Donald Croom Beatty, Jr. v. United States

Sirles, employed the Homewood Macey Taylor, Atty., Asst. U. S. R. Printing Co.,3 for had known Birmingham, Weaver, Ala., Macon L. U. purchased year had several over and Alabama, Henry Atty., N. D. C. S. op- guns appellant, who owned Stockell, Jr., Regional Counsel, of coun- Shop. tes- Gun Sirles erated the Modern Atty., Yorra, Arnold S. Internal sel. December, early part of tified that in the Ga., Service, Atlanta, on Revenue direction of the ATU he under brief, plaintiff-appellee. for negotiated pur- for with AINSWORTH, guns. Before GEWIN and two Beretta machine chase of Judges, HUNTER, reported negotiations to Circuit District these Sirles Judge. went McGinnis4 when Sirles Appellant Beatty employed on was indicted four had Sirles 1. 3. In fact However, upon government’s catalog print counts. his and Sirles one time to motion, gone ordered that count one on sev- court had into store catalog. jury up of the indictment be dismissed. The to make eral occasions guilty a verdict on count returned relationship Apparently with Sirles two. just begun. men- had ATU Sirles had prior plea 2. Sirles had a his conviction on a to a friend of tioned the Berettas years guilty, age, he ATU when who had ATU. informed transportation suggested interstate of a stolen vehi- turn contacted Sirles placed probation. negotiate about cle and was He with that he agreed fact, thereby placing guns. testified to this Sirles the machine jury. Appar- thereby information before the became an informer. he witnesses, appellant wiped complete all the trans- ernment store gun fingerprints 7, 1964, and stated he from the on December action finger- pinned his that he did not wish equipped radio shortwave immediately receiving prints appear on it. Sirles a small T-shirt gun Appellant ATU men. in- turned the over piece his shoulder. over sold the Beret- that he had formed Sirles shortly after also testified that Sirles Russian machine that he had a tas but indicted, appellant appellant had been gun he Sirles that would sell $65.00. requested telephoned to meet weapon two was not shown the him. likewise pripposed driving parts, rod buffer of its spring. meeting. place of the time and told inquiring then talked to McGinnis weapon purchase for a wanted to meeting, should attend the whether he going Miami who wanted truck driver to meeting was The and was told to do so. in said he would to sell it Cuba. Sirles February 18, 1965, au- in Sirles’ held on gun.5 the contact later about was secreted in tomobile and McGinnis entire trunk he the Agent the the where overheard as to also McGinnis testified forty-five min- lasted conversation which trans- had been above conversation which equipped himself had person utes. McGinnis equipment on mitted the Sirles tape-recording he with a device picked up radio re- and on McGinnis’ work, he heard the testified failed to but ceiver. At meet- conversation nevertheless. this witnesses testified that later that ing appellant inquired from as to Sirles arranged day, and same Sirles gun sold of the he had the whereabouts appellant’s store and Sirles to meet at illegal him told he had a lot of Sirles and, attached arrived with the same radio guns. Appellant that if also told Sirles They addition, money. left marked appeared if him or the Sirles to home the store went court, gun into machine came gun assembled the where Shorty Baptist the take care would have ap- operation. described its Thereafter of him.6 put parts pellant disassembled it and the bags gave plastic denied sale him At the trial the in two and Sirles although gun Sirles, money. to Their con- of the submachine of the marked $65.00 selling parts again appellant admitted various versations overheard gun. entrap- agent gov- pled According of the also to the McGinnis. paid purchased ently time firearm at this same services as he was not for his duly registered relationship him the for with the which was an informer. This produced noteworthy events ATU. two ATU supplying informa- addition to ATU with agree purchase the ma- to 5. Sirles did A met tion. few weeks before Sirles gun because his ar- this time chine ap- he had filled out an McGinnis rangements had been with the ATU plication Permit. Firearms for Federal purchase did not the Berettas. application swore that he had On the he interested the know whether ATU punish- for a crime never been convicted gun. testi- machine in the Russian by imprisonment exceed- for a term able very mony fa- was not indicates that he ing year, untrue. See one which was weapons. miliar with supra. ex- footnote At trial Sirles Beatty ap- plained described testified he made that at the time Baptist “somebody Shorty plication thought statement above bombings apply McGinnis tes- does and stuff.” him his conviction did not since Beatty Shorty jail li- tified that referred in a sentence. A had not resulted Bigs Baptist subsequently Mr. who did as one issued cense bombing becoming that “all on Northside ATU after associated with the pick up phone and I have to do is to whether his conviction dis- he asked them qualified Shorty Baptist holding and we will have license. call him from pic- give did, Upon hearing out. Just them a them rubbed he turned person prosecuted ture and tell them where the license. was never He obtaining Also Sirles for the license. lives.” However, jury say found him on record before cannot ment. us we guilty possession of the that such Indi- and transfer discretion was abused.7 viglio States, (5 gun submachine in violation of the Na- v. United 1957). properly Cir. Also tional Firearms the trial court