820 F.2d 474 (1st Cir. 1987), 86-1794, Cinelli v. City of Revere

Docket Nº:86-1794.
Citation:820 F.2d 474
Party Name:Arthur J. CINELLI, Plaintiff, Appellant, v. CITY OF REVERE, et al., Defendants, Appellees.
Case Date:March 20, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 474

820 F.2d 474 (1st Cir. 1987)

Arthur J. CINELLI, Plaintiff, Appellant,

v.

CITY OF REVERE, et al., Defendants, Appellees.

No. 86-1794.

United States Court of Appeals, First Circuit

March 20, 1987

Argued Jan. 7, 1987.

Supplemental Opinion June 11, 1987.

Edward J. McCormack, III, with whom Law Office of Edward J. McCormack, III, was on brief, for plaintiff, appellant.

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Ira H. Zaleznik, with whom, Lewin & Rosenthal, was on brief, for defendants, appellees.

Before BOWNES, Circuit Judge, ALDRICH, Senior Circuit Judge, and GIGNOUX, [*] Senior District Judge.

GIGNOUX, Senior District Judge.

Plaintiff-appellant Arthur J. Cinelli was indicted by a Middlesex County, Massachusetts, grand jury for various offenses stemming from an armed robbery and the shooting of a Medford police officer. Prior to trial, Cinelli filed a motion to dismiss the indictment on the ground that his sixth amendment right to counsel was violated by a custodial interrogation conducted by Detectives Michael Cutillo and Robert Nunez of the Revere Police Department. After an evidentiary hearing, a motion judge of the Superior Court denied the motion. Cinelli was subsequently convicted following a jury trial, and sentenced to twenty to twenty-five years imprisonment. The conviction was affirmed on appeal. Commonwealth v. Cinelli, 389 Mass. 197, 449 N.E.2d 1207 (1983). Cinelli then filed an action under 42 U.S.C. Sec. 1983 (1982) in the United States District Court for the District of Massachusetts against Detectives Cutillo and Nunez and against the cities of Revere and Medford, seeking damages for the alleged violation of his sixth amendment right to counsel. The defendants filed a motion for summary judgment. At the hearing on that motion, Cinelli consented to dismissal of the complaint against the municipalities. The district court, citing United States v. Mastroianni, 749 F.2d 900 (1st Cir.1984), concluded that Cinelli could not establish any violation of his sixth amendment rights and granted summary judgment in favor of Cutillo and Nunez. 1 Cinelli appeals from the order dismissing the action against Cutillo and Nunez. Because our review of the record before the district court shows a genuine issue as to a material fact, the resolution of which requires a trial, Fed.R.Civ.P. 56(c), we reverse the grant of summary judgment.

I.

The Massachusetts motion judge, after consideration of the testimony at the hearing on Cinelli's motion to dismiss the indictment, made detailed written findings of fact and rulings of law, which may be summarized as follows. On May 7, 1981, Cinelli was arrested on charges of armed robbery and assault with intent to murder. On the same day, he was arraigned in the Somerville District Court, where he was represented by court-appointed counsel. On May 8, he appeared at a bail review hearing in the Middlesex Superior Court, represented by retained counsel, who has remained his counsel since that time. Unable to post bail, Cinelli was incarcerated at the Billerica House of Corrections in an isolation section of the facility. Four days later, at approximately 7:15 p.m. on May 12, Detective Cutillo received an anonymous telephone call from a male who indicated that Cinelli wished to speak with him at Billerica. After receiving the anonymous call, Cutillo and Detective Nunez went to Billerica to speak with Cinelli, arriving between 8:30 and 9:00 p.m. The desk officer presented the two police officers with a waiver sheet on which they printed their names. As Cinelli was being taken from his cell and before he arrived at the reception area where Cutillo and Nunez were waiting, Cinelli was presented with the waiver sheet. He was told that two Revere police officers were there to see him, that he did not have to talk with them, and that he was entitled to have his lawyer present if he wished to speak with them. The defendant looked at the waiver sheet for approximately twenty to thirty seconds and appeared to be reading it. He then signed the waiver indicating that he would voluntarily talk to the detectives. At that point he was escorted to the reception area where he met with Cutillo and Nunez.

