U.S. v. Pace

• Citation: 833 F.2d 1307
• Decision Date: 07 December 1987
• Docket Number: No. 84-5362,84-5362
• Parties: , 24 Fed. R. Evid. Serv. 409 UNITED STATES of America, Plaintiff-Appellee, v. David Lee PACE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1307

833 F.2d 1307

105 A.L.R.Fed. 653, 24 Fed. R. Evid. Serv. 409

UNITED STATES of America, Plaintiff-Appellee, v. David Lee PACE, Defendant-Appellant.

No. 84-5362.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 8, 1987.

Decided Dec. 7, 1987.

Robert L. Allen, Los Angeles, Cal., for defendant-appellant.

William F. Fahey, Laurie L. Levenson and David A. Sklansky, Asst. U.S. Attys., Public Corruption & Government Fraud Section, Los Angeles, Cal., for plaintiff-appellee.

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

Before HALL, NOONAN, and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

David Lee Pace appeals his conviction for robbery of the Rockwell Federal Credit Union in violation of 18 U.S.C. Sec. 2113(a). On appeal, Pace contends: (1) the admission of the testimony of a cellmate informant to whom Pace made incriminating statements violated Pace's sixth amendment right to counsel, (2) Pace's fifth amendment privilege against compulsory self-incrimination was violated when he was not given Miranda warnings prior to making the incriminating statements, (3) cross-examination of two adverse witnesses was impermissibly restricted, (4) the trial court erred in refusing to instruct the jury on the lesser-included offense of possessing stolen funds, (5) the government violated Fed.R.Crim.P. 12.1 by failing to disclose the name and address of an alibi rebuttal witness, and (6) the trial court erred in refusing to admit into evidence a newspaper television program schedule.

We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

FACTS

The Rockwell Federal Credit Union in Anaheim, California was robbed on May 21, 1984. That afternoon, Ruby Saenz, a Rockwell employee, left the Credit Union building carrying a briefcase containing $50,000 in $50 bills with which to replenish the Credit Union's automatic teller machines. The briefcase also contained approximately $38,000 in deposits comprised primarily of personal checks, Rockwell payroll checks, and some cash. Upon reaching her car, Ms. Saenz was approached by a black male who pushed her into her car, grabbed the briefcase, and fled in a car which was parked nearby. Ms. Saenz clearly saw the assailant's face. She also noted the getaway car's license number. On May 23, 1984, upon viewing a photospread of potential suspects put together by the FBI, Ms. Saenz identified David Lee Pace as the robber. On the day Ms. Saenz was viewing the photographs, Pace was in Barstow, California where he purchased a 1970 Cadillac for $1,450. Payment was made with twenty-nine $50 bills.

On May 24, 1984, an FBI agent filed a complaint and affidavit charging David Lee Pace with the violation of Title 18 U.S.C. Sec. 2113(a), robbery of a credit union. On the basis of the complaint and affidavit, a federal warrant for Pace's arrest was issued. On June 1, 1984, Pace was arrested in Reno, Nevada for an unrelated traffic violation and for possession of marijuana. One hundred $50 bills were found in the trunk of Pace's car. Pace also had twelve $50 bills on his person. Pace was taken to the Reno City Jail where a records check revealed that he was wanted on the federal warrant for robbery of the Credit Union.

At the Reno jail, Pace was placed into the only available cell. He shared this cell with prisoner Gary Axtell. That same day he confessed the robbery to Axtell. Axtell relayed this information to Detective Joe Butterman of the Reno Police Department, and Butterman passed it on to FBI Agent Frank Nenzel. Agent Nenzel then met with Axtell. Axtell told Nenzel what Pace had told him about committing the robbery. Pace was then indicted for robbery of the Rockwell Federal Credit Union and for possession of money stolen from a credit union. He was arraigned on both counts on July 5, 1984. Prior to trial, the possession of stolen money count was dismissed. Pace's first trial ended in a mistrial when the jury was unable to reach a verdict.

