate [the defendant’s] Fourth, Fifth or Sixth Amendment rights.”¹⁴

If the heart of the crucial rule promulgated by the majority, however, is that the association as a cellmate creates such a feeling of “confidence [in a defendant]” as to induce him to “bare his incriminating secrets” to the undisclosed paid informer-cellmate as to make it a constitutional violation to admit into evidence other “incriminating secrets,” it is effectively refuted by the ruling of the court in Hoffa v. United States (1966) 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374, that the Constitution affords no protection to “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it,” even when that person is an “undisclosed informer.” In that case, the informer had insinuated himself into the defendant’s confidence by representing himself as a long-time friend and associate anxious to aid in the defendant’s defense. This principle in Hoffa was followed in Fioravanti, in which an undercover agent infiltrated the criminal group, was arrested with the group, and while both the defendant and the undercover agent were “confined [together] in the bull pen,” the defendant, who “thought that he was conversing with a fellow partner in crime, not a policeman,” made incriminating statements.¹⁵ The court had no hesitancy in finding the testimony of the undercover agent about the incriminating statements admissible in that case. And the ruling in that case is similar in many respects to our own case of United States v. Dowdy (4th Cir. 1973) 479 F.2d 213, 229-230, cert. denied 414 U.S. 823, 866, 94 S.Ct. 124, 38 L.Ed.2d 56, reh. denied 414 U.S. 1117, 94 S.Ct. 851, 38 L.Ed.2d 744. There the person engaged in a bribery scheme with the defendant turned into an FBI informer. As a result of his association in crime with the defendant, he had established a relationship under which the defendant felt he could talk freely with him without fear of repetition. We found no constitutional bar to the admission of the incriminating statements of the defendant. In United States v. White (1971) 401 U.S. 745, 751, 91 S.Ct. 1122, 1125, 28 L.Ed.2d 453, the incriminating statement was made to “a police agent who concealed] his police connections,” but no invalidity was found in the admission of the undisclosed “police agent’s” statement.

In short, there is no case, so far as I can find, which makes any distinction on grounds of constitutional admissibility between incriminating statements testified to by secret informers and by private individuals. Not even the dissenting opinion in Miller v. California, which incidentally is the only authority cited by the majority opinion in support of its ruling, makes such a distinction. There is no reason to assume that an incriminating statement is any less reliable or trustworthy, if made to an undisclosed informer or undercover agent than if made tó a private individual and there is no basis for treating the two situations differently for purposes of admissibility.

I submit that for the reasons given the basis upon which the majority opinion rests its conclusion is untenable, however it may be viewed, and is contrary to authority. As a matter of fact, there are two recent decisions which clearly cannot be reconciled with either the reasoning behind the majority opinion or the result reached in it. The first of these is United States v. Hearst, supra, 563 F.2d 1331. In Hearst, the conversation of the defendant with a prison visitor, unknown to her, was monitored and recorded “surreptitiously” by the prison authorities. This was done because of the jail’s policy of monitoring conversations in “very publicized cases or high security problems.” ¹⁶ The Court emphasized that there was no evidence the visitor had “engaged [the defendant] in the conversation later used against her.” The defendant, however, argued that the “deliberate, secret listening”¹⁷ — that is, the “surreptitiously obtaining” — without the presence of counsel violated the defendant’s Sixth Amendment rights as established by Massiah. In effect, the situation was analogous factually to this case and the position taken by the defendant in that case was similar to that taken by the defendant here. The Court, however, dismissed the claim, stating at p. 1348:

“The Supreme Court in Brewer v. Williams, * * * recently interpreted Massiah in a manner directly opposed to appellant’s contention. In Brewer, the Court stated in unambiguous terms that ‘no such constitutional protection [of the right to assistance of counsel at the time the defendant made the incriminatory statements] would have come into play if there had been no interrogation.’ * * Relevant to appellant’s argument that by secretly listening to incriminating statements the government violated the rights defined in Massiah, the Court stated: ‘That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant . . . Rather, the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.’ * * * (emphasis added; citations omitted). Thus, under Massiah, as interpreted by Brewer, there was no violation of appellant’s Sixth Amendment right to the assistance of counsel because there was no interrogation of her — either formally or surreptitiously — by the government.” (citations omitted)