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Throughout the conversation that followed, Cinelli maintained his innocence, steadfastly denying any involvement in the armed robbery and indicating that he had an alibi. The detectives told Cinelli that the case against him appeared to be strong, that no lawyer would be able to help him, that he would spend up to a year in jail awaiting trial, that he could receive a life sentence if convicted, and that he would benefit by cooperating with the police in identifying other participants in the crime. The detectives also informed Cinelli that if he did not commit the armed robbery, they did not wish to see him convicted, and that if he was not guilty, he should give the detectives any information that could be helpful in establishing his innocence. Cinelli replied that he had friends on the street who were trying to find out who committed the robbery, and identified two of them named Costa and Lightbody. At Cinelli's request, the detectives permitted Cinelli, in their presence, to telephone Costa and Lightbody. He advised them that they could speak to Cutillo if they wished.

At the time of the May 12 conversation, Cutillo and Nunez had reason to believe Cinelli was represented by counsel and knew that he had the right to have counsel present during the interview. The detectives' purpose in visiting Cinelli was to see if he would cooperate with the police investigation, although they went to Billerica believing Cinelli had asked to see them. At some point during the conversation, Cinelli asked where his lawyer was and suggested that his lawyer should be present. The detectives did not know the identity of Cinelli's counsel, and did not attempt to identify or locate Cinelli's attorney before or during the interview.

Based on the foregoing findings of fact, the Massachusetts motion judge concluded: (1) that Cinelli's waiver of counsel prior to talking with the detectives was made "voluntarily, knowingly and intelligently," and hence was effective; and (2) that the conduct of the officers, although reprehensible, did not warrant dismissal of the indictment because Cinelli did not make any incriminating statements during the interview and had shown "no specific evidence of prejudice." 2 In affirming Cinelli's conviction, the Supreme Judicial Court accepted the motion judge's finding that Cinelli was not prejudiced by the detectives' improper conduct and held that there was no error in the denial of the motion to dismiss. 389 Mass. at 207-11, 449 N.E.2d 1207.

II.

The sixth amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." Cutillo and Nunez acknowledge that at the time they interviewed Cinelli, who had been previously charged and arraigned, his right to counsel had attached. See United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984); Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972). They also concede that Cinelli's written waiver of his right to the presence of counsel at the interview was invalid. See Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986); Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378 (1981). And they admit that, despite the written waiver, they unquestionably should have terminated the interview when Cinelli suggested that his lawyer should be present. See Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 484-85, 88 L.Ed.2d 481 (1985). They contend, however, that proof of prejudice is required to establish a violation of the sixth amendment right to counsel and argue that the facts show Cinelli suffered no prejudice as a result of the interview. Accordingly, they say, the district court was correct in entering summary judgment against Cinelli. We agree that a showing of prejudice

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must be made to establish a sixth amendment violation, but we also conclude that on the record before the district court there was a genuine issue of material fact as to whether Cinelli suffered prejudice as a result of the interview.

Decisions of the Supreme Court and of this Court instruct that a sixth amendment violation cannot be established without a showing that there is "a realistic possibility of injury" to the defendant or "benefit to the State." Weatherford v. Bursey, 429 U.S. 545, 558, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977); United States v. Morrison, 449 U.S. 361, 366, 101 S.Ct. 665, 669, 66 L.Ed.2d 564 (1981); United States v. Mastroianni, 749 F.2d at 907. In Weatherford, Weatherford, an undercover agent, met twice with defendant Bursey and his counsel, Wise, to discuss defense strategy. Weatherford communicated nothing about the meetings to the prosecution. The court of appeals adopted the rule that an agent's participation in a defense meeting amounted to a per se violation of the defendant's sixth amendment right. The Supreme Court rejected that rule and held that "[t]here being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford, there was no violation of the Sixth Amendment...." 429 U.S. at 558, 97 S.Ct. at 845. Significantly, however, the Court added that

[h]ad Weatherford testified at Bursey's trial as to the conversation between Bursey and Wise; had any of the State's evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from...

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