Billy Gale Henry v. United States

question with or Henry regarding the bank WINTER, Before BUTZNER and RUS- robbery. SELL, Judges. Circuit When the contacted again Nichols WINTER, Judge: Circuit a later, few weeks reported Henry had engaged conversation, him in After an appeal unsuccessful of his con- Henry had talked about the bank rob- viction for robbery armed bank in violation bery charges, and that he had described 2113(a) of 18 (d), U.S.C. and §§ how the bank robbery had occurred. Nich- Henry, (4 Cir., Sept. No. 73-1413 ols was by the FBI furnishing for 14, 1973) (unpublished), Billy Henry Gale information. moved to vacate twenty-five year his sen- pursuant tence Among trial, to 28 Henry’s U.S.C. At § Nichols testified that relief, grounds that, other Henry claimed going admitted prior the bank during his confinement after indictment robbery opened see who the vault counsel, incriminating and in the absence of and he further renting admitted the house obtained from him indicated on the receipt rental found in the acting agent.1 getaway cellmate Nichols, car. According to Henry motion, The district court denied the and on had also described the actual robbery to appeal case was remanded for an evi- him. Aside from Nichols’ testimony, the dentiary inquiry. Henry v. case Henry consisted of: the testi- 1977), (4 551 F.2d 306. Affidavits sub- mony cellmate, of another Joseph Sadler, as agents charge mitted the FBI to conversations in Henry admitted robbery bank; verified that investigation robbing one of evidence that Henry, whether, certainty unimportant govern- 1. The record is not clear as to at the because the obtained, dispute Henry time the statements were counsel had ment does not had not appointed retained or or whether the mere waived his to counsel at the time right to attached. un- counsel had The factual conversations with his cellmate. name, by government agents statements obtained the house rented assumed under an robbers, money in the after indictment and absence the three two of where counsel, in- stolen, used those statements masks and clothes and the agents. duced such This refinement was shortly after robbery were found crime; rejected un- Henry, again summarily evidence that Ohio, per opinions, in two curiam name, crystal McLeod ordered der an assumed po- as one used frequency the same (1965), Beatty States, the where and v. 389 in house found United

