U.S. v. Anderson, No. 74-3534

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GODBOLD, SIMPSON and CLARK; GODBOLD
Citation523 F.2d 1192
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James B. ANDERSON, Defendant-Appellant.
Decision Date28 November 1975
Docket NumberNo. 74-3534

Page 1192

523 F.2d 1192
UNITED STATES of America, Plaintiff-Appellee,
v.
James B. ANDERSON, Defendant-Appellant.
No. 74-3534.
United States Court of Appeals,
Fifth Circuit.
Nov. 28, 1975.

Page 1193

L. Drew Redden, William N. Clark, Birmingham, Ala., for defendant-appellant.

Wayman G. Sherrer, U. S. Atty., J. Stephen Salter, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, SIMPSON and CLARK, Circuit Judges.

GODBOLD, Circuit Judge:

The defendant, a medical doctor, was convicted on one conspiracy count and 16 substantive counts charging possession with intent to distribute amphetamines in violation of 21 U.S.C. § 841(a)(1). The District Court permitted a prosecution witness to testify regarding defendant's actions and statements during a government-sponsored encounter after his indictment

Page 1194

and in the absence of retained counsel. Admission of this evidence was reversible error under Massiah v. U. S., 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

The indictment was handed down April 3, 1974, charging offenses occurring between September 15, 1970, and October 19, 1973. On July 15, 1974, a week before trial, a Drug Enforcement Administration special agent sent Edna Kilgore, a paid informer, to defendant's clinic. She was not defendant's patient and had never seen him. She presented herself under an alias. Kilgore told Dr. Anderson that she was a prostitute and needed quaalude, a barbiturate, to aid her in sleeping and to increase her sexual arousal. Apparently not understanding her pronunciation of the drug, defendant called a local druggist for clarification and at that time authorized a prescription for an amphetamine called didrex, another controlled drug requested by Kilgore, who told the defendant she had received it previously for weight control. Explaining that quaalude had been reclassified as a "Schedule II" drug 1 because of its misuse, Dr. Anderson issued the written prescription required. Afterward Kilgore received a physical examination consisting of checks on her weight, blood pressure and heart beat.

At the trial Kilgore's testimony was proffered to "go towards a showing of pattern and scheme on the part of this defendant to relate to his intent to violate the law." 2 It was admitted for its probative value on the question of Dr. Anderson's specific intent, as an exception to the rule that evidence dealing with offenses not charged in the indictment is inadmissible.

In Massiah petitioner was indicted for violating federal narcotics laws, retained a lawyer, pleaded not guilty, and was released on bail. Unknown to him, a co-defendant, having decided to cooperate with government agents in a continuing investigation of their alleged narcotics activities, permitted the installation of a radio transmitter under the front seat of his automobile. Without his counsel present Massiah made several incriminating statements to his co-defendant while seated in the latter's automobile. The federal agent who listened over the radio to the entire conversation testified against Massiah. Reversing the conviction, the Supreme Court declared: "We hold that the petitioner was denied the basic protections of that guarantee (Sixth Amendment right to counsel) when there was used against him at trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S. at 206, 84 S.Ct. at 1203, 12 L.Ed.2d at 250. Justice Stewart's opinion stressed that "indirect and surreptitious interrogations" were within the ambit of the constitutional rule announced in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959), disapproving post-indictment interrogations of defendants without the protection afforded by the presence of counsel.

Some circuits have broadly construed Massiah to render inadmissible all post-

Page 1195

indictment statements secured in the absence of counsel. See the discussion in U. S. v. Deloy, 421 F.2d 900 (CA5, 1970). In U. S. v. Venere, 416 F.2d 144 (CA5, 1969), this circuit had refused to adopt the automatic exclusion interpretation of Massiah, and in Deloy we reaffirmed our position and suggested special circumstances which would trigger its application. In Deloy an overzealous indicted defendant made numerous voluntary and unsolicited visits to FBI agents, and on each occasion he insisted on making incriminating statements after being thoroughly advised of his Miranda rights and encouraged to contact his attorney. Other than the bare absence of counsel the case presented "not even a suggestion of any additional circumstance which would render Deloy's statements inadmissible:"

No clandestine activity, surreptitiousness, or other "dirty pool" was engaged in by the government agents . . . He (Deloy) was not coerced, cajoled, or tricked into an involuntary statement. The government did not elicit, solicit, or even suggest a statement and did not otherwise treat the defendant unfairly. Id. at 902.

