U.S. v. Irwin

• Decision Date: 31 January 1980
• Docket Number: No. 78-3022,78-3022
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John E. IRWIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1182

612 F.2d 1182

UNITED STATES of America, Plaintiff-Appellee, v. John E. IRWIN, Defendant-Appellant.

No. 78-3022.

United States Court of Appeals Ninth Circuit.

Jan. 31, 1980.

As Modified March 26, 1980.

Michael H. Weiss, San Francisco, Cal., for defendant-appellant.

Floy E. Dawson, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before GOODWIN and WALLACE, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

John E. Irwin has appealed his conviction of distributing cocaine in violation of 21 U.S.C. § 841(a)(1) and of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846.

Factual Background

In December, 1977, the Denver Police Department arrested Irwin for possession of cocaine. In exchange for a dismissal of the criminal charge against him, Irwin agreed to become an informant for the Police Department. To "work off" the charge, Irwin first gave information that led to the arrest and conviction of his source and later attempted to set up some large scale drug transactions. ¹

In February, 1978, Irwin met Darrell Wisdom, a Drug Enforcement Administration (DEA) agent who was posing as a large scale drug dealer. Irwin did not know Wisdom was an undercover agent, although Wisdom knew that Irwin was working as a confidential informant for the Denver Police Department. Based upon Irwin's negotiations with Wisdom, two DEA agents later informed the Denver Police that they thought Irwin was "double dealing", i. e., acting as an informant and selling drugs on the side.

In March, 1978, Irwin learned through a friend of Sharon Baker, his girl friend, that Frank McLister, who lived in the San Francisco area, might have a pound or two of cocaine to sell. Irwin arranged by telephone to have the cocaine available for a sale to Wisdom. On March 6 Irwin and Baker flew to San Francisco, and Wisdom flew there the following day. After making final arrangements for the sale, Wisdom met Irwin, McLister, Baker, and Thane Rucker, an associate of McLister, in a camper parked outside the San Francisco Hilton. After Wisdom had seen the cocaine, agents arrested Irwin, Baker, McLister, and Rucker. ²

Irwin and Baker were released on bail and returned to Denver. Between March 17 and April 13, 1978, Wisdom and Irwin engaged in several telephone conversations. Each claims the other initiated the calls. While there is some dispute regarding what was said in most of the telephone conversations, it is apparent that the calls were made without the consent of Irwin's counsel. ³ It is conceded that following the telephone conversations, Irwin arranged a meeting in Denver between Wisdom and a potential seller of cocaine from New York. Before any sale was consummated, Wisdom advised Floy E. Dawson, Assistant United States Attorney in San Francisco, what had transpired and was requested by Dawson to have no further contact with Irwin or Baker.

District Court Proceedings

Irwin, Baker, McLister, and Rucker were each charged with conspiracy to distribute and distribution of cocaine. Irwin and Baker filed motions to dismiss the indictment on grounds of prosecutorial misconduct and violation of a plea agreement. On the basis of affidavits introduced by both the Government and the defendants, the tape of the April 4 telephone conversations, legal memoranda and oral argument, the district court denied both motions, without an evidentiary hearing. The court stated, however, that any inculpatory statements made by Irwin to Government agents subsequent to his arrest and appointment of counsel would be suppressed.

At trial it was the Government's theory that Irwin, although working as an informant for the Denver Police Department, was also trafficking in drugs. Irwin's defense was that he was working as an informant at all times and was setting up the San Francisco sale to "work off" his arrangements with the Denver Police Department. ⁴ The jury returned a guilty verdict against Irwin on both the conspiracy and distribution charges. ⁵

Contentions on Appeal

Appellant contends that (1) the indictment should have been dismissed because (a) a Government agent's "gross intrusion into the attorney-client relationship" deprived him of Fifth and Sixth Amendment rights, and (b) he had entered into a dispositional agreement with Government agents and performed his part of the agreement; and (2) the court erred in refusing to instruct the jury that it could find appellant not guilty if he had substantially complied with his agreement to serve as a confidential informant.

