U.S. v. Stevens

• Decision Date: 08 May 1996
• Docket Number: No. 1041,D,1041
• Citation: 83 F.3d 60
• Parties: , 44 Fed. R. Evid. Serv. 481 UNITED STATES of America, Appellee, v. Michael T. STEVENS, Defendant-Appellant. ocket 95-1346.
• Court: U.S. Court of Appeals — Second Circuit

Page 60

83 F.3d 60

64 USLW 2799, 44 Fed. R. Evid. Serv. 481

UNITED STATES of America, Appellee, v. Michael T. STEVENS, Defendant-Appellant.

No. 1041, Docket 95-1346.

United States Court of Appeals Second Circuit.

Argued Feb. 15, 1996.

Decided May 8, 1996.

Appeal from a final judgment of conviction entered in the United States District Court for the Western District of New York (Telesca, J.), challenging the admission of testimony by prisoners turned government informants and objecting to a number of the district court's other rulings.

Donald M. Thompson, Rochester, NY, for Defendant-Appellant.

Patrick H. NeMoyer, Bradley E. Tyler, Frank H. Sherman, Rochester, NY (WDNY U.S. Attorney's Office), for Appellee.

Before: MAHONEY, WALKER, and CALABRESI, Circuit Judges.

PER CURIAM:

This appeal challenges a number of district court rulings, made in the course of a lengthy and highly publicized criminal trial. Almost all of the claims raised are without merit and easily resolved. One issue--the government's use of information obtained by other prisoners from the appellant while he was incarcerated pending trial--requires more attention. We conclude that the district court did not err with respect to the testimony it admitted. But important constitutional interests are implicated whenever the government uses information obtained from a defendant, after arrest, outside the presence of that person's attorney. And, while the record before us amply supports the district court's holding that the government did not cross the line and use information that was obtained illegally, we write to point out how close to that line the government came.

BACKGROUND

In December 1993, five people in western New York were killed, and several others were injured, by package bombs. All of the individuals who received bombs in the mail were relatives of appellant Michael Stevens' While he was incarcerated, Stevens made several attempts to convince fellow inmates to assist him in disrupting the investigation of his crime. His trust was misplaced. At least seven of the prisoners he contacted sought to provide the government with the information they learned, in the hopes of receiving benefits in return.

                girlfriend.   After the bombings, police went to the home where Stevens and his girlfriend were living.   They wanted her to identify one of the bodies.   After meeting Stevens, the police asked him to accompany them to the police station to answer some questions.   He agreed and went with them.   During the questioning that followed, Stevens--who was clearly not yet under arrest--made several incriminating statements to police officers.   That same night, his co-defendant, Earl Figley, confessed to sending the bombs and implicated Stevens.   Some time thereafter, Stevens and Figley were charged with unlawfully transporting, possessing, and using explosive devices to damage property and cause death, in violation of 18 U.S.C. §§ 2, 842(a)(3), 844(d), 844(i), and 924(c)(1) and 26 U.S.C. §§ 5861(d) and 5871
                

At trial, defense counsel objected to the introduction of testimony from these inmates, arguing that the information being proffered was obtained in violation of Stevens' constitutional right to counsel because the prisoners were acting as government informants when they received it. Although the government conceded that some of the testimony was properly excluded, it argued, and the court agreed, that evidence provided by three of Stevens' fellow inmates was admissible.

One of these, Maximillion Franco, testified to conversations in which Stevens asked him to locate someone who could make a payment on a rental storage locker. Some of Stevens' statements concerning the locker led Franco to believe that the locker might contain explosives. After Stevens gave Franco the locker number and the telephone number of the storage facility, Franco called the government and offered to make this information available to them.

In court, Franco said that he had had two conversations with government agents. During the first, he obtained a promise that if he provided the government with useful information he would receive some cash benefit. At the second, six days later, he gave the government the evidence that he had gotten from Stevens. Franco ultimately received $600 for his testimony. In addition, since he was to be extradited to Texas (where he is currently jailed) he was promised a letter to his parole board there, describing his cooperation. The district court concluded that all of the incriminating information had been received by Franco before he had initiated contact with the government. At that time, he was not yet a government informant. Accordingly, the court held that his testimony was admissible.

