Paroutian v. United States

• Decision Date: 03 January 1967
• Docket Number: No. 134,Docket 30476.,134
• Citation: 370 F.2d 631
• Parties: Antranik PAROUTIAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

370 F.2d 631 (1967)

Antranik PAROUTIAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 134, Docket 30476.

United States Court of Appeals Second Circuit.

Argued October 19, 1966.

Decided January 3, 1967.

Robert J. Carluccio, New York City, for appellant.

George L. Barnett, Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty. for Eastern Dist. of New York, on the brief), for appellee.

Before WATERMAN, HAYS and ANDERSON, Circuit Judges.

HAYS, Circuit Judge:

This is an application by a federal prisoner for a writ of habeas corpus. The district court properly treated the application as a motion under 28 U.S.C. § 2255. See Ray v. United States, 295 F.2d 416 (10th Cir. 1961), cert. denied, 369 U.S. 875, 82 S.Ct. 1146, 8 L.Ed.2d 278 (1962). We affirm the district court's denial of the motion.

Appellant was convicted of dealing in narcotics in violation of 21 U.S.C. § 174. The conviction was affirmed, 319 F.2d 661 (2d Cir. 1963), cert. denied, 375 U.S. 981, 84 S.Ct. 494, 11 L.Ed.2d 426 (1964).

While appellant was incarcerated in the Federal House of Detention in New York City awaiting trial he shared a cell with one Luis DeAlmeida who was held on an entirely unrelated charge. DeAlmeida told the Federal authorities that appellant had made several incriminating statements to him and offered to testify against appellant. Appellant now contends that DeAlmeida's testimony should have been excluded. He argues that the government's use of this testimony deprived him of his Sixth Amendment right to counsel since, although he had already been indicted and had retained counsel, the incriminating statements to which DeAlmeida testified were made in the absence of counsel. For the proposition that under these circumstances the evidence of incriminating statements was inadmissible, appellant cites United States v. Massiah, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

But in Massiah the Court said:

"We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All we hold is that the defendant\'s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial." 377 U.S. at 207, 84 S.Ct. at 1203.

As we read Massiah the decision turns upon the fact that the situation in which Massiah made the admissions introduced against him constituted "interrogation by a government agent," 377 U.S. at p. 206, 84 S.Ct. at 1203, and was the equivalent of "interrogation by the police," 377 U.S. at p. 204, 84 S.Ct. at 1202.

In the present case the trial court examined the evidence as to the admissibility of DeAlmeida's testimony and expressly found that the government did not assign DeAlmeida to appellant's cell and that appellant's admissions to DeAlmeida were voluntarily made. We accept these findings. It is clear that DeAlmeida was not a government agent at the time that appellant made the incriminating statements to which DeAlmeida testified and that appell...