596 F.2d 857 (9th Cir. 1979), 78-2133, United States v. Glover

Docket Nº:78-2133, 78-1981 and 78-1982.
Citation:596 F.2d 857
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Andrew GLOVER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Marvin Melvin MORROW, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Eugene Leonard WELSER, Defendant-Appellant.
Case Date:May 09, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 857

596 F.2d 857 (9th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Andrew GLOVER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Marvin Melvin MORROW, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Eugene Leonard WELSER, Defendant-Appellant.

Nos. 78-2133, 78-1981 and 78-1982.

United States Court of Appeals, Ninth Circuit

May 9, 1979

Page 858

Daniel F. Cook, Asst. Fed. Pub. Defender, San Francisco, Cal., Roger S. Ruffin, San Francisco, Cal., James F. Hewitt, Federal Public Defender, San Francisco, Cal., and Marilyn Waller, San Francisco, Cal., for defendants-appellants.

Floy Dawson, Asst. U. S. Atty., San Francisco, Cal., Sanford Svetcov, Chief Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Page 859

Before MOORE [*], WRIGHT and CHOY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The defendants were convicted of receiving and concealing stolen property moving in interstate commerce. 18 U.S.C. § 2315 (1976). Glover and Welser appeal the denial of motions to dismiss based on alleged governmental interference with the attorney-client relationship.

Glover also appeals the trial court's determination that he was competent to waive his Miranda rights and stand trial, and that he did in fact waive his rights. All three defendants appeal the court's refusal to admit polygraph test results into evidence. We affirm.

I. FACTS

On October 24, 1977, Victor Nash, a wholesale gem dealer, was robbed of over $2,000,000 in gems as he was transporting his inventory to a gem show in a Seattle department store. Several days later, defendants were arrested in San Francisco and Oakland, California.

  1. Glover.

    Glover was arrested as he and another attempted to sell some of the gems to an undercover agent. Shortly after his arrest, he was advised of his Miranda rights. He told the FBI agents that he was willing to talk, that he had not been involved in the robbery, but that he knew the gems were stolen. The agents did not ask him to sign the standard FBI waiver of rights form until the next day, when they read the form to him again and required him to read it back to them. He read the form aloud with difficulty, requiring assistance in pronouncing some of the words. He then signed the form and made an oral statement.

    The agents reduced the statement to writing and asked him to sign it. He asked if signing it would mean that he was admitting guilt. When told that it would, he refused to sign.

    On October 28, Claudia Wilken, Assistant Federal Public Defender, was appointed as his counsel. She and Assistant United States Attorney Floy Dawson discussed the possibility of giving Glover special consideration if he would cooperate in the recovery of the gems. He rejected the offer because the government was unwilling also to drop charges against a co-defendant. It is undisputed that Wilken did not give permission to the FBI to interview her client.

    On November 2, Agent Robinson arranged for two other agents to question Glover in the absence of counsel. 1 They told him he would be released if he would reveal the location of the gems and testify against his co-defendants. When he asked if his attorney should not be present, the agents responded that she had given her consent to the questioning.

    Soon after the interview had begun, Wilken finished meeting with another client in the same holding cell area and walked past the cell in which the agents were questioning Glover. She denied having given permission for the interview and terminated it. No evidence against the defendants resulted from the meeting. After the agents left, Glover expressed concern that Wilken had "crossed" him.

    At trial, Glover first moved to dismiss the indictment because of the FBI's attempted interference with the attorney-client relationship. The court censured Robinson's conduct 2 and stated that it would have

    Page 860

    suppressed any statements or evidence resulting from the interview. Since no information was obtained, however, the court concluded that dismissal was too extreme a sanction and denied the motion.

    Glover then moved to suppress statements made to the FBI agents after his arrest, alleging that he was mentally deficient, unable to understand the waiver form, and thus incapable of knowingly and intelligently waiving his Miranda rights. Alternatively, he argued that he did not in fact waive those rights. He asserted also that he was incompetent to stand trial.