Act. judg- overruled for motions appeal eighteen this errors on the On acquittal ment and his motion in ar- part specified of the district court are judgment rest of or for a new trial generally grouped and can be follows: accordance with Rules overruling (1) produce motions to F.R.Crim.P. weapons for in the indictment described inspection, overruling the defense II judgment acquittal motions though Even Sixth Amend judgment motion arrest of or for guarantees right ment an accused the trial; excusing (2) unqualified a new an impartial jury composed be tried juror from further service its own persons, twelve Patton proceeding motion and with the remain- 281 U.S. ing making jurors; (3) (1930), right may L.Ed. be presence jury which were ad- waived, States, supra; Patton v. United versely prejudicial appellant; (4) ad- (5 Horne v. United 264 F.2d 40 mitting into evidence various items of 1959); Taylor States, 142 Cir. United sustaining testimony, objections and (9 Cir.), F.2d 808 cert. U.S. den. 323 questions; certain of defense counsel’s (1944), 723, 56, L.Ed. 581 89 (5) refusing to submit the issue of en- by agreement it was done here of both trapment jury; admitting (6) in- any juror counsel that in the should event ap- to evidence the conversations between pro incapacitated, become the trial could pellant through and Sirles overheard elec- long jurors ceed as there ten were .as by government agents; tronic devices able serve. (7) admitting post- into evidence the appel- conversation between III alleged lant and Sirles. These errors will be discussed in the order as listed carefully We have reviewed above. that not entire record and conclude trial the statements made I judge by appellant to have cast claimed application An Rule under in and his counsel a bad both himself production light jury, prejudicial Fed.R.Crim.P. for the and in before the spection tangible judge’s of appellant, articles left to the is con the trial but that judge sound of throughout discretion the trial was duct the trial character- gave apparently questioning and 4 Counts 3 of the indictment a witness who was complete description distance, and detailed of was that he too close weapon proceedings. “going involved these to make witnesses mad and description going your Such was as follows: off.” The to knock head gun, 7.62mm, having “A Submachine witness when a defense second occurred barrel, appel- 10.65 inch serial number that statement volunteered the employed, lant, by manufactured Communist China whom the witness was (Chinese copy Shpa- weapons purchased of Russian those other than gin)” judge of, that witness was aware weapon “very A different was obvious” described that was volunteered acquitted count “full was on not have that the witness could Beatty everything knowledge that count. that Mr. of lastly, prosecuting And when the does.” attorney complained judge appellant, 8. The trial testi- made three presence volunteering jury appel- behalf, fying in the which was his own alleges casting questions lant had the effect him- of in answer di- information self, attorney examination, judge and a defense witness cautioned rect light. might something your “you say in a law- bad first The statement was Judge counsel, say.” you yer when the advised defense want don’t meetings during impartiality their and the by complete fair- various ized falsity such statements. of truth toward the ness objection sus- was counsel’s Government IV testimony ground tained on the objects sought hearsay. Although to the admission de- was testimony permitted numerous items latitude cross- is wide fense agent examination, second recital McGinnis’ think the trial we do not conversation, post-indictment cross- judge’s of such cross-examina- limitation hearsay excluding wit- purpose examination of character for the tion nesses, McGinnis’ construction of discretion. an abuse was interpretation Firearms Federal V Act, agent McGinnis’ declaration govern- Entrapment is established he Sirles that advised design originates when the criminal to make ment did not wish Ap- implanted anything intend to do. officials is do he didn’t person so mind an innocent pellant in the the above claims irrelevant, commit a crime that he is induced to immaterial either and/or predisposed prejudicial. not otherwise States, to commit. Sorrells admissibility of evidence L.Ed. 413 U.S. governed by Rule 26 criminal cases States, (1932); United Suarez v. n ofthe Essentially, test F.R.Crim.P. (5 1962); Rodriguez v. F.2d 709 Cir. admissibility materi (cid:127)of is relevance (5 Cir. ality. However, a crim all evidence in 1955); F. Demos v. United carefully be scrutinized inal case must affording (5 1953). Merely 2d 596 Cir. prejudice. possibility As to for the opportunity of a for the commission materiality possible weighing entrapment. Lopez not Unit crime is v. prejudice, United concluded in the court States, 1381, 427, 83 ed 373 U.S. S.Ct. (2 175, Johnson, 176 254 F.2d States v. (1963); v. 10 L.Ed.2d 462 Sherman relevancy 1958): “Only if Cir. its States, 369, United 356 U.S. 78 S.Ct. chance of resultant minimal and the 819, (1958); v. 2 L.Ed.2d 848 Sorrells prejudice great be should the evidence States, supra. a defendant United Since excluded.” by asserting that maintains this defense very made a cautious We have the criminal action was notjMntemplated record, careful examination of by until commit he wasAndUced por particularly those with reference to by government^agent, it a the defendant by appel alleged tions of the act must admit committed the that he conclu is our lant to be inadmissible. It Oretga crime.9 v. which