807 F.2d 262 (1st Cir. 1986), 86-1183, United States v. Cole

Docket Nº:86-1183.
Citation:807 F.2d 262
Party Name:UNITED STATES of America, Appellee, v. Patrick COLE, Defendant, Appellant.
Case Date:December 11, 1986
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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807 F.2d 262 (1st Cir. 1986)

UNITED STATES of America, Appellee,

v.

Patrick COLE, Defendant, Appellant.

No. 86-1183.

United States Court of Appeals, First Circuit

December 11, 1986

Argued Sept. 5, 1986.

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Robert J. Wheeler with whom John C. McBride and Francis T. O'Brien, Jr. were on brief for defendant, appellant.

S. Theodore Merritt, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., was on brief for appellee.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

In this rather bizarre case, defendant-appellant Patrick Cole appeals a denial of his motion to dismiss the indictment and motions to suppress the fruits of wiretap evidence and evidence seized from his home. Cole was charged in a multiple count indictment with conspiracy to possess and possession of cocaine with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1) and Sec. 846. The indictment also charged Cole with three counts of the unlawful use of a telephone to facilitate the commission of a drug conspiracy in violation of 21 U.S.C. Sec. 843(b). The indictment was based primarily on information obtained from a duly authorized wiretap of Cole's telephone. There were three other codefendants, only one of whom, Joan Adamson, figures in this appeal.

The basis for the motions to dismiss the indictment and suppress evidence was that one of the investigating officers, Detective Charles Bradley, had engaged in a romantic affair with codefendant Joan Adamson, Cole's live-in companion, both before and after the indictment. Both Bradley and Adamson admitted that they became romantically

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entangled during the preindictment investigation of defendant and that their affair continued after defendant and Adamson were indicted. After the extent of the affair became known to the prosecutor, the charges against Adamson were dropped.

The district court held a Franks v. Delaware 1 hearing to determine whether the failure to disclose the affair between Detective Bradley and Adamson in the wiretap application vitiated the wiretap. It found that it did not. After the district court denied defendant's pretrial motions, he entered a plea of guilty conditioned on his right to appeal the adverse rulings.

The issues before us are whether the affair deprived defendant of due process, interfered with his right to counsel, vitiated the need for a wiretap on defendant's phone and poisoned all the fruits evidence resulting from the wiretap. Defendant also claims that the court erred in limiting the cross-examination of Bradley on the length of the affair.

I. THE FACTS

Sometime in 1982 or 1983, the Northboro Massachusetts Police Department began to suspect that defendant was a drug dealer. On April 6, 1984, Detective Bradley executed a search warrant on defendant's residence in Northboro. As a result, charges of illegal possession of weapons and cocaine were filed against defendant in the Westboro District Court. Defendant, who had been a part-time police officer on the Northboro Police Department in 1976, was given a two-year suspended sentence in return for his promise to cooperate with Bradley on other drug investigations. Defendant himself continued to be under investigation. In January, 1985, an investigation into cocaine trafficking by defendant was commenced by the Drug Enforcement Administration (DEA) in conjunction with police officers in the Northboro area, including Detective Bradley.

As part of the investigation, Bradley telephoned defendant at Patrick's Body Shop. Defendant's residence, which he shared with Adamson, was located over the Body Shop. When defendant was not at home, Bradley talked to Adamson who took messages for defendant. Bradley and Adamson became telephone acquaintances. In the middle of April, 1985, Bradley asked Adamson to meet him in person, partially because he had enjoyed talking to her on the phone and also because he hoped that she would be a source of information about defendant's drug dealing activities. Bradley informed his superiors and fellow officers that he was going to try to cultivate Adamson to obtain information about defendant. Adamson knew Bradley was a detective investigating defendant. She told him repeatedly that she did not know anything about drug activities by the defendant and that she would not cooperate in the investigation of defendant.

Early in May, 1985, the relationship between Bradley and Adamson culminated in sexual relations. Thereafter, sexual liasons took place from time to time in defendant's home when defendant was away. Bradley estimated that he was in defendant's residence from twelve to fifteen times. While there, he had an opportunity to observe defendant's sophisticated security system which consisted of surveillance cameras, TV video monitors and a sequential relay board. Bradley testified that he never saw any drugs or drug related materials at defendant's home.

As the affair continued, Bradley and Adamson expressed their love for each other. This did not deter Bradley from inquiring about defendant's drug activities, nor did it change Adamson's insistence that she knew nothing about such activities and would not help Bradley in his investigation. Both stuck to their principles.

In the beginning of August, 1985, DEA Special Agent Kathleen Bennett, with whom Bradley had been working, began preparing an affidavit for a Title III wiretap on defendant's phone. Bradley then

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stopped seeing or contacting Adamson. He did not tell Agent Bennett of his affair with Adamson and it was, therefore, not included in the wiretap application. An application for an order authorizing a pen register on defendant's telephone was made and granted on August 19, 1985. On September 9, an application was made for an order authorizing a wiretap on defendant's phone; it was granted the same day. Agent Bennett's wiretap applications included a great deal of information supplied by Bradley.

On September 24, Agent Bennett submitted an application for a search warrant of defendant's residence. The information in the affidavit came from the phone wiretap. The warrant was issued and a seizure of cocaine, scales and other cocaine paraphernalia were seized. Defendant and Adamson were arrested after the execution of the search warrant.

Bradley and Adamson renewed their affair after her arrest and she subsequently became pregnant. Bradley was married throughout this period.

II. THE MOTION TO DISMISS THE INDICTMENT

A. Due Process

The basis of defendant's claim that he was deprived of due process is that Bradley's affair with Adamson was so egregiously improper that it should bar prosecution. He relies on statements, mainly dicta, culled from Supreme Court cases.

The first case on which defendant relies is United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Russell was convicted of manufacturing an illegal substance. He claimed entrapment because a DEA agent supplied him with one of the ingredients. The Court affirmed, finding that since Russell was predisposed to manufacture the drug, there was no entrapment. The language on which defendant relies is:

While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), the instant case is distinctly not of that breed.

Id. at 431-32, 93 S.Ct. at 1642-43. Nor is this case of such a breed. Likewise, we find no help for defendant in Justice Frankfurter's concurrence in Sherman v. United States, 356 U.S. 369, 378-85, 78 S.Ct. 819, 823-27, 2 L.Ed.2d 848 (1958), which is a careful analysis of the basis of the entrapment defense. The instant case simply is not an entrapment case. Defendant equates Bradley's conduct with that of the police in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), which the Court found "shocks the conscience." Id. at 172, 72 S.Ct. at 209. The police in Rochin broke into defendant's home without a warrant, assaulted him, and then took him to a hospital and had his stomach pumped out against his will. Bradley's affair with Adamson cannot be equated with such conduct. 2

We find no grounds for a due process violation of defendant's rights in the affair between Bradley and Adamson. We agree with the district court that there is a real question as to who seduced whom. Indeed, if we take the parties at their words, there was no deliberate seduction by either one; Bradley and Adamson fell in love with each other and entered into sexual relations. This is not an uncommon occurrence in this age or any other. While we do not condone the conduct of Detective Bradley, there was nothing done by him

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that deprived defendant of due process of law.

B. Interference with Defendant's Right to Counsel

The second reason advanced by defendant for dismissing the indictment is that Bradley interfered with defendant's right to counsel. Following the indictment of defendant and Adamson and the imprisonment of defendant, Bradley and Adamson renewed their affair. During this time, Bradley disparaged the attorneys who were representing defendant and Adamson. The district court stated:

Based on the...

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