United States v. Beatty, Cr. No. 27577.

• Decision Date: 07 March 1968
• Docket Number: Cr. No. 27577.
• Citation: 282 F. Supp. 202
• Parties: UNITED STATES of America v. Ronald Joseph BEATTY, Nelson Campbell and Angelo Groves.
• Court: U.S. District Court — District of Maryland

282 F. Supp. 202

UNITED STATES of America v. Ronald Joseph BEATTY, Nelson Campbell and Angelo Groves.

Cr. No. 27577.

United States District Court D. Maryland.

March 7, 1968.

Stephen H. Sachs, U. S. Atty., and Paul R. Kramer, Asst. U. S. Atty., for the Government.

Robert L. Millard, Kensington, Md., for defendant Ronald Joseph Beatty.

Russell J. White, Baltimore, Md., for defendant Nelson Campbell.

Milton B. Allen, Baltimore, Md., (Court-appointed), for defendant Angelo Groves.

FRANK A. KAUFMAN, District Judge.

Beatty, Nelson Campbell and Groves were indicted in the first count of a six-count indictment, which first count alleged conspiracy under 18 U.S.C. § 371. William Campbell, Nelson's brother,¹ was named as a co-conspirator in the first count but was not indicted as a defendant in any of the counts. Beatty, Campbell and Groves were indicted in the second count for counterfeiting activities under 18 U.S.C. §§ 471 and 2. The third and fourth counts named Campbell as a defendant for alleged violations of 18 U.S.C. §§ 474 and 2. The fifth count named Campbell and the sixth count named Beatty for alleged violations of 18 U.S.C. §§ 472 and 2.²

Groves pleaded guilty to the first count, charging conspiracy, and not guilty to the second count, and testified as a Government witness in the joint trial of Beatty and Nelson Campbell. The case was tried before a jury. Briefly, the testimony of Groves was that Beatty told Groves that Beatty was working at a press shop and could print some counterfeit money if he (Beatty) could obtain negatives; that he (Beatty) knew that Campbell had such negatives; and that Beatty felt there was some friction between himself and Campbell which made him not want to approach Campbell directly. Groves stated that he made the arrangements with Campbell under which Campbell supplied the counterfeit negatives and he (Groves) acted as the middleman between Beatty, as the printer, and Campbell, as the supplier of the negatives. Other testimony described in detail the roles played by each of the three, Campbell, Groves and Beatty.

During the trial, Beatty requested a mistrial for reasons discussed in this opinion. That motion was denied. Campbell and Beatty were each convicted by the jury on all of the counts involving each of them respectively. Beatty thereafter filed motions for a mistrial and for a new trial, which were denied after a hearing. Because of certain developments which occurred while this Court was awaiting pre-sentence reports, which developments are related in detail in this opinion, this Court suggested that Campbell and Beatty file motions for a new trial. This they have done.

Campbell's motion for a new trial has been granted because this Court, over Campbell's objection, permitted Groves and two Secret Service agents to testify concerning two post-indictment conversations between Campbell and Groves, each of which conversations had been listened to by a Secret Service agent with the knowledge of Groves, but not of Campbell.

The first of such conversations occurred two days before trial. Groves testified that Campbell telephoned to him and asked if he could meet Groves and talk to him about the case. Groves arranged to meet Campbell at the house of Groves' girl friend and notified the Secret Service. The latter sent an agent who hid behind a half-open Dutch door and listened to the conversation between Groves and Campbell. That agent and Groves testified that Campbell attempted to persuade Groves either not to testify against Campbell, or in the alternative, to name William Campbell as the person who gave Groves the negatives; and that Nelson Campbell told Groves that William would not object to Groves' so doing.

The second conversation took place the day before the trial began. Groves, after receiving a message that Campbell wanted Groves to telephone him, went to the Secret Service office in Baltimore and permitted an agent to listen to a telephone discussion between Campbell and Groves. The conversation was similar to the one the night before.