Barry Berman, another prisoner, testified that Stevens sought his help in formulating an alibi for December 27 and 28, 1993. Stevens gave Berman three documents--one statement to be signed by Stevens' mother, and two to be signed by his co-defendant. He asked Berman to give the statements to Stevens' girlfriend, who would then get the signatures. Berman stated that Stevens had said that he intended to kill the co-defendant after the co-defendant had signed the alibi.

Like Franco, Berman had several conversations with government agents. Though Berman had initiated contact with the government agents and had met with them two or three times while still in jail, only later, when he was free, did he give the government the documents he obtained from Stevens. Berman admitted, moreover, that it was after he had telephoned the government, and offered to cooperate, that Stevens had given him some of the documents. But he said that this had happened solely at Stevens' own direction. Berman also stated that he received approximately $700 in exchange for his cooperation.

A third government witness, David Streb, testified that Stevens had talked with him about Stevens' plan to kill his co-defendant. Streb immediately contacted government agents and offered to provide them with information. In exchange, he hoped to get his own sentence shortened. Streb had several meetings with Stevens after this initial contact with the government. In some of these On the basis of this and much other evidence, Stevens was convicted on sixteen counts related to the possession and use of explosive devices. He was sentenced to four terms of life imprisonment without possibility of parole, and several other terms of years to be served either concurrently or consecutively with these life terms. He now appeals, asking this Court to reverse his conviction because of the use of testimony allegedly obtained in violation of his constitutional rights. He also claims a variety of other trial errors.

                Streb received a variety of incriminating documents from Stevens.   According to Streb's testimony, he contacted the agents on a Friday and set up a meeting with them for the following Monday.   On his own initiative, he used the intervening weekend to obtain the incriminating documents.   In return for the information, the government posted $500 bail for Streb
                

DISCUSSION

A. The Testimony by Stevens' Fellow Inmates

Stevens contends that the government's use of testimony offered by inmates with whom he had spoken while incarcerated violated his Sixth Amendment right to counsel under the rule announced in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Massiah, the Supreme Court held that it is a violation of the Sixth Amendment right to counsel for a private individual, acting as a government agent, to "deliberately elicit[ ]" incriminating statements from the accused. Id. at 206, 84 S.Ct. at 1203. The Massiah rule covers only those statements obtained as a result of an intentional effort on the part of the government, so information gotten before the inmates became agents/informants is not protected by the rule. If, however, an informant obtains some initial evidence, approaches the government to make a deal on the basis of that information, and then--with the backing of the government--deliberately elicits further evidence from an accused, the materials gotten after such government contact are properly excluded under the Massiah rule.

Stevens argues that the three inmates to whom he gave the incriminating statements and documents admitted at trial were acting as government informants throughout their communication with him. Although he apparently concedes that his initial contact with each of them occurred before they had formalized agreements with the government, Stevens asks us to conclude that they were informants within the meaning of Massiah throughout their interactions with him. He argues that if an inmate receives information from another inmate and subsequently transmits it to the government, that information is inadmissible under the Massiah rule whenever the information is received in the hope of exchanging it for a benefit (for example, trading it for a reduction in sentence).

This contention fails for two reasons. First, to treat every inmate who hopes to cut some future deal as a "government informant" is to extend the idea behind Massiah far beyond its natural reach, and that we are not willing to do. Second, Stevens himself initiated the conversations with Franco, Berman, and Streb during which they obtained the challenged information. And the Massiah rule does not apply to statements made completely voluntarily by an accused. United States v. Accardi, 342 F.2d 697, 701 (2d Cir.), cert. denied, 382 U.S. 954, 86 S.Ct. 426, 15 L.Ed.2d 359 (1965).

Massiah is supposed to cover situations that "look" like government interrogations. Just as the Sixth Amendment is not violated--even after counsel has been requested--if a defendant begins confessing to police officers without any prompting or questioning by those officers, so the right to counsel is also not infringed when a defendant approaches an informant and admits to a...