U.S. v. Taylor

• Decision Date: 08 September 1986
• Docket Number: No. 85-1758,85-1758
• Citation: 800 F.2d 1012
• Parties: , 21 Fed. R. Evid. Serv. 1045 UNITED STATES of America, Plaintiff-Appellee, v. Anthony TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1012

800 F.2d 1012

55 USLW 2247, 21 Fed. R. Evid. Serv. 1045

UNITED STATES of America, Plaintiff-Appellee, v. Anthony TAYLOR, Defendant-Appellant.

No. 85-1758.

United States Court of Appeals Tenth Circuit.

Sept. 8, 1986.

John E. Green (William S. Price, U.S. Atty., and Stephen J. Koratash, Asst. U.S. Atty., with him on the brief), First Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Scott W. Reed, Salt Lake City, Utah, for defendant-appellant.

Before BARRETT, McKAY and MOORE, Circuit Judges.

BARRETT, Circuit Judge.

Defendant-Appellant, Anthony Taylor, appeals from a jury conviction on two counts of violating 18 U.S.C. Sec. 2113(a) and (d), bank robbery and assault on a person while committing a bank robbery. The jury convicted Taylor of an armed robbery of the Crown Heights Branch of the Local Federal Savings and Loan Association in Oklahoma City, Oklahoma, on January 4, 1985, and an armed robbery of the Communications Federal Credit Union in Oklahoma City, Oklahoma, on December 13, 1984. The district court entered an Order of Judgment and Commitment on May 16, 1985. A Notice of Appeal was filed by Taylor on May 20, 1985. Jurisdiction is vested in this court pursuant to 28 U.S.C. Sec. 1291.

Defendant Taylor raises four issues on appeal: (1) whether the district court erred in allowing the testimony of Wayne Nave into evidence in violation of Taylor's Sixth Amendment right to counsel; (2) whether the district court erred in denying Taylor's Motion to Sever the trial on the counts in the indictment; (3) whether the conduct of the Government's attorney amounted to prosecutorial misconduct requiring a new trial; and (4) whether the conduct of Taylor's trial counsel constituted ineffective assistance of counsel?

I.

A.

Taylor contends that the admission and use of incriminating statements he made to a Government informant about the armed robberies for which he was on trial, violated his Sixth Amendment right to counsel. The Government contends that the informant was not a Government agent and therefore the protections afforded under the Sixth Amendment do not apply. We agree with the Government that under the facts and circumstances of this case, the informant was not a Government agent. We hold that Taylor's Sixth Amendment right to counsel was not violated and the informant's testimony at trial regarding Taylor's incriminating statements was properly admitted.

The relevant facts regarding Taylor's Sixth Amendment claim are not in dispute. Taylor was indicted by a grand jury on February 5, 1985, on two counts of armed robbery. Following his indictment, and while he was awaiting trial in the Oklahoma County Jail, Taylor encountered Wayne Nave with whom he previously had been employed. Nave testified that Taylor initiated a conversation in which he said "that he had some bank robbery charges and that he needed an alibi because he felt as though he could beat the cases, and that he really wasn't worrying about one of the robberies but he needed a good alibi for January 4th because of the robbery at the local Federal Savings and Loan on Western." (R., Supp. Vol. I, p. 144.)

After this encounter, and at Nave's request, an agent of the Federal Bureau of Investigation (FBI) visited Nave at which time Nave related the substance of Taylor's statements. Taylor was subsequently placed in the same cell with Nave. While they were cellmates, Taylor admitted to Nave that he robbed both financial institutions and related the details of those robberies.

Nave testified on direct and cross-examination that he hoped to get preferential treatment as a result of his cooperating with the Government in this case. According to Nave, however, no promise or guarantee of benefits was made by the Government:

A. [T]here was no plea bargain or anything involved in me giving the information. But I really wanted to know what type of institution I was going to myself and whether or not I would be here of close [sic] to my family.

Like I said, there was no deal made with the government for me to give this information.

Q Where is your family located?

A In Los Angeles, California.

Q Were you hoping that, or did you ask this information, the fact that you're cooperating with the government be passed along to the presentence investigators in your case?

A Yes.

Q Were you hoping that this information might be taken into account by the sentencing Judge?

A Yes, I was, due to the fact that me testifying at this trial.

