U.S. v. Bagley

• Decision Date: 13 April 1981
• Docket Number: No. 79-1581,79-1581
• Parties: 7 Fed. R. Evid. Serv. 1657, 7 Fed. R. Evid. Serv. 930 UNITED STATES of America, Plaintiff-Appellee, v. Hughes A. BAGLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1235

641 F.2d 1235

7 Fed. R. Evid. Serv. 1657, 7 Fed. R. Evid. Serv. 930

UNITED STATES of America, Plaintiff-Appellee, v. Hughes A. BAGLEY, Defendant-Appellant.

No. 79-1581.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 9, 1980.

Decided Jan. 30, 1981.

Amended April 13, 1981.

Robert J. Wayne, Seattle, Wash., argued, Irwin H. Schwartz, Seattle, Wash., on brief, for defendant-appellant.

Francis J. Diskin, Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

AMENDED OPINION

Before SNEED and FLETCHER, Circuit Judges, and JAMESON ^*, District Judge.

SNEED, Circuit Judge:

Appellant Bagley was convicted of being a felon in possession and receipt of firearms and of dealing in firearms without a license. The district court entered judgments of acquittal at the close of the government's case on one count of receipt of firearms and on a charge of obstructing justice. Our jurisdiction rests on 28 U.S.C. § 1291 (1976). We affirm.

I. FACTUAL BACKGROUND

In January 1978 appellant Bagley was convicted of a felony and placed on both Prior to trial on the firearms and obstruction of justice counts, the district court held an evidentiary hearing to investigate appellant's claim that the government had violated the rule established in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). The court subsequently denied appellant's motion to dismiss the indictment based on the alleged Massiah violation. Appellant also moved prior to trial to dismiss the obstruction of justice count, a motion he renewed at the beginning of trial and again at the close of the government's case. The district court denied these motions but decided at the close of all the evidence to dismiss the obstruction of justice count and one count of receipt of firearms. The court instructed the jury not to consider the evidence adduced in support of those counts, but denied appellant's motion for a mistrial. After commencing its deliberations, but before reaching a verdict, the jury sent the bailiff a note asking whether one of the government's witnesses had received immunity for his testimony. Counsel for appellant and the government agreed that the answer was no, and the bailiff conveyed that information to the jury. The attorneys subsequently realized that their answer had placed before the jury information that had not been introduced as evidence at trial. They then contacted the trial judge who submitted an instruction to the jury to disregard the answer given them by the bailiff. The jury found appellant guilty on the remaining counts and the court imposed a sentence of twelve years imprisonment. Appellant's motion for a mistrial based on the improper submission of the note was denied, as was his motion for a new trial.

supervised probation and special parole. By superseding indictment of May 15, 1979, appellant was charged with two counts of being a felon in possession of firearms in violation of 18 U.S.C. App. § 1202(a) (1976), three counts of being a felon in receipt of firearms in violation of 18 U.S.C. § 922(h) (1976), one count of dealing in firearms without a license in violation of 18 U.S.C. § 922(a)(1) (1976), and one count of obstruction of justice in violation of 18 U.S.C. § 1503 (1976). The factual basis of these charges also supported appellant's simultaneous arrest on a probation revocation warrant. Probation revocation proceedings were held during which the government presented evidence substantially identical to that later presented at appellant's trial, evidence that eventually led to the revocation of his probation.

Appellant gave notice of appeal and thereafter in March 1980 appellant renewed his motion for a new trial based on the alleged Massiah violation. The informant whose conduct had formed the basis of the alleged error and who had been unavailable at the pretrial evidentiary hearing had returned to custody in the jurisdiction. The district court denied the motion and, on July 10, 1980, this court denied appellant's petition for a limited remand for the purpose of holding another evidentiary hearing on the Massiah claim.

In this appeal three issues are raised. First, was appellant denied effective assistance of counsel according to Massiah, an issue we consider in light of the Supreme Court's recent decision in United States v. Henry, --- U.S. ----, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980)? ¹ Second, did the trial court err in refusing to declare a mistrial after dismissing the obstruction of justice count? Third, was a mistrial warranted because of the extrajudicial information supplied to the jury during its deliberations?