The government's conduct in the circumstances here presented is a departure from the constitutional underpinnings of Massiah and our circuit's interpretation of its boundaries. The government makes no claim that the DEA was unaware that the defendant was represented by counsel, and under the circumstances an inference to that effect would be absurd. In this instance there was much more than the bare absence of counsel. The government did "solicit" and "elicit" acts and statements by the defendant. Deloy, supra, at 902. It did this nine months after the last act charged in the indictment and only a few days before trial was to commence. It acted pursuant to a prearranged plan, utilizing a paid informer who did not reveal her governmental connection, who appeared under an alias, fictitiously represented a need for drugs, and did not advise the...

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22 practice notes
  • U.S. v. Moschiano, Nos. 81-2017
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 29, 1982
    ...of creating evidence to use against the defendant at the trial of the indicted offenses. One such case is United States v. Anderson, 523 F.2d 1192, 1195-96 (5th Cir.1975), in which the court reversed a defendant's conviction on narcotics charges because of a Massiah violation. The court obs......
  • U.S. v. Muzychka, No. 83-1246
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 23, 1984
    ...234, 19 L.Ed.2d 48 (1967), rev'g per curiam Beatty v. United States, 377 F.2d 181, 188-90 (5th Cir.1967); United States v. Anderson, 523 F.2d 1192, 1196 n. 3 (5th Cir.1975); Kamisar, Brewer v. Williams, Massiah, and Miranda: What is "Interrogation"? When Does it Matter?, 67 Geo.L.J. 1, 44 n......
  • U.S. v. Chiantese, No. 75-3534
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 14, 1977
    ...to infer that a person ordinarily intends the natural and probable consequences of his knowing acts. See also United States v. Anderson, 523 F.2d 1192, 1197 (5th Cir. An instruction couched in Mann terms did not reappear until United States v. Durham, 512 F.2d 1281, 1285-88 (5th Cir.), cert......
  • State v. March, No. M2007–00053–CCA–R3–CD.
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • January 27, 2011
    ...statements from Defendant about the charged offenses. See Moschiano, 695 F.2d at 242–243 (quoting United States v. Anderson, 523 F.2d 1192, 1195–96 (5th Cir.1975)) (observing that “post-indictment evidence [which] was not the product of an ongoing investigation but rather was a ‘special sin......
  • Request a trial to view additional results
22 cases
  • U.S. v. Moschiano, Nos. 81-2017
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • November 29, 1982
    ...of creating evidence to use against the defendant at the trial of the indicted offenses. One such case is United States v. Anderson, 523 F.2d 1192, 1195-96 (5th Cir.1975), in which the court reversed a defendant's conviction on narcotics charges because of a Massiah violation. The court obs......
  • U.S. v. Muzychka, No. 83-1246
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 23, 1984
    ...234, 19 L.Ed.2d 48 (1967), rev'g per curiam Beatty v. United States, 377 F.2d 181, 188-90 (5th Cir.1967); United States v. Anderson, 523 F.2d 1192, 1196 n. 3 (5th Cir.1975); Kamisar, Brewer v. Williams, Massiah, and Miranda: What is "Interrogation"? When Does it Matter?, 67 Geo.L.J. 1, 44 n......
  • U.S. v. Chiantese, No. 75-3534
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 14, 1977
    ...to infer that a person ordinarily intends the natural and probable consequences of his knowing acts. See also United States v. Anderson, 523 F.2d 1192, 1197 (5th Cir. An instruction couched in Mann terms did not reappear until United States v. Durham, 512 F.2d 1281, 1285-88 (5th Cir.), cert......
  • State v. March, No. M2007–00053–CCA–R3–CD.
    • United States
    • Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
    • January 27, 2011
    ...statements from Defendant about the charged offenses. See Moschiano, 695 F.2d at 242–243 (quoting United States v. Anderson, 523 F.2d 1192, 1195–96 (5th Cir.1975)) (observing that “post-indictment evidence [which] was not the product of an ongoing investigation but rather was a ‘special sin......
  • Request a trial to view additional results

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