Q So, in other words, you're hoping it would help you out.

A Yes.

Q You've got three prior bank robberies; is that correct?

A Yes.

Q And does the F.B.I. indicate to you, or any other federal official indicate to you whether or not they would pass the information of your cooperation along to the appropriate people?

A They said that the information would be made note of and it would be passed on. But as far as the guarantee of anything being done as a result of it, there wasn't one.

Q Because--is it your testimony here today that no promises have been made to you of any type or form?

A No.

Q They have not.

A No.

(Id. at 145-46.)

Taylor's Sixth Amendment claim is based on United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). There is no dispute that Taylor's Sixth Amendment right to counsel had attached because Taylor's statements were made to Nave after Taylor was indicted. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972). There is also no dispute that Taylor properly sets forth the Sixth Amendment issue on appeal under Henry and Massiah: "In the instant case the court is confronted with the question of whether or not Wayne Nave was a government agent who deliberately illicited incriminating statements from Anthony Taylor." (Brief of Appellant, pp. 4-5.) Therefore, in order to find a violation of a defendant's Sixth Amendment right to counsel, a court must find that defendant's statements (1) were made to a Government agent, and (2) were deliberately elicited.

We hold that Nave was not a Government agent. We also hold that the protections of the Sixth Amendment right to counsel enunciated in Massiah and Henry are inapplicable when, after the right to counsel has attached, statements by a defendant are made to an individual who is not an agent for the Government, although he may be a Government informant. This is so regardless of whether the statements were "deliberately elicited." See, e.g., Thomas v. Cox, 708 F.2d 132, 136 (4th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983); United States v. Metcalfe, 698 F.2d 877, 882-83 (7th Cir.), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 814 (1983); United States v. Calder, 641 F.2d 76, 78-79 (2d Cir.), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981).

We have been unable to find any bright line test for determining whether an individual is a Government agent for purposes of the Sixth Amendment right to counsel. See e.g., Thomas v. Cox, supra at 136. This determination must be made under the facts and circumstances of each case, considering factors articulated by certain courts which have reviewed the issue of whether an individual is a Government agent. The Supreme Court in Henry implicitly held that a Government informant was an agent because he was paid and acted pursuant to Government instructions. 447 U.S. at 270, 100 S.Ct. at 2186. In United States v. Calder, supra at 78-79, however, the court held that no agency was created because the Government and defendant's cellmate who acted as a Government informant did not enter into any agreement. Although the cellmate's attorney had discussed with the United States Attorney the possibility that his client might cooperate, no cooperation agreement was entered into until after the incriminating statements were made by defendant. Id. Absent any express or implied agreement with the Government, the court held that Calder's cellmate was not a Government agent and Sixth Amendment protections were therefore not invoked. See also, United States v. Surridge, 687 F.2d 250, 254-55 (8th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 614 (1982).

In United States v. Franklin, 704 F.2d 1183, 1189-90 (10th Cir.), cert. denied, 464 U.S. 845, 104 S.Ct. 146, 78 L.Ed.2d 137 (1983), we held that under Henry and Massiah, Franklin's right to counsel was not violated when his statement to a Government informant was neither deliberately elicited nor made to a Government agent. After he was arrested, Franklin contacted his former wife and admitted murdering two joggers. Unknown to Franklin, his former wife had consented to having her telephone tapped by the FBI. Because Franklin's former wife was neither paid nor instructed by the Government, factors which the Supreme Court found significant in Henry, supra 447 U.S. at 270, 100 S.Ct. at 2186, she was held not to have acted as a Government agent. United States v. Franklin, supra.

In United States v. Geittmann, 733 F.2d 1419 (10th Cir.1984), we considered several factors to conclude that an informant was a Government agent. In Geittmann, the informant was a co-defendant who entered into a cooperation agreement with the Government to make tape recordings of conversations between himself and Geittmann. The informer began taping the conversations at the request of the Government. Government officials led the informant to believe that his cooperation would be to his advantage. Although the informer was not paid for his services, we held that under these circumstances he was a Government agent, id. at 1427, and distinguished the case from one in which independent parties come to the police with unsolicited incriminating information provided by defendants. Id., citing United States v. Franklin, supra.

Under the facts of this case, we hold that Nave was not a Government agent. No agreement...