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), a co-defendant, cooperating with the Government, without Massiah's knowledge, met with Massiah in the codefendant's automobile. The Government had installed a radio transmitter in the automobile of the co-defendant. With the knowledge of the co-defendant, but without the awareness of Massiah, a federal agent listened over his radio receiver to Massiah make self-incriminating statements to the co-defendant. At the trial the agent and the co-defendant testified with regard to those statements. Mr. Justice Stewart, speaking for the majority of the Court, with Mr. Justice White, joined by Mr. Justice Clark and Mr. Justice Harlan, dissenting, wrote that Massiah had been denied his Sixth Amendment right to counsel because of the use at his trial of

* * * evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. Massiah v. United States, supra, at 206, 84 S.Ct. at 1203.

At the end of his opinion Mr. Justice Stewart concluded (at 207, 84 S.Ct. at 1203):

* * * We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant's own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial. Emphasis by Mr. Justice Stewart.

In Beatty v. United States, 377 F.2d 181 (5th Cir. 1967) (a case involving a different and apparently unrelated man with the same name as the defendant Beatty in this case), a federal agent, with the consent of a secret Government informer, but without the defendant's knowledge, hid in the trunk of the informer's automobile and listened to the defendant make incriminating statements about himself. The District Court permitted the agent and the informer to testify concerning those statements. The Fifth Circuit, in a two-to-one decision, affirmed, distinguishing Massiah because in the latter, the co-defendant had "induced"³ Massiah to talk, whereas, in the Fifth Circuit Beatty case, the defendant himself had initiated and "suggested"⁴ the conversation with the informer in order to threaten him with dire consequences if he had been informing on the defendant, and if he should testify against the defendant.

In Beatty v. United States, 389 U.S. 45, 88 S.Ct. 234, 19 L.Ed.2d 48 (1967), the Supreme Court, on October 23, 1967, three weeks after the conviction of Ronald Joseph Beatty in the case at bar, filed the following per curiam opinion:

The petition for a writ of certiorari is granted and the judgment is reversed. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed. 2d 246.

Mr. Justice Harlan and Mr. Justice White noted their dissent, without filing any opinion or comment.

After the Supreme Court's reversal of the Fifth Circuit in the latter's Beatty case, this Court held a hearing in the instant case and determined that the facts and issues of this case are controlled by the Supreme Court's action in the Fifth Circuit Beatty case, and therefore granted Campbell's motion for a new trial. The question now before the Court is whether Ronald Joseph Beatty should be granted a new trial because of the admission of testimony of the post-indictment conversations between Groves and Campbell, or for any other reason.

Beatty⁵ was arraigned in this case on February 10, 1967. At that arraignment he was represented by his privately retained counsel, pleaded not guilty, requested a jury trial, and was given thirty days to file motions. The case was called for trial on September 19, 1967, at 10:00 a. m. During a conference in the Court's chambers, which took place within a short time before 10:00 a. m., and which was attended by counsel for the Government, for Campbell and for Beatty, voir dire questions and similar matters were discussed. No request was made at that time for a severance, nor had any motion to sever been filed at any time prior thereto by either Beatty or Campbell. After the jury array had been assembled in the courtroom and the proceedings were ready to commence, counsel for Beatty, at his client's specific direction, orally presented a motion for a severance. After a hearing out of the presence of the jury, this motion was denied because the Court, while noting the lateness of the motion, held on the merits that prejudice and unfairness to Beatty did not appear to exist. See Rule 14 of the Federal Rules of Criminal Procedure.

Within seven days after the verdict, Beatty's counsel filed motions for new trial and mistrial. A hearing was held and these motions were denied. At a later date, after Government counsel called this Court's attention to the Supreme Court's opinion reversing the Fifth Circuit in Beatty v. United States, supra, this Court, on its own initiative, suggested to counsel for Campbell and Beatty that the Court would entertain motions for new trial on behalf of either or both defendants. Following a hearing, this Court granted a new trial to Nelson Campbell. For reasons which will now be set forth, this Court hereby denies Beatty's motion for a new trial.

Beatty's motion is based on a number of alternate grounds, in which there are embodied three principal contentions:

1. Campbell testified at the trial, on his own behalf. Beatty exercised his privilege not to take the stand as a witness. During Campbell's cross-examination by Mr. Kramer, the Assistant United States Attorney representing the Government, the following occurred:

BY MR. KRAMER:

Q Did you know Mr. Beatty between September of '66 and the present time?

A Did I know him?

Q Yes; did you know you

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