lice radio scanner 45, 234, 19 L.Ed.2d 48 apprehended. U.S. 88 S.Ct. were the two robbers a holding McLeod reversed state court that II. applicable question- Massiah was not absent ing deception. Similarly, Beatty over- in case is presented The sole issue turned the Fifth Circuit’s determination moni government the undisclosed that information volunteered to an un- toring Henry’s after his of conversations government known informer was admissi- indictment, custody was in and had while he despite ble Massiah. The facts of this case counsel, to violated right waived his not Beatty except would be to those in identical Henry’s to under the sixth right counsel Beatty jail that was not in at time of the this issue The resolution of amendment. interception. the Because restrictive es the of the rule depends application on jailhouse setting, nature of the the instant 377 in Massiah tablished presents a far compelling case more situa- 1199, 12 246 84 L.Ed.2d S.Ct. . application tion for the the rule. of Massiah (1964) government The that Brewer v. Massiah, Mas- asserts a between In conversation bail, 51 siah, and had been released his who (1977), its 424 limited Massiah and government was recorded co-defendant progeny involving “interrogation.” to cases agents with the co-defendant’s consent. in- police the Massiah made a detective enticed the During conversation patient which later in- a former mental and criminating statements deeply religious person, to loca- Supreme at his trial. The Court reveal the troduced conviction, of holding body suggesting that Massi- tion his victim’s reversed his predicted when that a ah was denied the counsel defendant snowfall preclude would was admitted “which federal Christian burial of evidence victim. deliberately Equating elicited from him the “Christian burial agents had speech” “interrogation,” in the ab- with after he had been indicted and Court at declared “the clear rule of Mas- sence of counsel.” 377 U.S. is thought inconsequen- adversary proceedings siah that once at 1203. The Court individual, at have tial Massiah was not confined commenced “ time, legal representation a rule is when the ‘if such interrogates him.” government and sur- 430 at efficacy apply it must indirect noted, reptitious as well as those interrogations ” Id., moreover, is jailhouse.’ quoting conducted in the there no constitutional (2 Massiah, “interrogation” no 307 F.2d where takes United States J., dissenting). place. There was Id. at 1962) (Hays, finding co-defendant’s Notwithstanding the several references actions, mere presence, aside from his in the Brewer to “interrogation” opinion, remarks.2 damaging induced the Brewer limits Massiah we do not think held several courts government to cases in which the has di- Subsequently, to all rectly questioned par- apply Massiah did accused about (2 ed F.2d 66 Cir. Appeals, States v. how- the Court 1962). ever, had solic- indicated that the co-defendant pending case. Unit- ited information about place, reasons, first For these ticipation in crime. the judgment denying McLeod, supra, with Supreme Court cited the motion under reversed, § and U.S. at approval, the case is with remanded instructions that applied though Massiah even granted motion be and Henry released interrogated by was not McLeod offi- from charge against him unless the they and he knew that were officers. cers government try elects to him anew. term, is a Secondly, “interrogation” relative REVERSED AND REMANDED. agree Fifth we Circuit Anderson, BUTZNER, Judge, Circuit concurring: (1975), that it is not restricted to for- interrogation. oral An I undisclosed concur in Judge opinion. malized Winter’s I effectively “interro- write briefly, to amplify my rea- simply engaging gate” defendant sons for concluding that the judgment of general conversation and the district court must be reversed. guilt, response is a confession opinion, its the district court acknowl- agent need not make further more edged the defendant’s claim that California, inquiries. Miller v. 392 pointed government’s informant had questioned 20 88 L.Ed.2d 1332 U.S. S.Ct. jail him in about robbery. the bank Never- (dissent certiorari). (1968) from dismissal theless, the court denied an evidentiary case, even if we In the instant assume hearing Instead, on this issue. it wrote: obeyed Nichols instructions not to that his Here, accepts the Court the statements interrogate Henry robbery, about bank of the agents FBI they did not re- testify engaged he did con- quest Nichols' to question [the informant] Henry. If, by with his cellmate versation Henry engage him in [the defendant] association, conversation, by general conversation, only to listen both, Henry developed sufficient confidence might statements Henry make within Henry in Nichols that bared incrimina- their hearing report it to them. [sic] paid informer, ting secrets to an undisclosed Nichols confirms this. interrogation think that there was with- we The informant questioning denied the de- meaning We hold in the of Brewer. there- not, however, fendant. He did fully comply to counsel was Henry’s right vio- fore instructions he was not to government proved when the incrimi- lated “engage conversation, him in but only to to his nating statements made cellmate af- listen.” He admitted that he had “some in the his indictment and absence of ter defendant, conversations” with but he counsel.3 divulge did not he said what to the defend- ant. III. As Brewer v. 430 that, U.S. 97 The district even if court found (1977), S.Ct. 51 424 violated, demon

