U.S. v. Valencia

• Decision Date: 02 September 1976
• Docket Number: Nos. 75-1342,s. 75-1342
• Citation: 541 F.2d 618
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elmo VALENCIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Patty ZEPLIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. RANDALL V. COMPANY, Defendant-Appellant. to 75-1344.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 618

541 F.2d 618

UNITED STATES of America, Plaintiff-Appellee, v. Elmo VALENCIA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Patty ZEPLIN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. RANDALL V. COMPANY, Defendant-Appellant.

Nos. 75-1342 to 75-1344.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1975.

Decided Sept. 2, 1976.

Gregory T. Merritt, Toledo, Ohio (Court appointed CJA), for appellant in No. 75-1342.

Joseph A. Flores, Toledo, Ohio (Court appointed CJA), for appellant in No. 75-1343.

Harland M. Britz, Toledo, Ohio, for appellant in No. 75-1344.

Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Patrick J. Foley, Toledo, Ohio, for appellee.

Before EDWARDS, PECK and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is a consolidated appeal in which all three defendants challenge their convictions for conspiracy to import cocaine, and one defendant challenges his conviction for the substantive offenses of possession and distribution of cocaine. The principal issue is whether the intrusion into an attorney-client relationship by a paid government informant who acted as the secretary of appellant Company's lawyer requires setting aside the convictions. We hold that if, on remand, any prejudice is shown as a result of the intrusion, the district court should order a new trial or dismissal of the indictments, as circumstances dictate.

An indictment was returned on September 25, 1974, charging nine persons ¹ with conspiracy to import and distribute cocaine. 21 U.S.C. §§ 841(a)(1), 952(a), 955, 960(a)(1), 960(a)(2). In addition, Company and Oxley were charged with illegal possession and distribution of cocaine. On October 21, 1974, a trial on these charges commenced. ²

At the trial, government witnesses testified that appellant Company traveled from Detroit, Michigan to Bogata, Columbia, where he purchased cocaine from Elmo Valencia, a resident of Columbia. Appellant Patty Zeplin lived with Valencia at the time. The Government contended at trial that Valencia, with the assistance of Zeplin, sold cocaine to Company and to defendants Oxley and Everhart to import into the United States. In addition, Valencia helped Company and his associates to obtain specially lined boots in which to conceal the cocaine to frustrate a customs search. Company and an unindicted associate of his, Greg Ford, returned to the United States in January, 1973. A customs agent discovered the cocaine that Ford was carrying when he re-entered the country and arrested him for attempting to smuggle cocaine into the United States.

Another government witness, Robert Klein, testified that Company arranged for cocaine to be mailed to Klein's address, but to a fictitious person. On June 20, 1973, the day the cocaine was delivered to Klein's home, customs agents arrested and jailed Klein, his wife, and Company on charges of conspiracy to violate federal narcotics laws. The next morning, attorney Samuel Antonelli arranged release for Company and the Kleins on their own recognizance. At trial, there was testimony that Antonelli arranged for Company to sell cocaine to a man identified as Alan Mayes to enable him to pay Antonelli his $500 retainer fee. There was also testimony that on the same day, Antonelli sold cocaine to defendants Brooks and Cunningham. Susan Reichard, Antonelli's girl friend and secretary, was present in Antonelli's apartment where the discussions and narcotics transactions took place. At trial, she testified, over objection, about the drug transactions that took place there on June 20, 1973.

On cross-examination it was shown that Reichard had been a paid government informant since March 1973. At this point, the district judge excused the jury and conducted an inquiry into the extent of the information obtained by the Government through its informant, Reichard. Agent McGann of the Drug Enforcement Administration testified that he had received a phone call from Reichard on July 18, 1973, in which she explained about the arrest of the Kleins and Company on June 20 on smuggling charges. She also indicated that Antonelli had made arrangements for Company to sell cocaine to Mayes and Brooks. During the course of the court's inquiry, it was shown that Miss Reichard customarily made notes of Antonelli's meetings with his clients and placed these notes in his files. It was also shown that on July 24, 1973, Reichard had shown two government agents some of attorney Antonelli's files, including a file on Randall Company. One of the agents admitted obtaining photocopies of materials from Antonelli's file on Company.

