Cooper v. U.S.
| Citation | 594 F.2d 12 |
| Decision Date | 05 March 1979 |
| Docket Number | No. 77-2288,77-2288 |
| Parties | 4 Fed. R. Evid. Serv. 670 Ralph Henry COOPER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Alan G. Horwitz, Baltimore, Md., for appellant.
Michael J. Travieso, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty. and Neal M. Janey, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.
Before WINTER, BUTZNER and PHILLIPS, Circuit Judges.
Cooper appeals his jury trial conviction on two counts of bribery of a witness, 18 U.S.C. § 201(e), and two counts of obstruction of justice, 18 U.S.C. § 1503. He assigns errors in the conduct of the trial, and in the refusal of the district court to compel enforcement of a proposal made to him by the government in plea discussions. We find no prejudicial error in the trial, but find constitutional error in the district court's refusal to enforce the government's plea proposal. For this error we vacate the judgment and remand with instructions.
The witness bribery and obstruction of justice charges against Cooper grew out of a series of telephone conversations he had with one Simpson at a time when Simpson was under indictment on federal narcotics charges, and Cooper was acting as a Drug Enforcement Administration (DEA) informer under the federal government's Witness Protection Program. Cooper had become an informer after his own arrest on narcotics charges in Maryland in November 1976. After making several valuable contacts for DEA agents that resulted in the indictment of several persons on narcotics charges, Cooper was moved under the Witness Protection Program to Little Rock, Arkansas. From there he was expected in due course to return to Maryland to testify as a government witness in the anticipated trials of several persons whose indictments he had helped secure, including Simpson.
From Little Rock on May 5, 1977, Cooper called Simpson in Maryland and offered for $10,000 to remove himself as a witness against Simpson by fleeing to Mexico. After asking Cooper to call back later, Simpson informed his attorney, a member of the Baltimore bar, of the call and sought his counsel. The attorney listened in on the telephone conversation between Cooper and Simpson when Cooper called back later on May 5. In this conversation it was arranged that Cooper would again call on the next day, May 6, 1977. Simpson then went with his attorney to the United States Attorney in Maryland and divulged to him and DEA agents these contacts with Cooper. Based upon the United States Attorney's promise that nothing said by Simpson would be used against him in his pending trial, an arrangement was made for government agents to monitor and record the anticipated call from Cooper. To safeguard Simpson's promised immunity against use of his expected statements, a summary of the case against him was prepared and put under seal. With these arrangements made, the telephone call that did then come from Cooper to Simpson was monitored by Simpson's attorney and two DEA agents, and was recorded by the latter, all with Simpson's consent. Cooper's statements in this and the earlier conversations as recorded, and as testified to by both Simpson and his attorney on Cooper's ensuing trial, were instrumental in securing his conviction from which this appeal is taken.
Cooper assigns two errors in the conduct of his trial. We find no merit in either. 1
He first contends that the recording of the telephone conversation he had with Simpson on May 6 was inadmissible. 18 U.S.C. § 2511(2)(c) provides that it is not unlawful to intercept a wire communication if one of the parties to the communication consents to the interception. Cooper does not suggest that Simpson failed to consent; but contends that the consent was not voluntary because it was coerced by the grant of immunity and by his attorney's advice, and that it was not intelligently given. We have previously rejected the contention that a grant of immunity coerces consent to the interception of a wire communication, United States v. Dowdy, 479 F.2d 213, 229 (4th Cir. 1973), and find it no more persuasive in this case. The suggestion that Simpson's will was effectively overborne by his attorney's advice is patently without support in the record, as is the contention that the consent was not intelligently given.
Cooper also contends that the trial court abused its discretion in failing to sequester Simpson's attorney while Simpson was testifying about the telephone conversations of May 5 and before the attorney's testimony about that of May 6. Cooper's position is that the character of the May 6 conversation is ambiguous and that the testimony about the May 5 conversations was critical to the proof of the government's contention that Cooper had solicited a bribe from Simpson. Fed.R.Evid. 615 provides:
While Rule 615 does make exclusion ordinarily a matter of right, L. S. Ayres & Co. v. NLRB, 551 F.2d 586, 588 (4th Cir. 1977) (per curiam), the trial judge still retains a measure of discretion in the application of the exceptions to the rule, 3 J. Weinstein & M. Berger, Weinstein's Evidence P 615(01), at 615-8 (1977). In light of the pending charges against Simpson, we cannot say that the trial court abused that discretion in allowing his attorney to remain in the courtroom during his testimony. The grant of use immunity did not remove all the possible need that Simpson might have for the protection of counsel during his testimony.
About two months before Cooper's trial, at around 11:00 a. m. on May 11, 1977, an Assistant United States Attorney and Cooper's then defense counsel met to discuss a possible plea bargain. After some initial negotiations, the government attorney proposed a plea agreement under which defendant would (a) be removed from the Witness Protection Program, (b) remain incarcerated, (c) continue to cooperate with the federal authorities, (d) plead guilty to one count of obstruction of justice, and (e) testify on three occasions in the on-going narcotics trials, while the government would (a) bring defendant's cooperation to the sentencing judge's attention, and (b) dismiss all other counts of the indictment. Defense counsel agreed to communicate the proposal to defendant, who was then incarcerated, and to get back to the government promptly. 2
Defense counsel immediately visited Cooper and obtained his agreement to the proposal. Beginning at approximately noon on May 11, defense counsel attempted to call the Assistant United States Attorney and notify him of Cooper's acceptance but could not reach him. At 1:30 p. m. on May 11, the Assistant United States Attorney met with his superior, the United States Attorney for the District of Maryland, and was instructed by the latter to withdraw the proposal. When the Assistant United States Attorney and defense counsel finally made telephone contact later that afternoon between 2:30 and 3:30 p. m., Cooper's counsel was notified at the outset that the offer had been withdrawn. Defense counsel protested that this was not acceptable practice, and that Cooper had agreed to accept the proposal. When his protests were unavailing, he requested and received permission to carry his objection to the United States Attorney. This was done, but again to no avail. Defendant then moved to compel enforcement of the proposal, and at a pre-trial hearing this motion was denied by the district court. Cooper's conviction on four counts, sentencing to a total of fifteen years imprisonment, and appeal followed.
In giving formal approval to plea bargaining as an essential and desirable practice in the administration of criminal justice, the Supreme Court in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), made only brief allusion to the substantive principles that should control the practice. The considerations justifying it were said to "presuppose fairness in securing agreement between an accused and a prosecutor," Id. at 261, 92 S.Ct. at 498, and an admonition was given that its use "must be attended by safeguards to insure the defendant what is reasonably due (in) the circumstances," Id. at 262, 92 S.Ct. at 499. Beyond these general allusions, and except as substantive principles were necessarily implied in the very finding of right and violation on the specific facts of Santobello, the precise source and specific content of the right recognized and given protection in that case were not developed, but it was plain in context that the source was constitutional. 3
Both before and since Santobello, the courts have understandably drawn heavily on the ready analogies of substantive and remedial contract law to supply the body of doctrine necessary to order plea bargaining practices and to afford relief to defendants aggrieved in the negotiating process. To the extent therefore that there has evolved any general body of "plea bargain law," it is heavily freighted with these contract law analogies. 4 When Santobello made it plain, however, that the core concept here is the existence of a constitutional right in the defendant to be treated with "fairness" throughout the process, this presaged inevitably the question of the extent to which contract law may be drawn upon to define the limits of this constitutional right. That is the precise issue presented in this case, where we are asked to find and enforce a right probably lying beyond any provided by contract law analogy.
In each of the earlier cases in which this court has found violations of defendants...
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