Henry’s right to counsel was ad- strates, the informant’s conclusory state mission was ment that he question did not other evidence the defend harmless error. While was ant is not determinative. The to the critical issue linking Henry robbery, introduced we whether, judicial after say beyond proceedings a reasonable doubt that cannot defendant, been initiated influence testimony Nichols’ did an Chapman California, acting an jury’s verdict. See informant — 18, 24, 17 386 U.S. L.Ed.2d 705 information from him —elicited (1967). absence of defense counsel. Proof of interception (1978), about 98 3. We 56 L.Ed.2d 90 in which prisoners’ non-govem interception conversations with the Ninth that such Circuit held agents through listening did not electronic de violate the sixth amendment under Hearst, Massiah. vices. See United States denied, (9 1977), cert. 435 U.S. der the Sixth Amendment. The unnecessary majority, to in- interrogation is formal relying authority, amend- on Massiah1 for of the sixth would protection voke is tantamount hold that it should be excluded. I disagree. ment. A conversation interrogation is sufficient. As I read it commands exclusion 397-401, challenged when is the prudent for the dis- have been It would “interrogation.” result of And this is indis evidentiary conducted trict court to have putably way Court in the ambiguity of the docu- hearing dispel case of Brewer v. recent Williams2 read evidence, especially since the mentary prevailing Massiah. The opinion of Justice not reveal the substance of government did Stewart Brewer declared “that once ad conversation. Never- its informant’s versary proceedings commenced theless, testimony by absent the informant individual, against an legal has a to the about what he said representation when the government inter ” must be reversed because of the judgment but, rogates applying him the rule to the admission he had con- informant’s facts in it added that “no such and because of with the defendant versed [of assertion that the conversa- the defendant’s would play have come into if there counsel] questioning. Massi- tion was a form See added) had been no interrogation.” (Italics ah Justice Powell in his concurring opin (1964); Brewer v. 12 L.Ed.2d Wil- (which ion necessary to the decision of liams, Court) was even clearer. He saw the L.Ed.2d 424 critical issue to be whether there had been fact; interrogation in alternatively ruled if there The district court were no in terrogation, there testimony admission of the informant’s would be no constitution error because the al violation ground was harmless and no for exclusion.4 clearly by eyewitnesses identified as The dissenting opinion “was agreed with the score, one of bank robbers.” On this of Justice Stewart that exclusion of judge’s of the evi- the district recollection the evidence turned on whether it was the was inaccurate. The defendant was dence result “interrogation.” of Actually, the dis any by not identified witness to the rob- pute opinions in the various in the case did Indeed, bery. government’s brief ac- not concern whether “interrogation” is a knowledges its case the de- prerequisite for exclusion solely on fendant was founded statements by statements a defendant for a violation of of informants and circumstantial evidence. the defendant’s rights: Sixth Amendment join Judge I therefore Winter’s conclu- dispute centered on whether there had sion that the error was not harmless. “interrogation.” “Interrogation” thus established Brewer as the key issue. RUSSELL, Judge, Circuit DONALD dis- paraphrase again To Justice opin Stewart’s senting: ion in that “if there been no [has] interrogation,” respectfully I dissent. counsel does “not come play” into or arise.

