U.S. v. Singer

• Decision Date: 26 February 1986
• Docket Number: No. 84-5156,84-5156
• Citation: 785 F.2d 228
• Parties: UNITED STATES of America, Appellant, v. Mark Lewis SINGER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 228

785 F.2d 228

UNITED STATES of America, Appellant, v. Mark Lewis SINGER, Appellee.

No. 84-5156.

United States Court of Appeals Eighth Circuit.

Submitted May 16, 1985.

Decided Feb. 26, 1986.

Ronald I. Meshbesher, Minneapolis, Minn., for appellant.

Frank Noel, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before BRIGHT, ^* ROSS and JOHN R. GIBSON, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Mark Lewis Singer again appeals after a second jury trial from a conviction of conspiracy to possess and distribute marijuana in interstate commerce, in violation of 18 U.S.C. Sec. 371 (1982), and attempt to distribute marijuana and to aid and abet in the attempt to distribute marijuana, in violation of 21 U.S.C. Sec. 846 (1982) and 18 U.S.C. Sec. 2 (1982). Singer challenges the conviction on five grounds. He argues principally that the prosecution's acquisition and review of his attorney's trial strategy file, and subsequent prejudicial statements to the press, resulted in a denial of his sixth amendment right to effective assistance of counsel. He also contends that the fifth amendment protection against double jeopardy should have precluded his retrial when his first conviction was reversed on the basis of judicial misconduct. He seeks dismissal of the indictment, or alternatively, reversal of the conviction and a new trial. We affirm the judgment of conviction.

Singer initially was tried and convicted in a jury trial concluding on December 18, 1980, before Judge Miles W. Lord. ¹ The conviction was affirmed by a divided panel, United States v. Singer, 687 F.2d 1135 (8th Cir.1982), but reversed on the basis of judicial misconduct by this court en banc, United States v. Singer, 710 F.2d 431 (8th Cir.1983). This court concluded that Judge Lord's conduct "fell below the Plimsoll line of fairness and the appearance of fairness," id. at 437 (footnotes omitted), and thus "prevented the defendants from having their guilt or innocence determined in a proceeding free of the fatal appearance of unfairness." Id. at 432. ²

Retrial was set for September 14, 1983, before Judge Diana E. Murphy. ³ Five days before trial, the United States Attorney delivered to Singer's counsel, Ronald I. Meshbesher, a letter enclosing materials that he stated "came into possession of the United States from a non-government source." Appellant's Addendum at 2. The materials were copies of 56 documents from Meshbesher's attorney-client file relating to his representation of Singer. Singer moved immediately to dismiss the indictment for prosecutorial misconduct.

At the motion hearing, Assistant United States Attorney Daniel W. Schermer, who had tried the government's case against Singer, testified that the confidential documents were obtained two years after Singer's conviction by Minneapolis Police Sergeant Ronald Johnson. The source was Marshall Stoll, an indicted co-conspirator of Singer who was a fugitive at the time of the first trial, who in turn had received them from a third person. Schermer further stated that Stoll, before delivering the documents, claimed that they provided proof that perjury had been committed at trial. During the opening days of the motion hearing, reports appeared in the news media quoting the Minneapolis Chief of Police and Judge Lord, then Chief Judge, that the contents of the confidential file showed that Gilbert Singer, the defendant's father, had at trial committed perjury and had done so with Meshbesher's approval. Similar statements issued from the United States Attorney's office. Then, on September 20, 1983, Judge Lord sent a letter to Judge Murphy stating that "it has been my experience that defense counsel in criminal cases are much more interested in questions than in answers," Appellant's Addendum at 26, and offering to testify in the Singer matter. Schermer also testified at the hearing that between the time of Singer's conviction and his filing of post-trial motions, Judge Lord had initiated an ex parte meeting with Schermer to express his concern over the adequacy of the trial record. According to Schermer, Judge Lord urged the government to provide additional documentation to avoid reversal on appeal.

Based on the statements and conduct of Judge Lord, the United States Attorney's office, and police officials, Singer moved to enlarge the basis of his motion to dismiss the indictment to encompass governmental misconduct. He further moved for Judge Murphy's recusal because of her position as judge in the district in which Judge Lord was chief judge. Finally, because he believed that the newspaper statements and the possibility of prosecution for subornation of perjury would chill his ability to zealously represent Singer, Meshbesher requested the court's permission to withdraw from the case. Singer consented to Meshbesher's withdrawal as trial counsel, provided that Meshbesher continue to represent him on the motion to dismiss the indictment. Judge Murphy granted the request.

