United States v. Winston Massiah, Mitchell Anfield, Leonard Royal Aiken and Icky Thorn , 307 F.2d 62 ( 1962 )
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WATERMAN, Circuit Judge. As my colleagues have stated in their respective opinions, I concur with Judge HAYS in reversing the convictions of all of the appellants on the conspiracy count, and I concur with Chief Judge LUMBARD in affirming the conviction of appellant Massiah on each of the substantive counts.
HAYS, Circuit Judge. Judge WATERMAN and I agree that the conspiracy convictions of all the appellants must be reversed because of the failure of the trial court adequately to charge all the elements of the offense. I would, in addition, reverse all four convictions of the appellant Winston Massiah because the admissions upon which the prosecutions were, in part, based were erroneously admitted in evidence at trial, and on this point I dissent from the views of Chief Judge LUMBARD and Judge WATERMAN.
The appellants, along with several others not defendants in the trial below, were indicted for conspiracy to violate sections 173 and 174 of Title 21 United States Code Annotated. In addition Winston Massiah was charged under the same indictment, with three substantive counts relating to narcotics violations under 21 U.S.C.A. § 184a (unlawful possession of a narcotic drug on board a United States vessel), 21 U.S.C.A. §§ 173, 174, and 26 U.S.C. §§ 4701, 4703, 4704(a), 4771(a) and 7237(a) (possession and dealing in narcotics not in original stamped packages).
In his charge to the jury, the trial judge first dealt with the substantive charges against Massiah. In each case he discussed the crime generally and then listed with great clarity and precision the elements that must be found in order to convict, thus unquestionably leaving with the jurors the impression that these listed elements should be the focus of
*70 their consideration. When the trial judge reached the conspiracy charges, he erroneously stated that the conspiracy was charged under the general conspiracy statute, 18 U.S.C. § 371, rather than the conspiracy clauses of 21 U.S.C.A. § 174. While this misconception was not in itself prejudicial, it is the source and the explanation of the errors that followed.1 The trial judge went on to state that the conspiracy alleged in the indictment was a conspiracy to violate sections 173 and 174 of Title 21, and to read the pertinent portions of the statute to the jury. Continuing under his misconception that the conspiracy was charged under the general conspiracy statute the judge then discussed extensively the general rules of the law of conspiracy. In conclusion, he summarized the elements which the jury would have to find as follows :“In order to establish the offense of conspiracy charged in this indictment the evidence must show beyond a reasonable doubt, first, that the conspiracy described was formed and existed at or about the time alleged. Second, that the accused knowingly and wilfully became members of the conspiracy. Third, that one of the conspirators thereafter knowingly committed at least one of the overt acts charged in the indictment on or about the time alleged, at the time and place alleged. And fourth, that such overt act was committed in furtherance of some object or purpose of the conspiracy as charged.”
The trial judge failed cut any point in his charge on the conspiracy count to instruct the jury that knowledge of illegal importation was a necessary element of the conspiracy. And, in addition to what must have been taken by the jury to be an all-inclusive listing of the necessary elements of the crime charged, other statements in the court’s general discussion of the law of conspiracy suggested to the jury that knowledge of importation was not necessary:
“One may become a member of a conspiracy without full knowledge of all the details of the conspiracy or of all of the conspirators.
“To participate knowingly and wilfully means to participate voluntarily and understandably and with specific intent to do some act which the law forbids, or with specific intent to fail to do some act which the law requires to be done; that is to say, to participate with bad purpose either to do bad or to disregard the law. So if a defendant or any other person with understanding of the unlawful character of a plan intentionally encourages, assists, advises, for the purpose of furthering the undertaking or scheme, he thereby becomes a knowing and wilful participant in the scheme, a conspirator.” (Emphasis supplied.)