The issue in this case is whether Nichols, recounting the majority opinion incrim- appears here to rec- inating given information him the de- ognize Brewer has now established be- prison yond question fendant while the two were cell- the issue in this case mates, should have been excluded as viola- turns on whether the testimony in dispute tive defendant’s to counsel un- was the result of “interrogation.” It dis- 400-01, 1. 377 U.S. 12 L.Ed.2d 246 3. 430 U.S. at 97 S.Ct. at 1240. (1964). 1232; Note, 4. 430 U.S. at (1977). 2. 430 U.S. 51 L.Ed.2d 424 La.L.Rev. issue, however, November, 1972, misses the with the com- In late agent FBI visit- “ ‘interrogation’ is a relative jail ed Nichols at the where he impris- If, this, majority term.” means oned. Nichols told the agent there were a “interrogation” is not limited to direct ques- prisoners, number of federal including the tioning, agree. we would defendant, in his cell jail. block in the engage questioning officer did not in direct agent did not know that the defendant and Knowing, of the defendant. that Nichols were cellmates and he nothing questionable the defendant was of mental to do either with being in the same strong faith, capacity and of Christian jail with the defendant or- with the two very speech made a clever to the defendant being made cellmates. The agent told girl about the shame of the small slain left Nichols to be alert freezing out cold without a decent prisoners. federal He expressly instructed plain purpose “Christian burial” with the of Nichols not initiate conversation shaming revealing him into the where- prisoners, with the federal but, if they girl’s body. abouts of the slain That talked, pay close attention to what they found, speech, majority was “tanta- said. Nichols was merely to listen. In par- or, interrogation”5 mount as Justice ticular, Nichols was ques- directed “not to it, Powell characterized was “a skillful and tion regard to the bank [the defendant] interrogation.”6 effective But form robbery.” alone,7 enough is not presence, to constitute later, Some weeks after Nichols had com- interrogation. listening interroga- Nor is pleted his state sentence and had been re- “subjective tion. The mere desire to obtain . leased, Nichols, saw who told him suspect from a after arraign- information of the incriminating statements he heard ment,” unaccompanied by some affirma- the defendant make. There is no evidence action, subtle, tive either direct or reason- that Nichols had in any way violated the ably calculated to induce conversation rela- instructions him the agent. The crime, satisfy tive to the will not requi- record indicates that the defendant’s in- “interrogation.”8 site of The officer or in- criminating statements were voluntarily stimulate, however, former must subtly, and spontaneously given without any en- satisfy conversation to couragement from Nichols. And the Dis- “interrogation.” test of Judge trict so found. Under finding, majority opinion The makes little effort by which we are bound since it cannot be qualify .to action the the of informer in this erroneous, said to be clearly there was no “interrogation” case as unless simply the “interrogation” of the defendant by Nich- paid of a “presence” informer is sufficient.9 ols, however broadly that term be event, the conduct of the informer in defined. not so The qualify. this case would inform- majority The repeat prisoner, serving nothing Nichols was a state er —I —offers suggest that formerly state sentence. He had been a the statement of the de- fendant, government Nichols, paid informer for the federal testified to was secured had fallen afoul the state as forgery “interrogation” a result of beyond the at the time a prisoner. ambiguous laws and was state indicating pres- that 400, pending Actually, 5. 430 U.S. at 97 S.Ct.-1232. case.” the informer in Mas- deliberately engaged siah Massiah in conversa- 412, 6. 430 U.S. 97 S.Ct. at 1246. purpose eliciting tion for the sole of incrimina- ting police might in order that the suggestion 7. The that Massiah in the ac- monitor them on a hidden radio. 377 U.S. at informer, inducing tion of the the confession 202-203, 84 S.Ct. 1199. simply present was that he was is rebutted the citation in note 2 of the 440, (Blackmun, 8. 430 U.S. at 97 S.Ct. at 1200 majority opinion, quotes language which of J., dissenting). Appeals the Court of (2nd 1962) indicating Cir. “that the co-de- 7, supra. 9. See note fendant had solicited information about If, hand, language on the other informer-listener of the undisclosed an ence of majority critical opinion satisfied “inter- its conclusion defendant the cell with condemnation, represents term general of that con- its definition rogation” under stitutional the use of grounds, This conclusion fol- of “undis- “relative.” merely way agents informers, closed” undercover and unique in which from lows paid unpaid, the infiltration of “that and such proceeds find majority meaning agents, within the their “undisclosed” interrogation character is there was —if majority its con- critical point opinion’s crucial in the predicated It of Brewer.” interrogation holding of invalidity there was constitutional flies clusion —it association, by general con- “by straight repeated into the teeth of decisions finding suffi- both, Henry developed versation, finding of the Court the use Henry in Nichols such agents cient confidence undercover informers secrets to an undis- presents violation. bared his no constitutional added) (Italics informer.” paid informers, closed use whether voluntary or that a majority saying is is effect, what the paid, reprehensi- has never found to be been voluntary incriminating admis- ble, or, defendant’s to quote leading “as a depri- interroga- product sions become vation of process due of law based on the tion, term is defined in as that notion that is ‘unfair’ practice such or ‘of- person who hears merely because decency those canons of and fairness fend[s] * * * is an “undisclosed voluntary admission which notions of [our] “by asso- in whom informer” Indeed, justice.’”13 in a case last year developed a “confidence” that has ciation” Circuit, originated in this keep his secret. will person spoke approvingly of “the value it [under- policework] cover often is effective law element of primary this-definition enforcement.” Weatherford v. Bursey apparently the “undis “interrogation” (1977) 545, 557, “surreptitious” character closed” or For other recent cases finding But informer.10 Brewer made attaching taint under- the whether the confes quite plain it cover police, activities see United damaging admission been “elic sion or (1973) States Russell 411 U.S. “constitutionally surreptitiously” ited 36 L.Ed.2d 366 and way And this is Brewer irrelevant.”11 (1971) States White all interpreted by the commentat Moreover, 28 L.Ed.2d 453. These was so authori- applied ors.12 simply ties the conclusion (9th confirm case of United States v. Hearst recent 1331, 1348, agents, use of undercover or “secret F.2d cert. denied inform- ers,” does 56 L.Ed.2d “not violate [the defendant’s] majority by stating from state- resolved the difficulties to follow the earlier This seems majority opinion, opin- based on an disclosures ment in the made dissenting openly from denial of certiorari in Miller ion in the absence of counsel were elicited 616, 2258, (1968) constitutionally U.S. surreptitiously 392 88 S.Ct. California or is irrele- 1332, govern- undisclosed determining “[a]n 20 L.Ed.2d vant in the to effectively may ‘interrogate’ agent a de- abridged.” counsel had been engaging by simply the in a defendant fendant support point And in of this was ** general *(Emphasis conversation Ohio, plurality opinion McLeod v. .cited 381 added) 356, 1556, 682, U.S. 14 L.Ed.2d 85 S.Ct. 400, point. to this 430 U.S. at 97 S.Ct. 400, 11. 97 S.Ct. 1232. 430 U.S. 1232. Note, See, Right to The Counsel: An Alter- (3d United Cir. States v. Fioravanti Miranda, 239, 244 38 La.L.Rev. native to 407, 414, n.15, F.2d 412 cert. denied sub nom. Note, Right (1977); Counsel and the States, 837, Panaccione v. United 396 U.S. 90 543, Standard, 57 Neb. L.Rev. Waiver Strict 88, relying 24 L.Ed.2d on Hoffa v. 550 310-311, 293 at U.S. 87 S.Ct. quote in the La.L.Rev. is as follows: The full 408, 17 L.Ed.2d 374. slight exist be- factual differences “While cases, and Brewer] tween the [Massiah tion. We found no constitutional bar Fourth, or Amendment to the Fifth Sixth rights.”14 incriminating admission of the statements In United States v. of the defendant. promul rule the heart of the crucial If White (1971) 745, 751, majority, is gated by the 1122, 1125, L.Ed.2d incrimina- a a cellmate creates such as association ting police agent statement was made to “a as feeling “confidence defendant]” [in connections,” incriminating who his police to “bare his him to induce concealed] informer- to the undisclosed invalidity secrets” no was found in the admission of vio to make it a constitutional cellmate agent’s” “police the undisclosed statement. other admit into evidence “incrimi lation to short, case, there is no so far as I can secrets,” nating effectively it is refuted find, which makes distinction Hoffa v. United court ruling in grounds admissibility of constitutional be- (1966) 385 U.S. incriminating tween statements testified to Constitution L.Ed.2d by private secret informers and individu- wrongdoer’s “a affords dissenting opinion als. even the Not in person that a whom he belief misplaced California, Miller v. incidentally which is wrongdoing voluntarily confides his will only authority cited the majority it,” person is an even when that reveal support ruling, in of its makes such informer.” “undisclosed a distinction. There is no reason assume himself into the had insinuated informer incriminating that an is less representing confidence defendant’s trustworthy, reliable or if made an undis- long-time friend and associate as a himself agent closed informer undercover than if defense. to aid in the defendant’s anxious made tó individual and there is no principle in Hoffa was followed in This private Fioravanti, agent treating an undercover basis for two situations in which differ- group, was arrested the criminal ently purposes admissibility. infiltrated group, and while both defend with the I that for submit the reasons agent “con undercover ant and the upon majority opinion basis rests [together] pen,” in the bull the de fined untenable, its conclusion is however it fendant, “thought who that he was convers viewed, contrary be and is to authority. As crime, not a ing partner a fellow in with fact, a matter of there are two recent deci statem policeman,” made clearly sions which cannot be reconciled hesitancy had no ents.15 The court major with either the reasoning behind the of the undercover finding ity opinion or the result reached in it. about Hearst, United States first of these ruling in that case. And the admissible supra, Hearst, 563 F.2d 1331. In the con many respects case is similar in to our versation with a prison Dowdy (4th own case of visitor, her, unknown to was monitored and 213, 229-230, cert. de 1973) 479 F.2d “surreptitiously” by prison recorded au 823, 866, nied thorities. This was done because of the denied reh. jail’s policy monitoring conversations in person 38 L.Ed.2d There “very publicized high security prob cases engaged bribery in a scheme with the de 16 The emphasized lems.” that there into an FBI informer. As a fendant turned “engaged no evidence the visitor had result of his association crime in the conversation later defendant, relationship [the defendant] he had established used her.” The how the defendant felt he could under which ever, “deliberate, repeti- argued without fear of secret freely talk with him Fioravanti, pp. supra, 15. 412 States v. at F.2d at 409 and 413. 14. United n.15, 412 F.2d.

