U.S. v. Weiss
| Citation | 599 F.2d 730 |
| Decision Date | 30 July 1979 |
| Docket Number | No. 78-5491,78-5491 |
| Parties | 5 Fed. R. Evid. Serv. 82 UNITED STATES of America, Plaintiff-Appellee, v. Russell WEISS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Herbert Shafer, Atlanta, Ga., Robert Lee Cook, Sr., Summerville, Ga., for defendant-appellant.
James M. Deichert, Sp. Atty., U.S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before TUTTLE, GODBOLD and RUBIN, Circuit Judges.
Russell Weiss, the manager of a nightclub in Atlanta, Georgia, was considered a "small fish in an ocean of whales" in the alleged involvement of organized crime with the Atlanta nightclub industry. This case concerns efforts by the Atlanta offices of the Justice Department's Organized Crime Strike Force (Strike Force) and the Federal Bureau of Investigation to catch Weiss and in turn use him as bait for the whales. Weiss protests that the government's tactics in hooking him and reeling him in warrant reversal of his convictions for unlawfully receiving a firearm as a convicted felon, 1 bribing a police officer to influence his testimony before a federal grand jury, 2 and obstructing justice by soliciting false testimony before a federal grand jury. 3
Specifically, Weiss presents three contentions: that the government breached a promise not to prosecute him for these offenses in return for his cooperation in the government's investigation of the Atlanta nightclub industry; that Strike Force attorneys and FBI agents violated his right to counsel during questioning about the nightclub industry by deterring him from having counsel present; and that the government's conduct throughout its dealings with him was so flagrant as to violate due process. We affirm his convictions.
The evidence underlying the charges in this case is not in dispute. To the extent that the parties do differ, we view the evidence in the light most favorable to the government. 4
On May 17, 1977, a shooting incident occurred at the "Club Stripper" where appellant Weiss was employed as manager. An Atlanta police officer, John Woodward, pursued and arrested the shooting suspects and seized from them a Colt .45 handgun. When Woodward took the suspects and the handgun back to the nightclub for identification, Weiss identified the gun as his. He repeated this identification at the assailants' preliminary hearing and state grand jury inquest.
Subsequent investigation by the Atlanta police revealed that the weapon had been stolen in Georgia in 1976. Two months later, on July 27, Woodward sought a warrant for Weiss' arrest, charging him with receipt of stolen property in violation of Georgia law. 5
During the initial investigation, Woodward also contacted FBI Special Agent William Whitley about the possibility that Weiss, previously convicted in Minnesota of theft by check, a felony in that state, 6 had violated federal firearms law. 7
On September 8, while receipt of stolen property charges against Weiss were still pending in state court, but with the likelihood of prosecution uncertain, Weiss approached Woodward at another nightclub late one night and told him "it would be worth $500 for me not to be indicted." During this conversation, Weiss mentioned that he had previously bribed another Atlanta policeman.
The following morning, Woodward reported this conversation to his superior. He also reported it to Agent Whitley of the FBI. At a meeting with FBI agents, Woodward agreed to cooperate with them in an investigation and executed a form consenting to wear a "body bug." Later that day he was served with a subpoena to testify before a federal grand jury about Weiss' possession of the handgun and his mention of police bribes, and he was outfitted with the recording equipment. Wearing the body transmitter and accompanied at a distance by FBI agents conducting surveillance, Woodward went looking for Weiss. In the early morning of the following day, he located him, and Weiss gave Woodward $500 to sabotage the state case.
Three nights later, again wearing the body transmitter and under surveillance, Woodward sought out Weiss and showed him the subpoena he had received to testify before the federal grand jury. In response, Weiss offered Woodward $750 if Woodward would prevent him from being prosecuted on federal firearms violations. Two days later, Woodward sought out Weiss once more. The latter told him he did not have the money and to come back later. Woodward was unable to find Weiss later in the evening. Finally, four nights later, the two met and, in a dark parking lot, Weiss handed Woodward $750. This transaction, as well as the previous payment of $500 and several intervening conversations were all recorded on tapes which were introduced at trial. The FBI also took surveillance photographs which included photos of the meeting in the parking lot.
