United States v. Thomas
| Decision Date | 16 February 1973 |
| Docket Number | No. 72-1524.,72-1524. |
| Citation | 474 F.2d 110 |
| Parties | UNITED STATES of America, Appellee, v. Billy Gene THOMAS, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert L. Christensen, Albuquerque, N. M., for appellant.
Richard J. Smith, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., on the brief), for appellee.
Before HILL and SETH, Circuit Judges, and CHRISTENSEN, District Judge.
Certiorari Denied June 4, 1973. See 93 S.Ct. 2758.
Defendant-appellant, Billy Gene Thomas, was found guilty by a jury on six counts charging the possession with intent to distribute, distribution of heroin and amphetamines, and conspiracy to so distribute in violation of several sections of 21 U.S.C. § 801 et seq., commonly called the Comprehensive Drug Abuse Prevention and Control Act of 1970.
Counsel was appointed for appellant by the court on September 22, 1971, following the filing of a criminal complaint against appellant on September 21, 1971. On September 28, 1971, appellant and his appointed counsel appeared at a preliminary hearing. The Government was present, represented by counsel. On September 29, 1971, the court denied a motion for reduction of the $10,000.00 bond it had previously set. Thereafter, on October 18, 1971, Special Agent in Charge of the Albuquerque Division of the Bureau of Narcotics and Dangerous Drugs, David Canaday, went to the New Mexico State Prison and obtained a written statement from appellant in the absence of and without the knowledge of plaintiff's attorney.
While appellant argues that he gave agent Canaday this statement only because he was promised that if he cooperated with the agents, he would be released from prison on his own recognizance and would be placed on probation, it is not disputed that the interview was requested by appellant and that appellant read and signed a Miranda type waiver of rights form.
On October 19, 1971, the indictment charging appellant was handed down. The next day, after agent Canaday admittedly conferred with the prosecuting attorney, appellant was released from prison on his own recognizance by the United States Magistrate on motion of the Government.
At appellant's trial, the statement was offered in evidence by the prosecution and was admitted over the objection of defense counsel. The circumstances surrounding the statement were developed. It was used by the Government in its cross-examination of appellant after appellant had voluntarily taken the stand to testify in his own behalf.
Appellant contends that by allowing the prosecuting attorney to use appellant's statement, which was obtained without informing his attorney of the impending interview and thus giving the attorney a reasonable opportunity to be present at the interview, is to condone conduct by the prosecution which can be considered to be unethical. The canons of ethics governing the actions of attorneys in all United States Courts in this circuit prohibit an attorney from communicating about the controversy with a party on the other side of the case who is represented by an attorney. This canon of ethics has been held to mean that it is improper to so communicate even if the party agrees to be interviewed without his attorney being present. The canon is applicable to criminal as well as civil cases. See 42 Neb.L.Rev. 483.
Other courts have expressed concern over the violation of this canon. See, for example, United States v. Four Star, 428 F.2d 1406 (9th Cir.). The majority in Coughlan v. United States, 391 F.2d 371 (9th Cir.), stated at page 372:
The Fifth Circuit, in Wilson v. United States, 398 F.2d 331 (5th Cir.), when dealing with this problem said at page 333:
"However, this Court agrees with the dissenting opinion in Coughlan, supra as to the impropriety of Government interrogation of a person in custody pending trial,...
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