    The court ordered him to undergo medical examinations and heard expert testimony on his mental condition. 3 Presented with conflicting testimony, the court chose to believe the government's expert and independent evidence that Glover was competent to waive his rights and stand trial. It also concluded he did waive his rights, and denied the motion to suppress.

  2. Welser.

    Welser was arrested by Agent Robinson on October 30. At his arraignment the following day before a United States Magistrate, Welser's appointed counsel argued that his client was suffering from methadone withdrawal and was therefore unable to make a voluntary choice whether to talk to the FBI. The Magistrate issued an order proscribing the FBI agents from discussing the case with the defendant without counsel's knowledge and consent. After Robinson had taken Welser from the courtroom, he told him: "We're the good guys. We're the feds. You can talk to us; if you want to talk to us, we'll listen to you."

    On a motion to dismiss the indictment for interference with the attorney-client relationship, the trial judge again deplored Robinson's conduct but found no prejudice that would warrant dismissal. The motion was denied.

  3. Morrow.

    The sole error alleged by Morrow is the trial court's refusal to admit into evidence the results of a polygraph examination. He is joined in this assignment of error by the other defendants.

    The day after the robbery, Victor Nash took a polygraph test administered by the Seattle Police Department. The report concluded that,

    in the opinion of the examiner he was Attempting deception when he answered "No" to the following relevant questions:

    1) "Concerning the Robbery yesterday did you conspire with anyone to steal those gems and other jewelry?"

    2) "Regarding the theft of the gems and jewelry were you directly involved in that Robbery?" (Emphasis in original.)

    The examiner had prefaced his report, however, with the following comment:

    Before this test was administered it was understood that the subject was not in an ideal state physically or emotionally. He stated that he had gone without sleep since the incident occurred, (Sic ) and that he was "worn out." However, he insisted on taking the examination since he planned to leave Seattle soon to return to his home in San Francisco.

    The examiner also noted that at one point Nash appeared to be angry and that "anger can cause false responses."

    After the trial court considered offers of proof on the motion to admit the results of the polygraph test, it denied the motion.

    Page 861

    II. ISSUES

    We face the following questions:

    1. Should the government's alleged interference with the attorney-client relationship result in a dismissal of the indictments against Glover and Welser?

    2. Was Glover competent to waive his Miranda rights and stand trial, and did he in fact knowingly and intelligently waive his rights?

    3. Should the polygraph test results have been admitted?

    III. DISCUSSION

  4. Interference with the Attorney-Client Relationship.

    Glover argues that Robinson's conduct interfered with his relationship with his attorney, and that the interference amounted to a violation of his Sixth Amendment right to the assistance of counsel. He argues further that, although he experienced no observable prejudice from Robinson's conduct, the error cannot be harmless. Since there was no evidence to suppress, defendant asserts the only way to deter future misconduct by government agents and to correct the injustice to himself is to dismiss the indictment.

    Glover cites two state cases in which courts dismissed the charges after holding that egregious governmental conduct deprived the defendants of the effective assistance of counsel. Commonwealth v. Manning, 367 N.E.2d 635 (Mass.1977); People v. Moore, 57 Cal.App.3d 437, 129 Cal.Rptr. 279 (1976).

    In Manning, after the defendant was arraigned on a drug charge and received appointed counsel, a DEA agent telephoned him at work without the knowledge or consent of his attorney. The purpose of the agent's call was to persuade the defendant to cooperate in undercover investigations of narcotics traffic. Apparently in an effort to convince the defendant to cooperate, the agent made disparaging remarks about counsel and warned that the tactics chosen by counsel would not ensure that the defendant would stay out of jail. When the defendant tried to reach the agent by telephone the following day, he talked instead to another agent who repeated essentially the same message.

    The state trial court condemned the behavior of the DEA agents, but denied the motion to dismiss the indictments. An appellate court concluded that a new trial would be the proper remedy. The Supreme Judicial Court of Massachusetts reversed both courts, holding that the facts of the case required a dismissal of the indictment despite the lack of any explicit showing of prejudice.

    The facts here are clearly distinguishable from those in Manning. The most damaging interference with the attorney-client relationship there was the impression the DEA agents...

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