US v. Burns

• Decision Date: 11 January 1993
• Docket Number: No. 90-CR-198.,90-CR-198.
• Citation: 811 F. Supp. 408
• Parties: UNITED STATES of America, Plaintiff, v. Deborah BURNS, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

811 F. Supp. 408

UNITED STATES of America, Plaintiff, v. Deborah BURNS, Defendant.

No. 90-CR-198.

United States District Court, E.D. Wisconsin.

January 11, 1993.

Steven M. Biskupic, Asst. U.S. Atty., Milwaukee, WI, for plaintiff.

David Saggio, Milwaukee, WI, for defendant.

DECISION AND ORDER

WARREN, Senior District Judge.

Before the Court are the Government's motions: of November 17, 1992, (1) to adopt the Government's legal analysis for the Court's prior decision to deny defendant Deborah Burns' motion to suppress; and (2) to require defense counsel to present any claims that defendant is not competent to proceed.

Also before the Court are defendant's motions: of November 20, 1992 (1) to suppress statements she made to drug enforcement agents upon her underlying arrest; (2) to dismiss the Superseding Indictment against her; and of November 30, 1992; (3) to consider whether defendant is competent to stand trial.

I. PROCEDURAL BACKGROUND

On November 14, 1990, a grand jury delivered a two-count Indictment charging defendant with possessing cocaine and traveling interstate in furtherance of unlawful drug distribution. On February 19, 1991, the grand jury delivered a three-count Superseding Indictment charging defendant with conspiring to possess and distribute cocaine, possession of cocaine, and traveling interstate in furtherance of unlawful drug distribution in violation of Titles 18 and 21 of the United States Code. Three co-defendants were named in the Count One, and one co-defendant was named in Count Two.

At her arraignment for the Superseding Indictment on March 22, 1991, defendant pled not guilty. A two-day jury trial commenced on September 9, 1991, and defendant was found guilty on all counts charged in the Superseding Indictment. On November 6, 1991, defendant was sentenced to 121 months incarceration as to Count One, 121 months incarceration as to Count Two, and sixty months as to Count Three, all to run concurrently, with five years of supervised release thereafter. Defendant filed notice of appeal on November 18, 1991.

On January 7, 1992, defendant brought a motion before this Court seeking a new trial based upon newly discovered evidence. On June 25, 1992, the Court granted defendant's motion. Thus, defendant's case is again before this Court in a pretrial posture.

II. DEFENDANT'S MOTION TO DISMISS SUPERSEDING INDICTMENT

Defendant asserts that someone eavesdropped on confidential communications made to her attorney, David R. Saggio, during a conference at the Ozaukee County Jail on November 3, 1992. (Def. Aff. at 2.) As such, defendant argues, she has suffered an infringement of her Sixth Amendment right to counsel under United States v. Melvin, 650 F.2d 641, 645 (5th Cir. Unit B 1981), which infringement demonstrably prejudiced her defense under United States v. Morrison, 449 U.S. 361, 365, 101 S.Ct. 665, 668, 66 L.Ed.2d 564 (1981), United States v. Thompson, 944 F.2d 1331 (7th Cir.1991), and Tucker v. Randall, 948 F.2d 388 (7th Cir.1991). (Def. Motion at 2-3.)

The Government argues that defendant's statements constitute mere speculation, not evidence, that confidential communications shared with her attorney were improperly overheard. (Government's Response at 2.) The Government further argues that even assuming the infringement occurred, no information material to defendant's trial was disclosed, nor does defendant so allege. As such, says the Government, defendant suffered no demonstrable prejudice, or substantial threat thereof, prerequisite to relief under Morrison, 449 U.S. at 365, 101 S.Ct. at 668. (Government's Response at 2.)

The Court agrees with the Government. In Morrison, 449 U.S. at 364, 101 S.Ct. at 667, the Supreme Court narrowly circumscribed the relief available in Sixth Amendment cases: "we have implicitly recognized the necessity for preserving society's interest in the administration of criminal justice. Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." Id. at 364, 101 S.Ct. at 668. The Supreme Court, it appears, considers dismissal of the indictment a particularly apocalyptic option. Even where, for instance, the defendant was totally denied assistance of counsel at his criminal trial, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), judicial action prevented counsel from being fully effective, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and law enforcement officers improperly overheard pretrial conversations between a defendant and his lawyer, O'Brien v. U.S., 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967), "none of the consequent Sixth Amendment deprivations ... resulted in the dismissal of the indictment." Morrison, 449 U.S. at 364-65, 101 S.Ct. at 668. In fact, noted the Supreme Court, "certain violations of the right to counsel may be disregarded as harmless error." Id. at 365, 101 S.Ct. at 668 (comparing Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 466, 54 L.Ed.2d 424 (1977) with Chapman v. California, 386 U.S. 18, 23 & n. 8, 87 S.Ct. 824, 828 n. 8, 17 L.Ed.2d 705 (1967)). Thus, our approach must be to neutralize any taint, if at all, by narrowly tailored relief.