There is no way to distinguish Hearst from this case. The challenged statements were procured secretly and surreptitiously in both cases. In neither case had there been “interrogation,” as that term was used in Brewer and Massiah. Neither Nichols in this case nor Tobin in Hearst had engaged the defendant in conversation. It has been suggested that there may be a difference between a paid informer reporting a face-to-face admission and testimony from a paid government employee who surreptitiously, through the use of electronic surveillance, secures the incriminating information and that such difference distinguishes this case from Hearst. Wilson v. Henderson (2d Cir. 1978) 584 F.2d 1185, 1191, however, gave what appears to me to be the conclusive answer to this suggestion:

“Furthermore, the admission of an in-custody statement voluntarily made to an informant seems less egregious than the use of a statement intercepted by an electronic eavesdropping device as was upheld in United States v. Hearst, * *. When a defendant makes a completely unsolicited, incriminating remark in a face-to-face encounter with an informant, he knowingly assumes the risk that his confidant may ultimately prove to be untrustworthy. In an illegal search and seizure case the Supreme Court stated:

“ ‘[n]either this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.

Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).’ ”

Wilson v. Henderson is even more directly in point. In that case the defendant’s cellmate agreed “to act as an informant.” He was “instructed not to inquire or question, but to keep his ears open for information * * *. The circumstances under which the incriminating statement of the defendant was made are thus described in the opinion:

“Initially, Wilson (the defendant) repeated to Lee (the cellmate-informer) the same version of the facts that he had related to Cullen (the investigatory officer). Lee’s only comment was that the story did not sound too good. By the end of the third day, Wilson made an auricular confession to complicity in the robbery and murder.” ¹⁸

The defendant claimed that this incriminating statement “was improperly admitted at trial in violation of his Sixth Amendment right to counsel under Massiah v. United States, * * * .”¹⁹ It is evident that factually this case is on all-fours with our case and that the legal issue is precisely the same. In that case, the Court held, contrary to the majority opinion in this case, that “where Lee did not interrogate Wilson, nor in any way attempt to deliberately elicit incriminating remarks, the rule of Massiah [had] not been transgressed.”²⁰ With particular reference to the informer’s presence as a cellmate, the Court said (p. 1191):

“Nor is the fact that the informant was placed in Wilson’s cell under surreptitious circumstances a distinguishing point in this case. This court has repeatedly held that a defendant’s voluntary, incriminating statements made to a person known by the defendant to be a government officer are properly admissible under Massiah. United States v. Garcia, [377 F.2d 321 (2nd Cir.)]; United States v. Gaynor, 472 F.2d 899 (2nd Cir. 1973); United States v. Barone, 467 F.2d 247 (2nd Cir. 1972); United States v. Maxwell, 383 F.2d 437 (2nd Cir. 1972) cert. denied 389 U.S. 1043, 88 S.Ct. 786, 19 L.Ed.2d 835 (1968); United States v. Accardi, 342 F.2d 697 (2nd Cir. 1965) cert. denied 382 U.S. 954, 86 S.Ct. 426, 15 L.Ed.2d 359 (1965). Ostensibly, comparable statements made to undercover agents should receive similar treatment because the fact that an incriminating statement is received surreptitiously or otherwise is constitutionally irrelevant. Brewer v. Williams, 430 U.S. at 400, 97 S.Ct. 1232.”

Certainly, there can be no distinction drawn between this case and Wilson. In fact, if anything, the facts in that case were more favorable to the defendant’s claim than are the facts in this ease. Here, the government agent knew only that Nichols was in the same prison unit as the defendant but, unlike the officer in Wilson, he did not know that the defendant and Nichols were cellmates. In Wilson it seems the informer was actually placed in the cell with the defendant with the knowledge, if not at the instance, of the investigating officer. That is not true in this case.