16. 563 F.2d at 1344. is, “surreptitiously between a listening”17 reporting informer a face- —that obtaining” presence of coun- to-face admission and from a —without Amend- sel violated the defendant’s Sixth paid government employee surrepti- who by Massiah. In rights ment as established tiously, through the use of electronic sur- effect, analogous the situation was factual- veillance, incriminating secures the infor- position and the taken ly to this case mation and that such difference distin- was similar to that defendant in case guishes this case from Hearst. Wilson v. Court, taken the defendant here. The (2d Henderson claim, stating p. dismissed the 1191,however, gave appears what to me to 1348: be the conclusive answer to this suggestion: Brewer v. Wil- “The Court in “Furthermore, the admission of an in-cus- * * * liams, recently interpreted tody voluntarily made to an directly opposed Massiah in a manner informant egregious seems less than the Brewer, contention. appellant’s use of a statement intercepted by an elec- unambiguous Court stated in terms that tronic eavesdropping device as up- ‘no such constitutional [of * Hearst, held in United *. right to assistance of counsel at the time When a defendant makes a completely the defendant made the incriminatory unsolicited, incriminating remark in a play would have come into statements] * * informant, face-to-face encounter with an interrogation.’ there had been no knowingly assumes the risk that his appellant’s argument Relevant to that by confidant may ultimately prove to be un- secretly listening state- trustworthy. illegal In an search and rights ments the violated the seizure case the Supreme Court stated: Massiah, defined in the Court stated: “ ‘That the statements were Court nor member ‘[n]either surreptitiously

