U.S. v. Muzychka, 83-1246

• Citation: 725 F.2d 1061
• Decision Date: 23 January 1984
• Docket Number: No. 83-1246,83-1246
• Parties: 14 Fed. R. Evid. Serv. 1538 UNITED STATES of America v. Eugene MUZYCHKA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1061

725 F.2d 1061

14 Fed. R. Evid. Serv. 1538

UNITED STATES of America v. Eugene MUZYCHKA, Appellant.

No. 83-1246.

United States Court of Appeals,

Third Circuit.

Argued Nov. 28, 1983.

Decided Jan. 23, 1984.

Neil E. Jokelson (argued), Jeremy T. Ross, Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Chief of Appeals, William B. Carr, Jr. (argued), Asst. U.S. Attys., Philadelphia, Pa., for appellee.

Before GIBBONS and SLOVITER, Circuit Judges and CALDWELL, District Judge. ^*

GIBBONS, Circuit Judge:

Eugene Muzychka appeals from a judgment of sentence imposed following a conditional guilty plea to charges of violating 21 U.S.C. Secs. 841(a)(1), 846 (1982) and 18 U.S.C. Sec. 1952 (1982). ¹ Muzychka's plea reserved the right to object on appeal to the district court's rulings on motions to suppress evidence. See United States v. Moskow, 588 F.2d 882, 884-90 (3d Cir.1978). Muzychka contended (1) that Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), required the suppression of certain evidence obtained by the government after May 18, 1981, and (2) that United States v. Starks, 515 F.2d 112 (3d Cir.1975), and Government of the Virgin Islands v. Testamark, 570 F.2d 1162 (3d Cir.1978), required the suppression of other evidence obtained prior to that date. The trial court denied both motions. We agree with those rulings, and we affirm.

I.

Muzychka's difficulties with the law grow out of his dealings with Jack Naiman and Ronald Raiton. Those dealings occurred, unfortunately for Muzychka, at times when both Naiman and Raiton were cooperating with the government by distributing phenyl-2-propanone (P-2-P) to customers who would use that substance in the manufacture of methamphetamine, a controlled substance. By the spring of 1981, both Raiton and Naiman had been arrested on drug charges and were cooperating, pursuant to plea agreements, in obtaining evidence against potential P-2-P purchasers.

In April of 1981, Naiman approached Muzychka in Philadelphia for the purpose of arranging a sale of P-2-P. On May 6 they met and, in a conversation tape recorded by Naiman, Muzychka agreed to purchase twelve gallons of P-2-P. On May 14 Muzychka delivered to Naiman $20,000 in partial payment for the anticipated twelve-gallon shipment. This May 14 conversation was also recorded.

On May 18, Muzychka and Naiman traveled to Fort Lauderdale, Florida, for the purpose of obtaining delivery of twelve gallons of P-2-P from Naiman's supplier, Ronald Raiton. At that time Muzychka did not yet know Raiton. Raiton could only deliver eight gallons, for which Muzychka paid Naiman an additional $18,500. Naiman placed these eight gallons of P-2-P in the trunk of a rented car which Muzychka intended to drive to Philadelphia.

Unknown to Muzychka, however, he and Naiman were under surveillance by an agent of the Federal Drug Enforcement Administration. That agent obtained the cooperation of Fort Lauderdale police, who stopped the rented car driven by Muzychka soon after it left the Fort Lauderdale airport. Muzychka proved to have no driver's license; Fort Lauderdale police officers then arrested him and took him to the Fort Lauderdale police headquarters. At the time of the arrest, police informed Muzychka that he had been arrested for possession of P-2-P. Although Muzychka was detained for several hours, Fort Lauderdale police later released him without explanation. Florida authorities lodged no formal charges against Muzychka--either for driving without a license or for possession of P-2-P. The rented car and its contents were impounded.

Muzychka returned to Philadelphia, where on June 24, 1981 he received an unexpected telephone call from Raiton. That call was inspired by officials of the Federal Drug Enforcement Administration. Raiton introduced himself to Muzychka by asking if Muzychka had ever traveled to Florida with Naiman. When Muzychka answered affirmatively, Raiton encouraged him to return the call from a phone booth. Muzychka took the bait and called Raiton. The return call was recorded. In this conversation, with encouragement from Raiton, Muzychka incriminated himself in the purchase of P-2-P from Naiman. Subsequent recorded telephone conversations between Muzychka and Raiton during July and August, 1981, further incriminated Muzychka. Eventually Muzychka paid Raiton $28,000 for what Raiton represented (falsely) to be an additional eight gallons of P-2-P. It is undisputed that all the conversations between Raiton and Muzychka were made while Raiton was acting as an informant for the Drug Enforcement Administration. It is also undisputed that all the conversations with Raiton occurred after Muzychka's arrest on May 18, 1981.