The Court in Wilson declared that the conduct of the government in that case was not “the type of reprehensible police behavior which the courts feel compelled to discourage. The instructions to Lee suggest a conscious effort on Cullen’s part to guard Wilson’s constitutional rights while pursuing a crucial homicide investigation. His directions, ‘Don’t ask questions; just keep your ears open,’ suggest familiarity and attempted compliance with, not circumvention of, the principle of Massiah. Under these circumstances, exclusion of Wilson’s confession to Lee would serve no useful purpose. Accordingly, we are of the opinion that there was no infringement of Wilson’s Sixth Amendment right to the assistance of counsel.”²¹ That is precisely this case and I suggest we should express the same view here as did the Court in Wilson.

In sum, I think Brewer plainly declares that without interrogation there is no violation of Massiah. This is the construction given Brewer in all the comments on that case; it is the construction given it by two Circuit Courts of Appeals. The only authority cited by the majority opinion in contradiction is a dissenting opinion filed years before Brewer, written by one of the dissenters in Brewer. Without the slightest evidence of any interrogation of the defendant by Nichols in connection with this crime, the majority finds interrogation merely by the presence of the informer in the cell with the defendant. Presence, whether surreptitious or not, does not constitute interrogation within Brewer. I dissent.

1 . 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

2 . 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

3 . 430 U.S. at 400-01, 97 S.Ct. at 1240.

4 . 430 U.S. at 410, 97 S.Ct. 1232; Note, 38 La.L.Rev. 239, 244 (1977).

5 . 430 U.S. at 400, 97 S.Ct.-1232.

6 . 430 U.S. at 412, 97 S.Ct. at 1246.

7 . The suggestion that in Massiah the only action of the informer, inducing the confession by the defendant, was that he was simply present is rebutted by the citation in note 2 of the majority opinion, which quotes the language of the Court of Appeals in Massiah, 307 F.2d 62, 66 (2nd Cir. 1962) indicating “that the co-defendant had solicited information about the pending case.” Actually, the informer in Massiah deliberately engaged Massiah in conversation for the sole purpose of eliciting incriminating statements in order that the police might monitor them on a hidden radio. 377 U.S. at 202-203, 84 S.Ct. 1199.

8 . 430 U.S. at 440, 97 S.Ct. at 1200 (Blackmun, J., dissenting).

9 . See note 7, supra.

10 . This seems to follow from the earlier statement in the majority opinion, based on an opinion dissenting from denial of certiorari in Miller v. California (1968) 392 U.S. 616, 88 S.Ct. 2258, 20 L.Ed.2d 1332, that “[a]n undisclosed government agent may effectively ‘interrogate’ a defendant by simply engaging the defendant in a general conversation * * *(Emphasis added)

11 . 430 U.S. at 400, 97 S.Ct. 1232.

12 . See, Note, The Right to Counsel: An Alternative to Miranda, 38 La.L.Rev. 239, 244 (1977); Note, The Right to Counsel and the Strict Waiver Standard, 57 Neb. L.Rev. 543, 550 (1978).

The full quote in the La.L.Rev. is as follows:

“While slight factual differences exist between the cases, [Massiah and Brewer] the majority resolved the difficulties by stating that whether incriminating disclosures made in the absence of counsel were elicited openly or surreptitiously is constitutionally irrelevant in determining whether the right to counsel had been abridged.”

And it was in support of this point that the plurality opinion .cited McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682, and only to this point. 430 U.S. at 400, 97 S.Ct. 1232.

13 . United States v. Fioravanti (3d Cir. 1969) 412 F.2d 407, 414, n.15, cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88, relying on Hoffa v. United States, 385 U.S. 293 at 310-311, 87 S.Ct. 408, 17 L.Ed.2d 374.

14 . United States v. Fioravanti, supra, at 413, n.15, 412 F.2d.

15 . 412 F.2d at pp. 409 and 413.

16 . 563 F.2d at 1344.

17 . 563 F.2d at 1347.

18 . P. 1187.

19 . P. 1189.

20 . P. 1191.

21 . P. 1191.