U.S. v. Danielson

Decision Date24 March 2003
Docket NumberNo. 01-30176.,No. 01-30151.,01-30151.,01-30176.
Citation325 F.3d 1054
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Dennis DANIELSON, Defendant-Appellant. v. United States of America, Plaintiff-Appellant, v. William Dennis Danielson, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Bryan E. Lessley, Office of the Federal Public Defender, Eugene, OR, for the defendant-appellant-appellee.

Jeffrey A. Kent, Office of the United States Attorney, Eugene OR, for the plaintiff-appellee-appellant.

Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CR-99-60035-ALA.

Before GOODWIN, T.G. NELSON and W. FLETCHER, Circuit Judges.

OPINION

WILLIAM A. FLETCHER, Circuit Judge.

In this hotly contested case, William Dennis Danielson was convicted of illegally selling and transporting in interstate commerce a deer taken without a state-issued tag in violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) and 3372(c). Danielson appeals his conviction on the ground that the government violated his Sixth Amendment right to counsel.

The prosecution team in this case deliberately and affirmatively took steps, while Danielson was represented by counsel, that resulted in the prosecution team's obtaining privileged information about Danielson's trial strategy. Members of the prosecution team wrote and retained memoranda containing privileged trial strategy information, as well as recorded, listened to, transcribed, and retained the tapes and transcripts containing the privileged information. In addition, the Assistant United States Attorney in charge of the prosecution retained in his private office memoranda and unredacted transcripts containing the privileged information. None of this material was produced to Danielson or his counsel during pre-trial discovery.

The government's interference with Danielson's attorney-client relationship was neither accidental nor unavoidable, but was rather the result of deliberate and affirmative acts. We therefore hold that if there was prejudice there was a violation of the Sixth Amendment under Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). For a determination of prejudice, we rely on United States v. Mastroianni, 749 F.2d 900 (1st Cir.1984), and Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), to hold that the government has the "heavy burden" of proving non-use of Danielson's trial strategy information. We remand to the district court for an evidentiary hearing for a determination of prejudice under this standard.

We affirm the district court on all other issues.

I. Background

At times relevant to this suit, Danielson operated a hunting guide service in Medford, Oregon. On March 18, 1999, Danielson and five co-defendants were indicted in Oregon district court for violating the Lacey Act. Count One charged Danielson and others, including co-defendant Robert Howard, with illegal sale in interstate commerce of "numerous sets of deer and elk antlers." Count Two charged Danielson with the sale of an illegally taken deer to a hunting client, Billy Lingefelt, and interstate transportation of that deer. Count Three charged Danielson and one of his guides, John McCollum, with sale to a different hunting client, and with accompanying interstate transportation, of two illegally killed deer. The indictment contained six additional counts pertaining to other defendants. Assistant United States Attorney ("AUSA") Jeffrey Kent was in charge of the prosecution for the government. Bryan Lessley, a Federal Public Defender, represented Danielson.

At trial, Danielson's defense to Count One was that he had leased rather than sold the deer and elk antlers in question. Danielson's defense to Count Three was that while it was true that the client in question did not have state-issued tags that would have permitted him to kill deer, Danielson had given specific instructions that the client could not hunt. If anything illegal had been done, it had been done by McCollum or someone else, without Danielson's knowledge. The jury acquitted Danielson on Counts One and Three.

The jury returned a guilty verdict on Count Two. According to the government's evidence at trial, Billy Lingefelt had traveled to Oregon from South Carolina to take part in a combined elk and deer hunt, for which he had agreed to pay Danielson a total of $7000. Lingefelt shot a deer on the second day of the deer portion of the hunt while being guided by one of Danielson's employees, Austin Hall. The wounded deer escaped, and Lingefelt and Hall were unable to locate it. Danielson and Hall guided Lingefelt the next day, when Lingefelt shot and killed another deer. That evening, Hall found the deer that Lingefelt had shot the previous day. Even though Lingefelt had a state-issued tag that permitted him to kill only one deer, Danielson told him that he could keep both deer if he paid Danielson an extra $2500. The district court sentenced Danielson to eighteen months in prison based on the guilty verdict on Count Two.