Thus, the court charged under the wrong statute (18 U.S.C. § 371) and in so doing omitted to charge, indeed rejected the idea, that the jury must find that the drugs were imported to the knowledge of each defendant in violation of law. Judge WATERMAN and I find no justification in law or logic for the assertion that this charge was saved by the court’s earlier recital of section 173 or -by the proper charge on the count charging Massiah with a substantive violation of sections 173 and 174 of Title 21. In view of the charge as a whole, in which the essential elements of each offense were carefully enumerated for the jury, it must be assumed that the jury relied on the court’s listing of the ele-
*71 merits, and. did not consider additional elements provided by their own interpretation of the elements involved in a conspiracy violation of section 174, a question so complex that it has recently evenly divided this court. United States v. Santore, 290 F.2d 74 (2d Cir. 1960) (in banc). Considering the charge as a whole, Judge WATERMAN and I are convinced that the jury could not have had the slightest idea that they must find knowledge of importation in order to convict under the conspiracy count.In a criminal case, the defendant is entitled to have the jury instructed on all the elements that must be proved to establish the crime charged. United States v. Gillilan, 288 F.2d 796 (2d Cir.), cert. denied, Apex Distributing Co. v. United States, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961); Kelley v. United States, 107 U.S.App.D.C. 122, 275 F.2d 10 (1960).
In the present case, the appellants raised no objection to the charge as given, see Rule 30, Federal Rules of Criminal Procedure, but the omission to charge an element of the offense is “plain error,” see Rule 52(b), requiring reversal even if the point was not raised below. Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Levy, 153 F.2d 995, 998-99 (3d Cir. 1946); Williams v. United States, 76 U.S.App.D.C. 299, 131 F.2d 21 (1942). “In a criminal case a court should instruct on all essential questions of law involved in the case, whether requested or not.” Kreiner v. United States, 11 F.2d 722, 731 (2d Cir.), cert. denied, 271 U.S. 688, 46 S.Ct. 639, 70 L.Ed. 1152 (1926); see Morris v. United States, 156 F.2d 525, 527, 169 A.L.R. 305 (9th Cir. 1946). In United States v. Noble, 155 F.2d 315 (1946), the Third Circuit stated the governing considerations:
“We think it is self evident that a jury cannot perform its duty of determining the guilt or innocence of a defendant accused of a crime unless they know the essential elements of the crime which he is alleged to have committed. We think it equally self evident that the only appropriate source of that knowledge is the trial judge, whose traditional function has always included that of instructing the jury upon the law. It was because of the failure of the trial judge to give this necessary guidance to the jury that we recently reversed the judgment of conviction in United States v. Levy, 3 Cir., 1946,153 F.2d 995. We deemed the error so fundamental that we took note of it even though the defendant had not requested the instructions.” 155 F.2d at 316-17.
“[W]here the error is so fundamental as not to submit to the jury the essential ingredients of the * * * offense * * it is necessary to take note of it on our* own motion.” Screws v. United States, supra, 325 U.S. at 107, 65 S.Ct. at 1038.
Although there concededly was sufficient evidence in this case from which the jury could find or presume knowledge of illegal importation, this provides no ground for assuming that it would have done so had the issue been presented to it.
As Judge WATERMAN concurs in this portion of my opinion, the conspiracy convictions are reversed.
On July 20, 1959, sometime after his arrest, appellant Massiah was indicted with Jesse Colson on three counts, charging substantive and conspiracy violations of 21 U.S.C.A. § 184a and conspiracy in violation of 21 U.S.C.A. §§ 173, 174.
2 *72 On July 22, having previously retained counsel, Massiah, along with Colson, pleaded not guilty and was released on bail. Thereafter, without Massiah’s knowledge, Colson decided to cooperate with the government. On November 19, 1959 a customs investigator, Finbarr Murphy, placed a transmitter in Colson’s car with Colson’s knowledge and instructed him to invite Massiah to take a ride with him in the car and to engage Massiah in conversation relating to the alleged crimes. Murphy, who was in another car, was able to pick up this conversation. At trial, he testified to certain admissions that he was able to overhear in this manner. The content of the statements is outlined in Chief Judge LUMBARD’S opinion.Massiah’s counsel objected, without success, to the admission of Murphy’s testimony. That contention is renewed on appeal, in part on the ground that, when a defendant under indictment after preliminary examination has retained counsel, direct contact between the government and the defendant violates defendant’s right to counsel.
In Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), the Supreme Court reversed a state criminal conviction on the ground that a confession coerced as a matter of law had been received in evidence. Justices Black, Douglas, Brennan and Stewart, concurring, strongly expressed the view that the confession was inadmissible and the conviction should be reversed without regard to the element of coercion because the police interrogated the defendant after his indictment (but before his preliminary examination) in the absence of counsel. 360 U.S. at 324, 326, 79 S.Ct. at 1207, 1209. Although this view was expressed by only four Justices in Spano, the question was left open by the others who voted for reversal on other grounds. Considering that a stricter standard of conduct is imposed by the federal courts on federal law enforcement officials, see McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), it is reasonable to assume that federal officers must deal through and not around an attorney retained by a defendant under indictment.
Since Spano, the New York Court of Appeals has adopted a strict rule rendering inadmissible all statements obtained from an accused after indictment where not made in the presence of counsel, People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961); People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825 (1960). Indeed, that court has recently extended the rule to include statements made by an accused after arraignment but before indictment. People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 (1962).
3 “[T]he initiation of a criminal action against the accused by the finding of an indictment operates to impose certain disabilities upon the People. The People would manifestly not be permitted at the trial to call the defendant to the witness stand to establish their case through his testimony. * * * By the same token, they may not circumvent the defendant’s privilege against self incrimination by introducing into evidence inculpatory statements obtained from him (following indictment) at a private examination prior to the trial, * * * ” People v. Waterman, supra, 9 N.Y.2d at 566, 216 N.Y.S.2d at 75, 175 N.E.2d at 448.
Certainly, if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. In this case, Massiah was more seriously imposed upon than the defendants in any of the cases cited above because he did not even know that he was under interro
*73 gation by a government agent. Cf. Spano v. New York, supra, 360 U.S. at 323, 79 S.Ct. at 1207.The admissions were introduced generally against Massiah on all four counts. Because the statements were inadmissible, I would reverse Massiah’s conviction on all counts. It is irrelevant that other substantial evidence of guilt was introduced at trial. It is not for us to speculate on the course the jury would have taken had these damaging admissions not been before them. Spano v. New York, supra, 360 U.S. at 324, 79 S.Ct. at 1207; Payne v. Arkansas, 356 U.S. 560, 568, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).
I would reverse the substantive convictions of Massiah, as well as all the conspiracy counts, for new trials.
. An additional indication of tlie trial court’s misconception, although again not in itself prejudicial for the reasons stated in Chief Judge LUMBARD’S opinion, was the failure of the court to mention the presumption arising from possession. It is, of course, irrelevant that the jury must have found possession, in at least some instances, because knowledge of importation is not automatically presumed as a matter of law from possession, but is an inference that the jury is permitted to make. United States v. Mont, 306 F.2d 412 (2d Cir. 1962).
. It is of no moment, as far as the admission of Massiah’s statements is concerned, that the indictment under which Massiah was charged in July, 1959 was superseded by a broader indictment, including additional counts against Massiab and additional defendants, that was made possible in part by the information surreptitiously obtained from Massiah.
. In Meyer, the court indicated that the rule applies oven when a defendant is informed of his right to have counsel present and makes no request for his attendance.
Document Info
Docket Number: 27125_1
Citation Numbers: 307 F.2d 62, 1962 U.S. App. LEXIS 4378
Judges: Lumbard, Hays, Waterman
Filed Date: 7/27/1962
Precedential Status: Precedential
Modified Date: 11/4/2024