The premise ... is that the constitutional infringement identified has had or threatens some adverse effect upon the effectiveness of counsel's representation or has produced some other prejudice to the defense. Absent such impact on the criminal proceeding, however, there is no basis for imposing a remedy in that proceeding ... More particularly, absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.... The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.

Morrison, 449 U.S. at 365-66, 101 S.Ct. at 668-69.

The Court now finds that defendant has not shown demonstrable prejudice or a substantial threat thereof resulting from the alleged breach of confidence. Even assuming, arguendo, defendant's allegations in toto,¹ (see generally Def.Aff.), the only information improperly disclosed was, on its face, personal and unrelated to defendant's trial: "That during said conference, I spoke to my attorney about a friend who had died of AIDS during the early 1980's ... I told my attorney my dead friend's full name." (Def.Aff. at 2, ¶ 5.) The information allegedly disclosed, therefore, was not demonstrably prejudicial. Moreover, the alleged effect of said disclosure — defendant's fear of communicating with counsel — though gravely considered by the Court to whatever extent reasonable, here falls well outside the narrow proscription of Morrison, 449 U.S. at 365, 101 S.Ct. at 668. Demonstrable prejudice is, quite necessarily, an objective standard unreachable by defendant's subjective characterization of her Sixth Amendment circumstances. See Id. at 365, 101 S.Ct. at 668. Defendant's allegations are equally unsuited for lesser remedies, given that defendant does not allege improper fruits were garnered by the prosecution, and the Court, analyzing the record sua sponte, finds none.

Defendant's motion to dismiss the superseding Indictment, therefore, will be denied. Whether or not there actually was a breach of confidence, the Court finds no resulting demonstrable prejudice or substantial threat thereof.

III. DEFENDANT'S MOTION TO SUPPRESS STATEMENTS; GOVERNMENT'S MOTION TO ADOPT LEGAL ANALYSIS FOR COURT'S DENIAL OF DEFENDANT'S EARLIER MOTION TO SUPPRESS²

A. FACTS ALLEGED

1. Defendant's version

Defendant asserts³ that on November 11, 1990, Federal Drug Enforcement Administration agents obtained a search warrant allowing them to search the hotel room in the name of Mary Jennings at a Holiday Inn in Milwaukee, Wisconsin. Upon entering the hotel room, Agent Snyder introduced himself to defendant and asked her name. (September 10, 1991 Tr. at 114.) Defendant stated her name was "Katherine" and in response to a further question said she did not know what her last name was. (Tr. at 114.) Snyder told defendant to sit on the bed while he proceeded to search the hotel room. (Tr. at 114.)

During the search, defendant asserts, Snyder asked defendant what she was doing in Milwaukee, to which she replied that she was visiting friends. (Tr. at 114.) Snyder then asked which friends, to which defendant replied that she did not have any friends in Milwaukee. (Tr. at 114.) Shortly thereafter, Snyder found approximately one kilogram of a substance that included cocaine in defendant's room.

Defendant further asserts that, during Snyder's testimony, Snyder indicated that he did not read, nor did he hear any other law enforcement official read, defendant her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before the cocaine was discovered. (Tr. at 118.) Snyder also testified that defendant wanted to leave when he entered her hotel room, (Tr. at 121-22), but he told her she had to remain on the bed and could not leave until he completed his search. (Tr. at 116-17.) Defendant was detained later that same day.

2. Government's version

The Government, incorporating its arguments of November 17, 1992,⁴ asserts⁵ that Agent Snyder was assisting the execution of a valid search warrant when he encountered defendant coming out of the search situs — defendant's hotel room. (Tr. at 114.) At that point, Snyder asked defendant her name. (Tr. at 114.) Defendant gave a false reply. (Tr. at 114.) Snyder told defendant to sit on the bed while the warrant was executed. (Tr. at 114.) Although defendant wanted to leave, Snyder detained her during the search because the primary investigative agent had not yet arrived. (Tr. at 114.) Defendant was held for no more than five minutes. (Tr. at 115, 117.)...