U.S. v. Solomon

• Decision Date: 15 June 1982
• Docket Number: No. 81-2117,81-2117
• Citation: 679 F.2d 1246
• Parties: UNITED STATES of America, Appellee, v. Allan SOLOMON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1246

679 F.2d 1246

UNITED STATES of America, Appellee, v. Allan SOLOMON, Appellant.

No. 81-2117.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 11, 1982.

Decided June 15, 1982.

Barry A. Short, Thomas M. Newmark, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for appellant Allan Solomon.

Thomas E. Dittmeier, U. S. Atty., Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, STEPHENSON ^* and McMILLIAN, Circuit Judges.

STEPHENSON, Circuit Judge.

Defendant Allan Solomon asks this court to dismiss an indictment entered against him for distribution of approximately two ounces of cocaine in violation of 21 U.S.C. § 841(a)(1). Solomon claims that the actions of Drug Enforcement Agency officers improperly and prejudicially abrogated his Sixth Amendment right to effective assistance of counsel. His other primary claim is that the indictment is invalid as a violation of his constitutional and statutory rights to a speedy trial. ¹ We affirm the district court and uphold the defendant's conviction.

I. BACKGROUND

In February 1981, defendant Solomon, Marlene Peterson and Victoriano Cabezas were under investigation by the Drug Enforcement Agency (DEA) for illegal trafficking of cocaine. DEA Special Agent Henry Pyla aided this investigation acting in an undercover capacity. On February 20, 1981, Solomon, Peterson and Cabezas were arrested in connection with cocaine transactions which allegedly occurred on February 11 and 20, 1981. This arrest was made without a warrant. There is no doubt that the evidence against Solomon was substantial. The stipulated testimony indicated that DEA undercover agents purchased cocaine from Solomon.

Prior to Solomon's arrest, Agent Pyla had indicated to agents of the Federal Bureau of Investigation that Solomon could serve as a valuable informant if he would cooperate with the authorities. After his arrest, Solomon was separated from the other two defendants and advised of his Miranda constitutional rights. DEA Agent Robert Zambo told Solomon that he was in serious trouble and that he should "help himself" by cooperating with the DEA. Solomon agreed to cooperate. Agent Pyla's true identity was then revealed to Solomon. Pyla advised Solomon that it was for him to decide whether to cooperate and that any cooperation Solomon could give would be brought to the attention of the United States Attorney. Solomon was told that, because he had decided to cooperate, there would be no record of his arrest and that no formal charges were then being filed. Solomon was not told, however, that in exchange for his cooperation he would not be charged or indicted. All three defendants-Solomon, Peterson and Cabezas-were then released.

Solomon began his "cooperation" the following day. He contacted Agent Pyla with information concerning two other alleged narcotics dealers. On February 24, Solomon met with Pyla, Assistant United States Attorney Dick Poehling and DEA Agent Judy McCoy. The investigative role envisaged for Solomon and potential targets were discussed. ² After Poehling left the meeting, Solomon asked whether he should see an attorney in view of the fact that he had been arrested for alleged participation in a narcotics transaction. Pyla told Solomon that the decision to hire an attorney was Solomon's and that, if he hired an attorney, he could not deal directly with the agents, but would have to deal indirectly through his attorney and the United States Attorney's Office. From this statement both the agents and Solomon understood that, if he did hire an attorney to represent him during this investigation, it was likely that his cooperation would be limited and less fruitful because the direct relationship between him and the agents would be terminated. ³ Pyla also told Solomon that it would be necessary for the DEA to seize Solomon's Blazer vehicle because it had been used in an illegal narcotics transaction.

Shortly after this meeting, Solomon contacted an attorney named Edward McSweeney. In the process of investigating Solomon's case, McSweeney contacted the Assistant United States Attorney Poehling. Just prior to March 11, Poehling informed Agent Pyla that the defendant had retained counsel and that any future contacts with Solomon would have to go through the United States Attorney's Office to McSweeney. On March 11, either one or two days after learning that Solomon had retained counsel, Pyla seized Solomon's vehicle pursuant to 21 U.S.C. § 881.

