USA. v. Hayes

• Decision Date: 08 September 1999
• Docket Number: No. 98-50609,98-50609
• Citation: 2000 WL 1672631,231 F.3d 663
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARNELL HAYES, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 663

231 F.3d 663 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARNELL HAYES, Defendant-Appellant.

No. 98-50609

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 13, 1999

Opinion Filed September 8, 1999

Order Granting Rehearing En Banc and Opinion Vacated February 1, 2000

Argued and Submitted En Banc June 22, 2000

Filed November 8, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Michael L. Crowley, San Diego, California, for the defendant appellant.

Yesmin E. Saide, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court or the Southern District of California Rudi M. Brewster, District Judge, Presiding. D.C. No. CR-97-01214-RMB

Before: Procter Hug, Jr., Chief Judge, and Mary M. Schroeder, Stephen Reinhardt, Ferdinand F. Fernandez, Pamela Ann Rymer, Thomas G. Nelson, Andrew J. Kleinfeld, Susan P. Graber, William A. Fletcher, Raymond C. Fisher, and Ronald M. Gould, Circuit Judges.Opinion by Judge Rymer;

OPINION by Judge RYMER; Dissent by Judge Reinhardt

RYMER, Circuit Judge:

Darnell Hayes was one of several targets of an investigation into a complicated, multi-party scheme to sell grades for classes that foreign students did not attend, perform course work for, or take exams in. The government asked for (and got) court approval to take material witness depositions of several of the foreign students so that they could go home. Hayes was notified and was represented by counsel. Meanwhile, the government wired a co-conspirator who agreed to cooperate and to allow the government to tape a conversation with Hayes. Hayes was indicted nearly a year later, and sought to exclude the tape on Massiah grounds. See Massiah v. United States, 377 U.S. 201 (1964). The district court found no Massiah violation because the depositions and the noncustodial taped conversation occurred before formal criminal proceedings were initiated against Hayes. The panel majority agreed; Judge Silverman dissented. United States v. Hayes, 190 F.3d 939 (9th Cir. 1999), rehearing en banc granted, opinion vacated, 201 F.3d 1255 (9th Cir. 2000).

Having reheard the matter en banc, we recognize that we are not writing on a clean slate. In Kirby v. Illinois, 406 U.S. 682 (1972), United States v. Gouveia, 467 U.S. 180 (1984), and on numerous other occasions, the Supreme Court has clearly articulated the rule: "[T]he Sixth Amendment right to counsel does not attach until after the initiation of formal charges." Moran v. Burbine, 475 U.S. 412, 431 (1986). Because no formal charges were pending against Hayes at the time of the surreptitious taping, it follows that the district court correctly determined that Massiah was not implicated and Hayes's Sixth Amendment rights were not violated.

As the remaining issues raised on appeal do not require reversal, we affirm.¹

I

Beginning in 1989, Sam Koutchesfahani solicited and accepted money from Middle Eastern foreign students to gain their admission to San Diego City College (SDCC) even though they did not meet SDCC's admissions criteria. He gave counterfeit documents to Richard Maldonado, an admissions officer, and paid him to issue fraudulent INS Form I-20s that falsely certified that the foreign students had met SDCC's admissions requirements. Then Koutchesfahani paid instructors at SDCC, Mesa College, and Palomar College to give passing grades to students who never attended classes or took any exams.

One of these instructors was Hayes, an adjunct professor at Mesa who taught classes in marketing and business. He was also approved by Ohio University, the University of Oklahoma, and Eastern Kentucky University to administer correspondence courses. Beginning in 1992, Hayes sold approximately sixty-five passing grades in his Mesa classes to approximately thirty-one foreign students who never attended class or completed class work and examinations. Although he never dealt with the students himself, Hayes was paid $150 per grade by Koutchesfahani for the Mesa classes, and $50 per course for thirty-four foreign students in eighty-seven correspondence courses for which he fraudulently certified the examinations as properly administered. For his part, Koutchesfahani received $109,000 from these students. As a result of Hayes's participation in the conspiracy, these foreign students were able to maintain their non-immigrant F-1 student status and to obtain college credits and degrees.

Hayes received between $11,513 and $14,150 in bribes from Koutchesfahani, but failed to report any of this income to the IRS or to State Unemployment officials. He also claimed "head of household" status with two exemptions at a time when he knew he qualified only for "single " status with one exemption, and failed to file any tax return at all for 1992.