Once Weiss was caught in this web of evidence, the FBI and the Strike Force proceeded to make use of their catch. What followed was the basis of motions by Weiss to dismiss the indictments against him. The motions were the subject of two hearings before a magistrate and a de novo evidentiary hearing before the trial judge. The district court found that, after their investigation of Weiss, FBI agents Whitley and Fred Ruhlman met with Strike Force attorneys James Deichert and William L. McCulley and agreed on a plan to obtain Weiss' cooperation in the Strike Force investigation of Atlanta nightclubs. Nine days before an indictment of the firearms charge was handed down by the federal grand jury, Whitley and Ruhlman called on Weiss at his home. Whitley told Weiss "I'm going to play a hand of poker with you, but in this instance I'm going to lay my cards on the table." Then he laid out a series of FBI surveillance photographs taken of Weiss and offered to play cassette tapes of Weiss' meetings with Woodward. Whitley cautioned Weiss that they were not there to question him on anything concerning his dealings with Woodward and did not want him to volunteer any statements. The agents explained that they had been investigating the nightclub industry and thought Weiss could be very helpful in this investigation, could "blow the lid off this town." They were instructed to ask his cooperation in this investigation; specifically, they invited him to meet with the Strike Force. The court found Whitley and Ruhlman told Weiss that, although only Strike Force attorneys had authority to promise him anything and they themselves had none, if he did cooperate he might even "walk away scot free."
If he wished to cooperate, Whitley and Ruhlman told Weiss, he should contact them before 4:00 p. m. the next day. In the meantime, he could consult with an attorney if he wished. The agents said they knew he had used an attorney, Ernest Brookins, in his state proceedings; the court found they advised him that although he could consult with Brookins, it might not be in his best interest to do so. 8
Weiss accepted their offer the next day, and the day following that he was escorted to the Strike Force office. There he met with Strike Force attorney Deichert. The district court found it undisputed that Deichert told Weiss at the outset that the Strike Force had enough evidence to indict him on the charges at issue here and fully intended to go forward with the case. Weiss testified that, at some later point in the discussion, Deichert told him he might go "scot free." Shortly afterward, while Deichert and other attorneys were out of the room, FBI Agent Ruhlman told Weiss that if he cooperated "100 percent," Ruhlman would speak with Strike Force attorney McCulley about the "possibility" of no indictment.
During their discussion, Deichert reiterated the agents' statement that the government sought no further information on charges against Weiss and did not want any statements from him. Instead, Deichert sought Weiss' cooperation in the investigation of the Atlanta nightclub industry and Atlanta Police Department. The district court found that Deichert told Weiss any cooperation he gave would bear on the charges against him at the time of sentencing; the prosecution would tell the sentencing judge of his cooperation, its extent, and its value.
Deichert also told Weiss he could have an attorney present, including Ernest Brookins if he so chose. However, Deichert told Weiss he believed it would be in Weiss' "best interests" to be represented by someone other than Brookins. Asked if he wanted counsel present, Weiss said no.
Deichert then proceeded to question Weiss about the Atlanta nightclub industry. At the end of the questioning, Deichert told Weiss he was not satisfied that Weiss was being completely truthful, and offered the opportunity to respond to further questioning. Two days later, Weiss met with Strike Force attorneys a second time. Again, Deichert was not satisfied, and Weiss' role as an informant ended.
Based on these findings, the district court ruled that there was no actual plea bargain or immunity agreement between Weiss and the Strike Force, nor did Weiss justifiably rely on any apparent agreement. In addition, the court ruled, Weiss had not been denied the presence of counsel, and any interference with his attorney-client relationship with Ernest Brookins had not prejudiced him.
Several questions arise in considering Weiss' contention that the government promised him he would not be prosecuted on the firearms, bribery, and obstruction of justice charges in return for his cooperation in the Strike Force investigation. First, we are presented with the question whether such a promise would require dismissal of the indictment against Weiss or reversal of his convictions. Second, we must review the district court's determination that no promise was made to Weiss. Branching off from this second...
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