Agent Pyla denied the implication that the vehicle was seized in retaliation for Solomon's contacting an attorney. Pyla testified that, although it could have been done as early as February 20, the delay in seizing the Blazer was because of a delay in completing the necessary paperwork and because he had just returned from a vacation. ⁴

Shortly after the seizure of the vehicle, Solomon dismissed his attorney. Solomon then told Agent Pyla that he no longer had an attorney. Pyla asked Solomon, "Well, is it your intention to get on with what we have to do?" Solomon then agreed to cooperate with the DEA. This occurred about March 18.

Solomon met several times with the DEA agents and representatives of the FBI over the next month and a half. He provided information which resulted in federal prosecutions in the federal district court in Iowa. Also, at these meetings, Solomon made inculpatory statements. These statements were confessions concerning the activities of February 11 and 20. They also included an agreement to testify before the grand jury and at a subsequent trial against any accomplices or co-conspirators. Neither of these statements were used against Solomon to establish guilt but were used as mitigating factors prior to sentencing. Solomon signed a written warning and waiver of rights form with regard to both statements and was provided an opportunity to retain counsel prior to making the statements. On April 30, Solomon refused to cooperate further.

On May 5, 1981, a complaint was filed against Solomon charging him with distribution of cocaine. On May 29, he was indicted with one count of cocaine distribution. In a separate indictment filed on the same day, Solomon was charged with conspiracy to distribute, distribution and interstate travel to distribute cocaine, along with Peterson and Cabezas.

Prior to trial, Solomon moved to dismiss the indictments because of (1) governmental misconduct which interfered with his right to counsel under the Sixth Amendment, (2) the indictments breached the government's promise not to prosecute, and (3) the indictments were filed in retaliation for his failure to cooperate with the government. The magistrate took testimony over three days. The magistrate held, and the district court concurred, that the DEA agents had improperly intruded into the attorney-client relationship. The magistrate concluded that evidence concerning Solomon's introductions of undercover agents to others which led to the Iowa federal prosecutions should be suppressed as to Solomon because there was a causal connection between the constitutional violation and the gathering of this evidence.

However, because Solomon had been apprised of his rights and had been given the opportunity to obtain counsel prior to making self-incriminating statements, there was no causal connection between the violation and the defendant's statements. ⁵ The magistrate thus concluded that the appropriate remedy was the suppression of certain evidence, not dismissal of the indictment, citing United States v. Morrison, 449 U.S. 361, 101 S.Ct. 665, 66 L.Ed.2d 564 (1981). With regard to the other claims, the magistrate concluded that the record did not support a finding of prosecutorial vindictiveness or that Solomon had been promised that no indictment would issue if he cooperated.

II. DISCUSSION

A. Sixth Amendment Claim

The appellant argues that the indictment should be dismissed because of the interference by Agent Pyla and others with his Sixth Amendment right to counsel.

The crucial precedent in the case at bar, as noted by the magistrate, is United States v. Morrison. In Morrison, the Court held that even when the government deliberately violated the defendant's Sixth Amendment rights by questioning her without her attorney's knowledge or permission, criticizing her counsel and threatening her with a long jail term if she did not cooperate, dismissal of the indictment was not a proper remedy in the absence of demonstrable prejudice to the defendant. United States v. Morrison, supra, 449 U.S. at 365, 101 S.Ct. at 668. ⁶ The Court held that such a drastic remedy is unnecessary when the prejudice to the defendant can be remedied by a new trial or the suppression of evidence. Id. at n.2, 101 S.Ct. at 668 n.2. This was true even though these remedies, just as in the case at bar, would not have benefited the particular defendant. Even when the intrusion is deliberate or improperly motivated, dismissal is not warranted. The Court stated that cases involving Sixth Amendment deprivations are subject to the rule that remedies should be tailored to the injury suffered from the constitutional violation, that is, remedies should be limited to denying the government use of the results of its intrusion. Id. at 364, 366, 101 S.Ct. at 667, 669.

In this case, the evidence used to convict Solomon was obtained prior to the constitutional violation. ⁷ Information gathered after the Sixth Amendment intrusion, including Solomon's inculpatory statements, was not used to support the conviction. Thus the issue is clearly framed. The defendant must show that the representation he received or the proceedings leading to the conviction were adversely affected by virtue of the Sixth Amendment violation in order to obtain a dismissal of the indictment. ⁸

In order to satisfy this test, the defendant argues that he was prejudiced by being without an attorney during March and April. He claims that if he had...