At some point a criminal investigation was begun into the grade selling scheme, which stopped when Koutchesfahani and the foreign students found out about the investigation in the fall of 1994. However, Hayes and Koutchesfahani continued to talk. On November 30, 1995, Hayes received a target letter and consented to an interview by federal agents at his home, but told them a number of things that were untrue (for example, that Middle-Eastern students attended class and he did not give passing grades to students who did not go to class; that no Middle-Eastern students were enrolled in Mesa classes in 1994; that money he received from Koutchesfahani was for marketing work on "pharmaceuticals" for Koutchesfahani's company; and that he personally supervised the students' correspondence exams at Mesa).

Later, when Hayes learned in March 1996 that Koutchesfahani was thinking about cooperating with the government, Hayes asked him not to cooperate against him. Nevertheless, Koutchesfahani did enter into a cooperation agreement and on May 5, 1996, allowed agents to monitor and record a conversation he had with Hayes at a coffee house. During the conversation, Hayes said that he planned to lie at trial.

Meanwhile, on November 15, 1995, material witness complaints were filed under seal charging Abdulla K. AlRumaithi, Khallfan J. Al-Romaithi, Khalfan S. Al-Romaithi and Ghanem J. Al-Romaithi as material witnesses under 18 U.S.C. S 3144, which allows for the arrest and detention of material witnesses but also provides that they may not be detained if their testimony can be secured by deposition.² Rule 15 of the Federal Rules of Criminal Procedure allows depositions to be taken "[w]henever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial . . ." and provides that if a witness is detained pursuant to S 3144 and his deposition is ordered, the witness may be discharged by the court. The witnesses were arraigned November 16 and the conditions of release that were imposed included appearing to testify if subpoenaed and not leaving the United States without permission of the United States Attorney or the court. They were scheduled to graduate during the middle of May 1996 and to return to the United Arab Emirates. On April 19, 1996, the government filed a motion to take pre-indictment videotaped depositions of these four student witnesses, and to modify the conditions of release to allow them to return to their country after the depositions had been taken. In its motion, the government named Hayes and five other targets. Each target was given notice. Hayes's retained counsel neither objected to the motion nor attended the hearing. A magistrate judge granted the motion, "good cause appearing." The court's order directed "[a]ll parties" to attend each deposition, indicating that "[f]or purposes of this Order, the term`parties' includes the United States Attorney, the material witnesses, and the following targets of the investigation: [five individuals and] . . . Darnell Hayes." The order prescribed a number of conditions for videotaping depositions consistent with Fed. R. Civ. P. 28(a), 29, 30 and 32(c), and 18 U.S.C. S 3144. A few days before May 6, 1996, when the depositions were to begin, Hayes's privately-retained counsel substituted out and counsel was appointed for him. The depositions took place thereafter.³

On April 17, 1997, a federal grand jury indicted Hayes for conspiracy to defraud the United States in violation of 18 U.S.C. S 371, and to commit mail fraud in violation of 18 U.S.C. SS 1341, 1346 (Count 1); aiding and abetting mail fraud -i.e., fraudulent mailings of grade reports, transcripts, and correspondence examination certifications -in violation of 18 U.S.C. SS 2, 1341, 1346 (Counts 2-54); filing false tax returns in violation of 26 U.S.C. S 7206(1) (Counts 55-56); and failing to file a tax return in violation of 26 U.S.C. S 7203 (Count 57). Hayes moved to suppress the tape of his conversation with Koutchesfahni, but his motion was denied. His statements were admitted at trial, over Hayes's objections. After a jury trial, Hayes was convicted on all counts.

II

Hayes argues that the tape recording of his conversation with Koutchesfahani was obtained in violation of Massiah because he had been served with a target letter on November 30, 1995, the government knew at least as of February 7, 1996 (when he was subpoenaed to appear before the grand jury) that Hayes was represented by counsel, and in May 1996 the government conducted depositions of material witnesses based on a court order. He submits that the government's invoking Rule 15 of the Federal Rules of Criminal procedure was the functional equivalent of an indictment, and that the trial process effectively began when the government sought to take the depositions. Thus, as he puts it, the government chose to create a "trial type situation," which, in his view, Massiah forbade it from doing.

The government counters that, although Hayes was a target, he...