U.S. v. Stephens

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Decision Date	07 January 1980
Docket Number	No. 79-5130,79-5130
Citation	609 F.2d 230
Parties	UNITED STATES of America, Plaintiff-Appellee, v. Harry STEPHENS, Jr. and Claude Lee Hooper, Defendants-Appellants. Summary Calendar. *
Court	U.S. Court of Appeals — Fifth Circuit

Page 230

609 F.2d 230

UNITED STATES of America, Plaintiff-Appellee, v. Harry STEPHENS, Jr. and Claude Lee Hooper, Defendants-Appellants.

No. 79-5130

Summary Calendar. *

United States Court of Appeals, Fifth Circuit.

Jan. 7, 1980.

Bruce Budner, Dallas, Tex. (Court-Appointed), for defendants-appellants.

Shirley Baccus-Lobel, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before RONEY, HILL and KRAVITCH, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Appellants Hooper and Stephens, along with five other individuals, were charged in a multi-count indictment with several violations of 18 U.S.C.A. § 641 and with conspiring to violate 18 U.S.C.A. §§ 641 & 2073. The district court ordered appellants severed for trial from their five codefendants. Of the other five defendants, two pled guilty, and each of the remaining three were convicted by a jury of conspiracy and two substantive violations. Prior to the start of appellants' trial, defense counsel and the United States Attorney agreed to a stipulation to the effect that the transcript of the prior trial would be admitted at appellants' trial without objection from either side. 1 Each side reserved the right to offer additional evidence at trial. As part of the bargain, the government agreed to drop all but one of the substantive counts against Hooper and Stephens and to prosecute the remaining substantive counts as misdemeanors. After questioning the attorneys and appellants, the district court accepted the stipulation and ordered that it be filed. A bench trial was held and appellants were found guilty on all counts.

Appellants first argue that they were denied their Sixth Amendment right of confrontation by having stipulated to being tried, for all intents and purposes, on the transcript of the prior trial.

While the right to confront and cross-examine witnesses has long been viewed as fundamental to the type of fair and impartial trial which our Constitution guarantees every defendant in a criminal case, See Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), there is no doubt that the right can be waived, See Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). The issue we confront in this case is whether counsel, by stipulating to the admission of evidence, may waive his client's constitutional right to confront the source of the evidence.

While this issue appears to be one of first impression in this Court, it has received considerable attention in the Ninth Circuit and, to a lesser extent, the First and Sixth Circuits. In Wilson v. Gray, 345 F.2d 282 (9th Cir. 1965), defense counsel, without objection from his client, stipulated that the case be heard on the transcript of the preliminary hearing. Although each side reserved the right to introduce additional evidence, neither did so. The defendant challenged his conviction on the ground that the purported waiver was ineffective because he had not personally waived his right of confrontation. Id. at 283. Rejecting this argument, the court held that, where the defendant does not object, counsel may, as a matter of trial tactics, waive the right to confront and cross-examine witnesses. Id. at 286-88. See also Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). Wilson has been reaffirmed repeatedly by the Ninth Circuit. See United States v. Goldstein, 532 F.2d 1305, 1314-15 (9th Cir.), Cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976); United States v. Martin, 489 F.2d 674, 678 (9th Cir. 1973), Cert. denied, 417 U.S. 948, 94 S.Ct. 3073, 41 L.Ed.2d 668 (1974); Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971), Cert. denied, 409 U.S. 854, 93 S.Ct. 187, 34 L.Ed.2d 97 (1972); Symons v. Klinger, 372 F.2d 47, 50 (9th Cir. 1967). And the First and Sixth Circuits have decided the issue in the same manner. See Palfy v. Cardwell, 448 F.2d 328, 330 (6th Cir. 1971); Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir. 1954). But see Phillips v. Wyrick, 558 F.2d 489, 496 (8th Cir. 1977), Cert. denied, 434 U.S. 1088, 98 S.Ct. 1283, 55 L.Ed.2d 793 (1978) ("A waiver of the confrontation right must be effected personally by an accused who is acting intentionally and knowledgeably. . . . (A)nd a choice to waive made by counsel Not participated in by petitioner does not automatically bar relief to the petitioner.") (emphasis added).

We find the reasoning of these cases persuasive, and today hold that counsel in a criminal case may waive his client's Sixth Amendment right of confrontation by stipulating to the admission of evidence, so long as the defendant does not dissent from his attorney's decision, and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy. 2

Applying this standard to the instant case, we conclude that appellants' right of confrontation was effectively waived by their attorney. Before the stipulation was accepted by the district court, the following colloquy took place:

THE COURT: Mr. Newth, do those correctly recite the stipulations and agreements that you've entered into on behalf of Mr. Stephens and Mr. Hooper?

MR. NEWTH: Yes, they do, Your Honor.

THE COURT: All right. And Mr. Stephens, Mr. Hooper, you've heard the stipulations read and the statements by your counsel. Is that Do they correctly and accurately reflect your agreement?