Violation of Fifth and Sixth Amendment Rights

Irwin first contends that Wisdom's post-arrest "approaches constituted a gross subversion of Irwin's Sixth Amendment right to counsel and his Fifth Amendment rights to due process and protection from self-incrimination". He argues that Wisdom importuned Irwin to ignore the advise of his counsel that he not talk to or actively work with police or government agents, and further urged Irwin to resume his activities as a government informant. This conduct, appellant contends, requires that the indictment be dismissed, citing O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967); Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966); Caldwell v. United States, 92 U.S.App.D.C. 355, 205 F.2d 879 (D.C.Cir. 1953), and Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (D.C.Cir. 1951).

It is clear that government interference with a defendant's relationship with his attorney May render counsel's assistance so ineffective as to violate his Sixth Amendment right to counsel and his Fifth Amendment right to due process of law. It is equally clear, however, that not all police action which arguably could be called an interference with the attorney-client relationship is violative of those rights. The Supreme Court in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), and this court in United States v. Glover, 596 F.2d 857 (9th Cir. 1979), recognize that the Sixth Amendment does not establish any Per se rule and suggest guidelines for determining whether an accused's constitutional rights are violated.

In Weatherford v. Bursey, Weatherford, an undercover agent, was charged with Bursey with vandalizing a county selective service office. In order to retain his undercover status, Weatherford continued a masquerade that he was being prosecuted for the incident and on two occasions met with Bursey and his counsel to discuss strategy for the approaching trial. Bursey discovered Weatherford's true status at the trial. After serving an eighteen month sentence, Bursey filed an action under 42 U.S.C. § 1983 alleging that Weatherford's presence at the pretrial conferences deprived him of effective assistance of counsel and due process of law. The district court found for the defendants in all respects, but the Court of Appeals reversed, ruling that "whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial." 429 U.S. at 549, 97 S.Ct. at 840, 841 (quoting appeal court's opinion, 528 F.2d 483, 486 (1975)). Reviewing O'Brien, supra and Black, supra, ⁶ the Supreme Court disagreed with the court of appeals' conclusion that these decisions required a Per se rule. The Court stated that "(i)f anything is to be inferred from these two cases with respect to the right to counsel, it is that when conversations with counsel have been overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, directly or indirectly, any of the evidence offered at trial." Id. 429 U.S. at 552, 97 S.Ct. at 842.

On the other hand, the Court did not agree with petitioners that whenever a defendant converses with his counsel in the presence of a third party, the defendant assumes the risk and cannot complain if the third party turns out to be a government informer. The Court continued:

Had Weatherford testified at Bursey's trial as to the conversation between Bursey and Wise (Bursey's counsel); 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 Weatherford, an undercover agent, the details of the Bursey-Wise conversations about trial preparations, Bursey would have a much stronger case.

429 U.S. at 554, 97 S.Ct. at 843 (footnote omitted).

The Court also indicated that the purpose of the intrusion was an important factor to consider. Weatherford had not attended the meetings for the purpose of discovering defense secrets. Rather, Bursey had invited him to attend, and legitimate law enforcement objectives required that he continue to conceal his identity. ⁷

This court recently considered the effect of Weatherford and other cases bearing on the Sixth Amendment issue in United States v. Glover, supra. ⁸ The police arrested Glover when he attempted to sell stolen gems to an undercover agent. Prior to trial, FBI agents talked to Glover in the absence of counsel. "They told him he would be released if he would reveal the location of the gems and testify against his co-defendants. When he asked if his attorney should not be present, the agents responded she had given her consent to the questioning," but it later became apparent that she had not. 596 F.2d at 859. Although the meeting in the absence of counsel produced no evidence against the defendant at the trial, the defendant moved for dismissal of the indictment because of the FBI's attempted interference with the attorney-client relationship. He argued that prejudice is irrelevant in determining whether a defendant has been denied the right to counsel. Citing Weatherford, we stated that "(n)ot all police action...