On September 27, 1983, Judge Murphy recused herself from presiding over the hearing on the motion to dismiss the indictment. Chief Judge Lay of this court then designated Judge G. Thomas Eisele ⁴ of Arkansas to rule on Singer's motion to dismiss.

Hearings Before Judge Eisele

Judge Eisele conducted hearings in November and December, and on December 21, 1983, issued oral Findings of Fact and Conclusions of Law. ⁵ Judge Eisele found that misconduct had occurred when government officials obtained the confidential attorney-client file, and again when they made prejudicial statements to the press. As a result, Singer's sixth amendment right to counsel had been violated. He concluded, however, that the violation did not warrant dismissal of the indictment. Rather, Judge Eisele fashioned remedies to remove on retrial any prejudice to the defendant that might result from the governmental misconduct and the resulting constitutional violation. Judge Eisele also found that Judge Lord had indeed initiated at least one ex parte contact with the prosecuting attorney, and concluded that the contact was improper. He concluded, however, that Judge Lord's various acts of misconduct neither would prejudice Singer on retrial nor did they demonstrate the intent to prejudice Singer required to raise a valid double jeopardy concern. Therefore, the motion to dismiss was denied.

Judge Eisele first considered the circumstances under which the government received Meshbesher's attorney-client file. Immediately before or at the time of trial in December 1980, he found, an employee in Meshbesher's law office who in no way was connected with the government or with any law enforcement agency photocopied the confidential file. Marshall Stoll, the indicted co-conspirator fugitive-turned-informant, obtained the file no later than spring 1981. Judge Eisele, to protect Stoll's fifth amendment right against self-incrimination, did not require Stoll to disclose how or from whom he had obtained the file. Stoll surrendered, pleaded guilty, and agreed to cooperate on August 19, 1982.

Judge Eisele found further that around October 1, 1982, Stoll, pursuant to the plea agreement, met with Sergeant Johnson. Both Johnson and Assistant United States Attorney Schermer already had suspected that Gilbert Singer had testified falsely. Johnson gave Stoll a transcript of Gilbert Singer's trial testimony. Stoll confirmed the government officials' suspicions. Stoll then told Johnson that he had copies of documents from the Meshbesher file, which he would supply, that could in part prove that Gilbert Singer had lied. Johnson relayed Stoll's assertion and offer to Schermer. Stoll later repeated his assertion and offer directly to Schermer. Judge Eisele found that Schermer, after examining the law, believed in good faith that the government properly could accept and examine the file. Johnson thus received the file from Stoll.

Judge Eisele, reviewing the law, agreed that the government properly may receive confidential documents if it plays no role in their wrongful procurement and if it has probable cause to believe they constitute proof of criminal activity. However, he continued, the government also must conscientiously endeavor to obtain no more documents than support the representations of wrongdoing. Stoll's representations, the Judge found, combined with the government agents' suspicions, created probable cause to permit a limited examination of the file. The Judge also found, however, that the government had made no effort to have Stoll select only the documents that substantiated his allegation, but actively encouraged him to turn over the entire file. Thus, Judge Eisele concluded, because the government did not undertake to obtain only the relevant materials, and in fact had reviewed defendant's confidential trial strategy files irrelevant to Stoll's allegation of the collateral crimes, it had knowingly intruded, though in good faith, into the attorney-client relationship. Since the intrusion threatened to prejudice defendant on retrial, the government had violated Singer's sixth amendment right to effective representation of counsel.

Judge Eisele observed, nevertheless, that the sixth amendment violation did not warrant dismissal of the indictment. Rather, he looked to United States v. Morrison, 449 U.S. 365, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981), which holds that in cases of sixth amendment violations, "absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate." Id. at 668, 101 S.Ct. at 668 (footnote omitted). He reasoned that under Morrison the proper course was to tailor a remedy that would neutralize the threat to remove upon retrial any possibility of prejudice to the defendant as a result of the governmental misconduct. Therefore, Judge Eisele denied defendants' motion to dismiss the indictment.

Judge Eisele proceeded to fashion a remedy...