U.S. v. Sikora

• Decision Date: 21 July 1980
• Docket Number: No. 79-5189,79-5189
• Citation: 635 F.2d 1175
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glenn L. SIKORA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1175

635 F.2d 1175

UNITED STATES of America, Plaintiff-Appellee, v. Glenn L. SIKORA, Defendant-Appellant.

No. 79-5189.

United States Court of Appeals Sixth Circuit.

July 21, 1980.

Certiorari Denied Nov. 17, 1980.

N. C. Deday LaRene, Detroit, Mich., for defendant-appellant.

James K. Robinson, U. S. Atty., Christopher A. Andreoff, Francis L. Zebot, Asst. U. S. Attys., Detroit, Mich., for plaintiff-appellee.

Before EDWARDS, Chief Judge, LIVELY, Circuit Judge and WISEMAN, ^* District Judge.

ORDER

On receipt and consideration of an appeal in the above-styled case and after consideration of the briefs, record and oral arguments; and

Finding from this record no legal or constitutional basis for appellant's contention that certain incriminating physical and oral evidence should have been suppressed, since appellant at the times concerned was neither in custody (see Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)), nor had adversary proceedings been started against him (see Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 423 (1977)); and

Further finding no abuse of discretion in the District Judge's admission of an otherwise admissible tape recording on the grounds that portions thereof were inaudible; and

Further finding no violation of Rule 11(e)(6) of the Federal Rules of Criminal Procedure, there having been no plea of guilty tendered by appellant, no proposal of such a plea made by the United States, and no proposal to negotiate such a plea made by appellant Sikora; and

Further finding, if the comments made by appellant could be construed as plea negotiations, that the admission of these comments in this trial could be nothing other than harmless error when considered against the totality of the clearly admissible evidence,

Now, therefore, the judgment of conviction is hereby affirmed.

WISEMAN, District Judge, concurring in part and dissenting in part.

I respectfully dissent. I would hold that: (1) Rule 410, F.R.Evid., and its counterpart, F.R.Crim.P. 11(e)(6), bar the government's use of Sikora's statements to Agent Rassey on May 24, 1978; and (2) Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), requires the suppression of the physical evidence obtained by the secret agent Ajoian shortly after May 24, as well as Sikora's incriminating statements elicited and recorded by Ajoian on June 14, 1978. Because the admission of the evidence obtained by Ajoian was harmless beyond a reasonable doubt in regard to Counts Thirteen through Sixteen of the sixteen-count indictment, I would affirm Sikora's convictions on those counts. The error was not harmless in regard to the first twelve counts, however, and Sikora's convictions on those charges should be reversed and remanded.

I.

On July 25, 1978, a federal grand jury in Detroit returned a sixteen-count indictment against the appellant, Glenn Sikora. Eight counts alleged possession with intent to distribute cocaine, while the remaining eight counts alleged the actual distribution of this controlled substance, all in violation of 21 U.S.C. § 841(a)(1). Sikora was convicted of all counts in a bench trial before the Honorable Julian Cook, and was sentenced to eight eight-year terms, to be served concurrently.

For the purposes of this appeal, Sikora's legal problems began on May 24, 1978, when Agent Rassey of the DEA arranged a surprise visit with Sikora in the office of his federal probation officer. (Sikora was on probation for a previous cocaine-related conviction). Rassey's meeting with Sikora had earlier been authorized by Assistant United States Attorney Andreoff at a meeting with Rassey, during which they had discussed the desirability of obtaining Sikora's cooperation with the DEA. (App. 72-73). Agent Rassey, who had been investigating Sikora for some time, informed him that in his opinion, "we had enough evidence to indict and convict him (App. 74)," and that "it would be in his best interest" to cooperate with the DEA. Otherwise, "the chance of him receiving a severe sentence was very possible." (App. 74). At his meeting with Sikora, Rassey, after suggesting to Sikora that it would be in his best interest to cooperate, advised Sikora that he should consult with an attorney. He then told Sikora to take a week to think about cooperation. (App. 77). At this time, Sikora had neither been arrested nor indicted on any charges.