We resolve each issue against the appellant and affirm his conviction on all counts.

II. THE MASSIAH ISSUE

Appellant argues that the government used an informant, Norman Carl McKenzie, who shared appellant's jail cell, to elicit information from him in violation of Massiah and United States v. Henry, supra. At In Massiah it was held that the government violates the Sixth Amendment's guarantee of a right to counsel when it uses an informant to "deliberately elicit" incriminating information from a defendant after indictment and without the presence of defendant's counsel. 377 U.S. at 206, 84 S.Ct. at 1203. As rephrased in Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977), "(t)he clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him." Both Brewer and Massiah establish, moreover, that the normal remedy for violation of this right is exclusion of evidence obtained through the illegal interrogation. See, e. g., United States v. Sander, 615 F.2d 215, 219 (5th Cir. 1980); United States v. Kilrain, 566 F.2d 979, 982 (5th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 80, 58 L.Ed.2d 109 (1978).

                the close of the pretrial evidentiary hearing on this issue the trial court made the following findings from the bench: (1) that federal authorities did not direct McKenzie to elicit information from appellant concerning the charges that led to his conviction and, indeed, that they directed him not to do so; and (2) that the government received no information from McKenzie that it did not already possess.  2  Accordingly, the court held that no Massiah violation had occurred
                

At oral argument appellant's counsel urged that the Supreme Court's recent decision in United States v. Henry, supra, has removed all doubt and clearly requires reversal. In Henry government agents instructed an informant who shared defendant's jail cell "to be alert to any statements made by the federal prisoners, but not to initiate any conversation with or question" the defendant regarding the charges against him. 447 U.S. at 266, 100 S.Ct. at 2184. The informant subsequently testified at trial about incriminating statements made by the defendant while the two shared the jail cell. The Supreme Court held that although government agents instructed the informant not to act affirmatively in eliciting information, the factual circumstances, which included conversations in which the informant was not a "passive listener," demonstrated constitutional error: "By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the government violated Henry's Sixth Amendment right to counsel." Id. 274, 100 S.Ct. at 2189. ³

Prior to Henry this court held that to establish a violation of Massiah defendant must show that he suffered prejudice at trial as a result of evidence obtained from interrogation outside the presence of counsel. United States v. Glover, 596 F.2d 857, 862-64 (9th Cir.), cert. denied, 444 U.S. 860, 100 S.Ct. 124, 62 L.Ed.2d 81 (1979); United States v. Irwin, 612 F.2d 1182, 1186-87 (9th Cir. 1980). Accord, United States v. Sander, supra; United States v. Kilrain, supra; United States v. Woods, 544 F.2d 242 (6th Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977); United States v. Meinster, 478 F.Supp. 1131 (S.D.Fla.1979). The Supreme Court has employed a similar standard in cases in which government agents have been present at meetings between criminal defendants and their attorneys. Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); see Klein v. Smith, 559 F.2d 189 (2d Cir.), cert. denied, 434 U.S. 987, 98 S.Ct. 617, 54 L.Ed.2d 482 (1977); Mastrian v. McManus, 554 F.2d 813 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977); United States v. Valencia, 541 F.2d 618 (6th Cir. 1976).

The question is whether Henry has affected the vitality of this court's rule in Glover requiring a showing of prejudice to defendant at trial. We hold that it has not. It is true that the Supreme Court has never directly addressed the question whether a showing of prejudice is necessary in a Massiah claim. In Brewer and Massiah the issue was not raised, probably because in both cases the illegal interrogations directly produced highly incriminating evidence used against the defendants at trial. In Henry the informant also testified against defendant at trial and the Court was again confronted with a situation in which prejudice was apparent.

The showing of prejudice required by Glover and readily evident in Brewer, Massiah, and Henry is not made by the facts of this case. ⁴ Our review of the record convinces us that the district court was correct in concluding that the informant McKenzie did not produce evidence prejudicial to appellant at trial. Counsel for appellant concedes as much in his brief. ⁵ First, the preliminary hearing testimony suggests that McKenzie revealed nothing more to the federal agents who questioned him than appellant's description of the charges that brought him into custody. McKenzie's primary value was in aiding local law...