elicited in the Massiah of it has ever expressed the view that here, and otherwise is constitution- the Fourth Amendment protects a ally Rather, . irrelevant . . wrongdoer’s misplaced belief that a clear rule of Massiah is that once adver- person to whom he voluntarily confides sary proceedings commenced his wrongdoing will not reveal it. individual, an he has a Hoffa v. legal representation govern- when the L.Ed.2d 374 * * * (em- interrogates him.’ ” (1966).’ added; omitted). Thus, phasis citations Wilson v. Henderson is even more direct- interpreted by under as ly point. In that case the defendant’s appellant’s there was no violation of cellmate agreed “to act informant.” Sixth Amendment to the assistance He was inquire “instructed not to ques- of counsel because there was no interro- tion, but keep open his ears for informa- gation formally of her—either surrep- * * tion *. The circumstances under (citations titiously by government.” the— which the incriminating omitted) statement of the defendant was made are thus described in There no way distinguish Hearst opinion: challenged from this case. The “Initially, (the defendant) Wilson re- procured secretly surreptitiously peated (the to Lee cellmate-informer) in both cases. In neither case had there same version of the facts that he had “interrogation,” as that term was used (the related to Cullen investigatory in Brewer and Massiah. Neither Nichols in offi- cer). engaged this case nor Tobin in Hearst Lee’s comment was story It good. conversation. has been did not sound too By the end suggested that there day, be difference of the third Wilson made an auricu-