Before trial but after indictment and appointment of counsel, Wayne Sava, a tenant on Danielson's Oregon property, contacted the Oregon State Police. During his initial meeting with the police, Sava told them he had had a conversation with Danielson in which Danielson had told Sava that he might have to ask Sava to "say [he] saw something [he] didn't." Acting in coordination with AUSA Kent, the police encouraged Sava to continue his conversations with Danielson. They agreed to pay some of Sava's expenses, including his rent, while he gathered information.

At Sava's initial meeting with the police, on December 8, 1999, he was asked what he had already learned from Danielson. Oregon Sr. State Trooper David Owren, who is described by Kent in a post-trial affidavit in the district court as "the primary law enforcement officer in this case," summarized in a December 14 memorandum what Sava said. A checked box at the top of the cover sheet indicates that the memorandum was routed to Kent. The memorandum states, among other things, that Sava had learned that Danielson would rely, as part of his defense strategy, on the existence of a lease agreement (rather than a sale) for the deer and elk antlers: "Sava said that Danielson is always talking about the case that is currently against him saying that the cops don't have anything and that he had a lease agreement.... Danielson said that he had leased the antlers...." The purported lease agreement was the defense used to Count One of the indictment.

On December 22, 1999, Sava tape recorded a telephone conversation with Danielson. In a January 5, 2000 memorandum, Owren summarized the substance of the conversation. According to the cover sheet, this memorandum also was routed to Kent. The memorandum included the following:

Danielson said they got the horn situation. "Did I lease them? Yes I did. What do they got? They got nothing." Danielson said that he leased the antlers, and did not sell them.... Danielson said that if he told the guy up front that he could not sell them, but that it was legal to lease them, there's no problem. Danielson said that was what he's going to prove.

... Danielson said that there was no one in the room that witnessed the lease to Howard. Danielson said that it was just Howard and himself and that it was Howard's word against Danielson's.

Howard was a co-defendant with Danielson in Count One. This part of the conversation elaborates what Danielson had previously revealed to Sava, in a shorter version, about his trial strategy as to Count One: He was going to claim at trial that he leased rather than sold the antlers in question. The memorandum stated further:

Danielson said that John McCollum already pled guilty and that they (the government) were going to try and prove that he (Danielson) aided and abetted them. Danielson said that they got nothing.

McCollum was a co-defendant in Count Three. Danielson's defense to Count Three at trial, consistent with the memorandum, was that he had told McCollum that the clients without a tag could not hunt, and that if anything illegal had been done, it had been done by McCollum or another guide without his knowledge.

On January 13, 2000, Sava tape recorded another telephone conversation with Danielson. Owren sent a partial transcript to Kent on February 14, describing it in his cover memorandum as "transcribed excerpts of the conversation regarding Danielson talking about the upcoming trial." Danielson states several times in the transcript that he does not intend to plead guilty, and that he will rely on the government's obligation to prove its case beyond a reasonable doubt. More specifically, in an apparent reference to Count Three, Danielson indicates that he intends to blame someone else for any illegal acts: "[S]omebody that worked for me does something wrong and they want me to pay the price."

Finally, on January 22, 2000, Sava wore a body wire and recorded a lengthy conversation with Danielson. Owren forwarded the complete transcript to Kent on February 8. In this conversation, Sava questioned Danielson about his trial strategy, and Danielson discussed at length his trial strategy for Count Two (the count on which he was ultimately convicted). Danielson first indicated that he intended to testify at trial:

Sava: Are you going to have time to talk [at trial]?

Danielson: Well, yeah, I'm gonna go to the stand. I mean I'm not gonna be an O.J. Simpson and not say nothing.

Danielson then went on to say that there is no proof that the first deer was ever found. He would say at trial that another deer was found later, but that it was not the deer that had been shot on the second day of the hunt:

I mean if he says I shot at a...

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