After hearing the testimony of government agents who obtained this information from Reichard, the district court ordered the jury to disregard all of Reichard's testimony, and then dismissed the indictment with respect to Antonelli, Brooks, Mayes and Cunningham. The district judge made this observation in concluding that the indictments against Mayes, Brooks and Cunningham should be dismissed:

I am satisfied that so far as the Defendants Mayes, Brooks and Cunningham are concerned the Government would have no case whatever against them if they had not been engaging in this spying business, and so they did gain additional information, did confirm what they were suspecting and knowing, and it did enable them to have these three defendants indicted . . . . Certainly these three defendants are affected by the fruit of the poisonous tree, and as to them I can see no proper relief in law except a dismissal of the charges against them.

The district court was understandably outraged by Antonelli's involvement in a criminal conspiracy with his clients and branded him as being "beneath contempt." Nevertheless, he appropriately refused to permit "the law in its majesty . . . to be equally slimy" and reluctantly dismissed the charges against him.

However, with respect to Company, Valencia, and Zeplin, the district judge determined that the Government's case "probably (would) have developed about the same way it has developed" without Reichard's disclosure of privileged information to the authorities, and that the interests of justice would not be served by dismissing the charges against them. Accordingly, the trial proceeded against the three appellants, and was concluded when the jury returned verdicts of guilty against Company and Valencia on all counts, and the judge, who had heard Zeplin's trial upon her waiver of a jury trial, determined that she was guilty.

This case presents difficult questions about the appropriate relief that should be granted where it has been shown that the Government, in an excess of zeal, improperly intruded into an attorney-client relationship and thereby obtained information about persons under investigation. Appellant Company contends that his Sixth Amendment right to effective assistance of counsel was violated by the government's intrusion into his relationship with his attorney. The other appellants contend that, although they did not have an attorney-client relationship with Antonelli, their convictions should also be reversed because the Government's improper intrusion tainted the prosecution against all defendants. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

As a preliminary matter the Government contends that no privileged attorney-client relationship existed between Company and Antonelli because the communications between them were for the purpose of committing or planning to commit a crime. United States v. Hoffa, 349 F.2d 20, 37 (6th Cir. 1965), aff'd, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). Although Antonelli was alleged to have participated in the sale of cocaine, nevertheless it is clear that he also had discussions with Company for the purpose of defending him on smuggling charges. The evidence reveals that Antonelli asked his secretary to make notes about these discussions, and that he represented Company at a bail hearing on the smuggling charges. These activities were all lawful and clearly fall within the ambit of the attorney-client privilege. Accordingly, we must hold that if the Government obtained information about Company's involvement in the smuggling offense as a result of its intrusion into the attorney-client relationship, Company's Sixth Amendment rights are implicated.

Valencia and Zeplin did not retain Antonelli as their attorney and accordingly they did not have an attorney-client relationship with him. Nevertheless, we hold under our supervisory authority over the conduct of federal prosecutions that they are entitled to the same relief that Company receives. If tainted information was used to convict appellants, they also are entitled to a new trial or dismissal of the indictment, whichever is appropriate under the circumstances.

The Government also contends that Company's Sixth Amendment rights were not violated because the government interference related to smuggling charges brought in Detroit (which were later dismissed) that were unrelated to the charges brought against him in Toledo. The Government contends that the Sixth Amendment right that Company asserts is a right limited to "government intrusions into the attorney-client relationship at the time of the trial . . . ." We do not view the dismissal of the smuggling charges as terminating Company's prosecution. The offenses with which he was charged and of which he was convicted appear to grow out of the same dealings that were the subject of the smuggling charges. In addition, we do not believe that the Sixth Amendment right to effective assistance of counsel is solely a trial right. In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), the Supreme Court held that an accused was entitled to consult with his attorney at the time the investigative process became an accusatory process. That is the point at which Sixth Amendment rights are implicated and it...