17. 563 F.2d at 1347. robbery government agent knew complicity lar confession prison and murder.” was in the same unit as the defend- but, Wilson, ant unlike the officer in he did claimed that this incrimina- The defendant not know that the defendant and Nichols improperly “was admitted ting statement were cellmates. In Wilson it seems the Amendment at trial in violation of Sixth actually informer was placed in the cell under Massiah v. United to counsel * * * .”19 It is evident that fac- defendant with the knowledge, if instance, is on all-fours with our case tually this case not at of the investigating precisely legal and that issue officer. That is not true in this case. held, case, con- In that the Court same. The Court in Wilson declared that opinion in this trary majority to the government conduct in that case was Wilson, interrogate that “where Lee did not type reprehensible not “the police behav- deliberately elic- way attempt to nor in ior which the courts feel compelled to dis- remarks, Massi- the rule of it courage. The suggest instructions to Lee transgressed.”20 With ah not been [had] conscious effort on part guard Cullen’s pres- to the informer’s reference particular Wilson’s rights pursu- while 1191): cellmate, (p. said the Court ence as ing a crucial homicide investigation. His is the fact that informant “Nor directions, questions; just ‘Don’t ask keep surreptitious cell under placed in Wilson’s your ears open,’ suggest familiarity and at- distinguishing point circumstances a tempted compliance with, not circumven- repeatedly held this case. This court of, tion the principle of Massiah. Under voluntary, incrimina that a defendant’s circumstances, these exclusion of Wilson’s person to a known ting statements made confession to Lee serve would no useful the defendant to be purpose. Accordingly, we are of the opin- admissible under properly are officer ion that infringement there was no of Wil- Garcia, v. Massiah. United States [377 son’s Amendment Sixth to the assist- (2nd Cir.)]; United v. F.2d 321 States ance precisely of counsel.”21 That is (2nd 1973); Gaynor, 472 F.2d 899 Cir. I suggest case and we should Barone, United States same view here as did the Court Wilson. (2nd 1972); v. Max Cir. well, (2nd 1972) cert. sum, 383 F.2d 437 Cir. I think plainly Brewer declares 786, 19 denied 389 U.S. interrogation that without there is no viola- Ac (1968); United L.Ed.2d 835 tion of Massiah. This is the construction cardi, (2nd cert. 342 F.2d 697 given Brewer in all the comments on that denied 382 U.S. case; it is the construction two (1965). Ostensibly, compara Appeals. Circuit Courts of The only au- to undercover ble statements made thority cited the majority opinion in receive similar treatment agents should dissenting opinion contradiction is a filed the fact that an because years before written one of the surreptitiously is received dissenters in Brewer. Without the slightest constitutionally irrelevant. otherwise is any interrogation evidence of of the defend- Brewer ant Nichols in connection with this S.Ct. 1232.” crime, majority interrogation finds merely by presence of the informer in Certainly, there can be distinction Presence, the cell with the defendant. between this case and Wilson. drawn not, surreptitious does not con- fact, anything, the facts in that case were stitute within Brewer. interrogation claim I dis- more favorable to the defendant’s Here, ease. sent. than are the facts in this 20. P. 1191. P. 1187. 21. P. 1191.

19. P. 1189.

Case Details

Case Name: Billy Gale Henry v. United States

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 26, 1978

Citation: 590 F.2d 544

Docket Number: 77-2338

Court Abbreviation: 4th Cir.