Instead of waiting a week, Sikora, visibly distressed by what Rassey had told him (App. 79-80), went downstairs to Rassey's office after concluding his interview with Probation Officer Briscoe. Sikora wanted to know what type of cooperation the government wanted, and what he would have to do. (App. 79-80). Rassey indicated that he was interested in people dealing in pounds of cocaine, to which Sikora responded, "I've got two or three people or a group of people who offer me pounds; which one do you want?" (App. 80). Rassey stated that he did not want to discuss any names until he was assured of Sikora's cooperation, to which Sikora replied, "I know who you want." Sikora unsuccessfully moved to suppress these statements prior to trial, and he now appeals the lower court's decision to admit these incriminating statements.

After the second meeting with Sikora, Rassey called Edward Ajoian, a long-time friend of Sikora's, who was now cooperating with the DEA in its investigation of the appellant. Ajoian had begun cooperating with the DEA after his own arrest on drug charges in November 1977, and he had already participated in two government-supervised "controlled buys" of cocaine from Sikora. Rassey told Ajoian about his confrontation with Sikora, and asked Ajoian to let him know "if anything happened or if Mr. Sikora said anything." (App. 88). Shortly thereafter, Ajoian had a telephone conversation with Sikora, although it is unclear which of the two placed the call. (App. 99). Sikora told him about his meeting with Rassey, and stated that he wanted to get rid of some scales and other narcotics paraphernalia. At some point over the long Memorial Day weekend following May 24, Ajoian went to Sikora's home and picked up a duffel bag containing the scales. Within "a couple days," Ajoian called Rassey to tell him about the scales and Rassey later paid Ajoian $150 for them.

On June 14, Ajoian went back to Sikora's home to tell him that he had disposed of the scales. Ajoian was "wired" with a body transmitter, and it successfully recorded Sikora's numerous incriminating statements. Sikora moved to suppress both the scales and recorded statements, but that motion was also denied, thereby giving rise to the second issue addressed below.

Prior to June 14, Sikora's attorney, Mr. LaRene, had engaged in discussions with Assistant United States Attorney Andreoff and Agent Rassey about the terms of Sikora's possible cooperation. Sikora ultimately decided not to cooperate, but it is clear that negotiations were still in progress on June 14, the date Ajoian elicited the recorded statements at issue. (App. 91-92).

II.

F.R.Evid. 410 provides that statements made in connection with and relevant to an offer to plead guilty to any crime are not admissible against the person who made them. In the instant case, it is clear that on May 24, the government offered Sikora a plea to reduced charges (or perhaps, no charges at all) in return for his cooperation in netting bigger cocaine dealers. The crucial finding in this case is that the government, through Assistant United States Attorney Andreoff, had initiated the plea bargaining process prior to May 24. At the evidentiary hearing (App. 71-74), Agent Rassey, under direct examination by Andreoff, told of a pre-May 24 meeting in which Andreoff and Rassey discussed their feeling that Sikora

was in a position which (sic) he might be interested in cooperation, that if he did cooperate that if there had been a lot of cooperation that would be valuable to the DEA, and that if he decided to cooperate it would be in his interest and the government's interest for him to decide that before he was formally indicted.

(App. 72-73).

Although this conversation was couched in terms of "cooperation" and apparently did not deal with specific plea proposals, it is clear that Andreoff and Agent Rassey were discussing the initial stages of plea bargaining with Sikora. Surely they did not expect to obtain Sikora's cooperation in return for nothing, and the only thing the government could offer, so far as the record discloses, was a plea to reduced charges (or possibly no charges at all). There is also no doubt that Andreoff authorized Agent Rassey to make the initial overtures to Sikora at the May 24 meeting; as Rassey testified, "(a) fter discussing (it) with you, it was decided that I should meet with Sikora." (App. 71).

The government has argued that Rassey was engaged in "investigation" rather than plea bargaining when he met with Sikora in Probation Officer Briscoe's office, Brief for Appellee 24, but the testimony of Rassey shows beyond any serious doubt that he was engaged in the early stages of negotiation. If Rassey was in fact investigating Sikora on May 24, it is difficult to understand his confidence that Miranda warnings were not necessary during their two meetings on that date. (See App. 75-76; 80-81). To quote Rassey again, "I didn't want to ask him any questions, I just wanted to inform him of his situation, and I wanted him to think about it and make a decision." (App. 76). This is not the essence of investigation; it is, rather, the beginning of plea negotiations, at least in the case when an Assistant United States Attorney has expressly authorized a law enforcement agent to initiate the plea bargaining process. See United States v. Grant, 622 F.2d 308 (8th Cir. 1980). Because this is the situation presented in the instant case, I am convinced that plea...