II.

Muzychka contends that his interrogation by Raiton violated the sixth amendment right recognized in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). That case holds that the sixth amendment right to counsel prohibits the use at trial against a defendant of statements elicited by government agents in the absence of counsel after that sixth amendment right has attached. Muzychka urges that the Massiah right to counsel attached on May 18, 1981, when the Drug Enforcement Administration caused Fort Lauderdale police to arrest him for possession of P-2-P obtained from Naiman and Raiton. Although the government urged that the Fort Lauderdale arrest was for a traffic offense, the district court found as a fact that he had been arrested for handling P-2-P. The government does not dispute that finding.

In rejecting Muzychka's Massiah contention, however, the district court relied upon the fact that Muzychka had initiated the contact with Raiton by trying to reach Naiman. That effort, the court concluded, sufficed to take the case out of the Massiah rationale. The government does not attempt to defend this rationale, and we reject it. The undisputed facts are that Raiton was cooperating with the government pursuant to an agreement made on June 11, 1981, and that he deliberately elicited evidence connecting Muzychka with the P-2-P seized in Florida. As it happens, the record shows that Raiton himself initiated the call to Muzychka. However, even if Muzychka had initiated the call to Raiton, that fact would have been irrelevant. If the sixth amendment right has attached and a government agent has deliberately elicited information from the defendant in the absence of counsel, then the fact that one or another of the parties had initiated the conversation is immaterial. See Beatty v. United States, 389 U.S. 45, 88 S.Ct. 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. 286 (1978). Thus we must decide whether the sixth amendment right recognized in Massiah had attached at the time Raiton recorded the telephone conversations with Muzychka.

III.

On the basis of a search of a vessel, federal agents arrested, arraigned, and later indicted Winston Massiah for narcotics possession. Massiah retained a lawyer, pleaded not guilty, and was released on bail. Federal officials also charged Jesse Colson with possession of narcotics and with having conspired with Massiah. Colson later permitted government agents to install a radio transmitter under the seat of his automobile. Massiah entered the automobile and made a number of incriminating statements to Colson. A federal agent in a nearby car equipped with a radio receiver overheard this conversation and testified to Massiah's remarks at trial.

The Supreme Court held that the introduction of Massiah's remarks at trial elicited from him after his indictment and in the absence of counsel violated the sixth amendment. Writing for the court, Justice Stewart relied principally upon the concurring opinions of four Justices ² in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). These "four concurring Justices," Justice Stewart wrote, "pointed out that the Constitution required reversal of the conviction upon the sole and specific ground that the confession had been deliberately elicited by the police after the defendant had been indicted, and therefore at a time when he was clearly entitled to a lawyer's help." 377 U.S. at 204, 84 S.Ct. at 1202. "Anything less," Justice Stewart reasoned, "might deny a defendant 'effective representation by counsel at the only stage when legal aid and advice would help him.' " Id., quotingSpano v. New York, 360 U.S. 315, 326, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265 (1959) (Douglas, J., concurring). Officials had "deliberately elicited" ³ from Massiah, as they had from Spano, incriminating remarks after those defendants had been indicted. 377 U.S. at 204, 206, 84 S.Ct. at 1201-1202, 1203. Consequently, the Court concluded, the sixth amendment had been violated by the introduction at trial of Massiah's incriminating words, "deliberately elicited from him after he had been indicted and in the absence of his counsel." Id. at 206, 84 S.Ct. at 1203.

The Supreme Court has not confined the sixth amendment right to counsel established in Massiah to the period following an indictment. Rather, the Court has held that the Massiah right to counsel attaches upon the commencement of "adversary judicial criminal proceedings" against an accused. See Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972) (plurality opinion); Moore v. Illinois, 434 U.S. 220, 226-27, 98 S.Ct. 458, 463-464, 54 L.Ed.2d 424 (1977) (adopting language of Kirby plurality). Thus, it is settled that the sixth amendment right to counsel attaches at an arraignment if under the applicable rules important proceedings may take place which could disadvantage the defendant. See White v. Maryland, 373 U.S. 59,...