At Pace's second trial, the robbery victim, Ruby Saenz, identified Pace as the robber. The getaway car, a 1975 Chevrolet, belonged to Pace's friend, Edward Woods, who had let Pace borrow the car on the day of the robbery. Gary Axtell and Pace's cousin, Richard Webb, both testified that Pace confessed the robbery to them and claimed to have split the booty with others. Axtell, who had a history of cooperating with law enforcement officials as an informant, had acted on his own initiative in encouraging Pace to reveal the details of the robbery. Axtell hoped that if he obtained this information and gave it to the Reno police, he could avoid being sent back to a prison where he was known as an informant. Neither the Reno police nor the FBI gave Axtell any money or other compensation, or made him any promises, in The jury found Pace guilty of robbery. He was sentenced to fourteen years in custody.

                exchange for his information.  No one had asked Axtell to question Pace or to "keep his ears open."    Axtell had been cooperating with Reno Police Officer Butterman by giving Butterman information about other unsolved crimes, and Butterman had told Axtell that Axtell's cooperation might benefit him in the long run
                

DISCUSSION

A. Admissibility of Jailhouse Informant's Testimony

Pace contends his sixth amendment right to counsel was violated when Axtell elicited his confession in jail, and that the confession should have been excluded from evidence at trial. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Pace argues that Axtell acted as the government's agent in obtaining the confession. Before reaching Pace's agency argument, however, we must first determine whether Pace's sixth amendment right to counsel had attached at the time he confessed to Axtell.

1. Sixth Amendment Right to Counsel

The sixth amendment guarantees that "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. Our analysis of this guarantee begins with Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). In Kirby, a plurality of the Court held that a person's sixth amendment right to counsel attaches only "at or after the time that adversary judicial proceedings have been initiated against him." Id. at 688, 92 S.Ct. at 1881. Earlier cases had held that criminal prosecution begins for sixth amendment purposes upon arraignment (Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)), preliminary hearing (Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963)), trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)), post-indictment investigation (Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)), and pre-trial, post-indictment lineup (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). ¹ After noting these cases, the Court in Kirby listed five stages at which "adversary proceedings" begin. These are upon (1) formal charge, (2) preliminary hearing, (3) indictment, (4) information, or (5) arraignment. Kirby, 406 U.S. at 689, 92 S.Ct. at 1882. The Court explained that the initiation of judicial criminal proceedings begins when "the government has committed itself to prosecute, [for it is] only then that the adverse positions of government and defendant have solidified." Id. ²

Pace was neither indicted nor arraigned at the time he confessed to Axtell. An information had not been filed. No preliminary hearing had been held. Pace was We have recognized that the "core purpose" of the counsel guarantee is to assure aid at trial, "when the accused [is] confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U.S. 300, 309 [93 S.Ct. 2568, 2573, 37 L.Ed.2d 619] (1973). Indeed, the right to counsel

however, in custody, the FBI had filed a complaint against him, together with an affidavit in support of that complaint, and a warrant for his arrest had been issued. The question we are called upon to answer is whether under these circumstances Pace's sixth amendment right to counsel had attached. In order to answer this question, it is necessary to examine the purpose of the sixth amendment right to counsel. In United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984), the Court stated:

"embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." Johnson v. Zerbst, 304 U.S. 458, 462-463 [58 S.Ct. 1019, 1022-1023, 82 L.Ed. 1461] (1938).

Although we have extended an accused's right to counsel to certain "critical" pre-trial proceedings, United States v. Wade, 388 U.S. 218 [87 S.Ct. 1926, 18 L.Ed.2d 1149] (1967), we have done so recognizing that at those proceedings, "the accused [is] confronted just as at trial by the procedural system, or by his expert adversary, or by both," (citation omitted), in a situation where the results of the confrontation "might well settle the accused's fate and reduce the trial itself to a mere formality." (citation omitted).

Id. at 188-89, 104 S.Ct. at 2298.

Although Gouveia involved the placement of prison inmates into administrative detention, the Court stated that the sixth amendment right to counsel does not attach upon arrest. Gouveia, 467 U.S. at 190, 104 S.Ct. at 2298-99. The Court in Gouveia reversed this circuit's decision in which, by analogy to the sixth amendment speedy trial guarantee, we had held that the right to counsel...