constituted er no court committed sion that the trial States, (9 F.2d Cir. United 348 874 ror. 1965); States, F. 314 Marko v. United Rodriguez (5 1963); Unit 2d 595 Cir. v. Appellant also cites as error States, supra. ed sustaining objection of an prosecution Appellant of the to the to cross-examination no evidence offered witness, ready willing (cid:127)government Defense Sirles. effect that he was case; sought prove by weapon state Sirles’ in this counsel to sell the involved that he McGinnis had made nor did the maintain ments which States, entrap Appellant spiracy v. issue cites Sears United introduced the support particular (5 regard 1965) a overt 343 F.2d Cir. ment 139 deny may that one act the court his contention criminal held charged entrapment inconsis and at defense of was not the act committed entrap charge of con maintain he was tent with his denial of same time factually ped doing. spiracy. dis also Marko v. into Sears is See United so 1963). present States, (5 tinguishable In case. 314 F.2d Cir. from the 595 charged con the defendant Sears

187 427, 1381, upon unduly prevailed this 10 L.Ed.2d to sell 373 U.S. 83 S.Ct. was weapon; any States, (1963); 462 United On Lee v. nor did he contend 967, 747, pressures were 343 U.S. 72 L.Ed. or inducements S.Ct. 96 undue (1952); States, 1270 that the Maddox v. United no made. There was evidence 1964); (5 charged product 337 F.2d. 234 United Cir. was the sale Miller, (6 activity 316 F.2d Cir. States v. 81 creative 1963); Chapman States, agents agents further United went v. or that the (5 1959).10 creating plan F.2d Cir. which than opportunity for would be afforded Those electronic situations More- commission of offense. eavesdropping has not withstood consti consistently over, appellant denied has challenge tutional are limited to those gun sale of machine to Sirles. circumstances in which the electronic de accomplished phys vices an unauthorized the evi of the fact that view penetration constitutionally pro ical into as to the defense the record dence premises occupied by tected accused. genuine presented entrapment issue protected Such forceful intrusion into light of fact and areas violates the Fourth Amendment. weapon sold firm that he ever denial Virginia, 158, Clinton v. U.S. 84 S.Ct. charged, not error for the 1186, reversing (1964) 12 L.Ed.2d 213 jury judge to instruct trial refuse Commonwealth, 275, Clinton v. 204 Va. Lopez entrapment. on the defense (1963); 130 S.E.2d Silverman v. States, supra; United States United v. States, 505, United 365 U.S. (2 al., Cir. et Place (1961); 5 L.Ed.2d Goldman v. States, 1959); Rodriguez v. United States, U.S. S.Ct. supra. (1942); 86 L.Ed. 1322 Olmstead VI 277 U.S. (1928); 72 L.Ed. 944 Katz v. United contends that 1966); (9 369 F.2d 130 Cir. testify to allow federal officers to con Wainwright, (5 Cullins v. 328 F.2d 481 through use of a versations overheard 1964). Cir. radio on an inform transmitter secreted engages of- who heard federal er accused conversa The conversations govern prearrangement tion ficers between Sirles through Fourth, equipment Fifth ment violates the use electronic Certainly place appel- in Amendments. took Sixth were those which testimony informant, Sirles, place home of and at his lant’s of business arrangement through voluntary purely to his conversations with which place appellant. In took in his store and home are between and the States, admissible. Hoffa v. on the United 385 fact the transactions overheard 374; 293, 408, L.Ed.2d commis- U.S. 87 S.Ct. 17 radio receiver constituted 206, States, Lewis United 385 U.S. sion of the crime with which v.. 424, Further, charged. S.Ct. L.Ed.2d 312. device 87 recordings 17 was later The electronic appellant’s trespass of conversations with defend occasioned no by privacy. appellant’s ants the use of con electronic devices It carried into person premises person cealed on the of an informer and of There on the Sirles. overhearing persons slightest of hint is not that Sirles even by appellant’s conversations means of such de was in store not welcome dealings history vices also in un admissible evidence home. In fact the of der the facts and in the circumstances indicates between Sirles and presented place in this case. v. United of business Osborn that Sirles “entered a States, 439, 323, 429, by consent, implied 385 U.S. 87 S.Ct. with the if not 394; Lee, Lopez supra, 17 L.Ed.2d invitation” of On Apparently Ap- interpretation 10. the District of of the cited cases. Court our peal disagrees Hajdu (3 Cir.) State, (1966). of Florida v. 189 So.2d 230 188 971, radio transmitter be installed his Al- 96 L.Ed. at 72 S.Ct. govern- by of which a though automobile means en- occasions which Sirles agent equipped appropriate ment with an appellant’s shop clothed and home

tered receiving pre- could conver- device overhear transmitter were with the concealed government car. Act- arranged sations carried on Colson’s by and the ing government agent’s person, direc- device, being under a agents, on Sirles tion, his Colson induced Massiah to enter illegally implanted in was not parked him talk Therefore, car then induced premises. has been there held about case. Colson Massiah and conse- fourth amendment violation agent lengthy agents’ conversation while quently testi- sight parked regarding sat in a car out of down mony over- the conversations to the con- by street and listened entire trans- use of the electronic heard Massiah made several incrim- versation. mitter arid receiver is admissible. inating during the course statements nothing find in the circumstances We govern- conversation. At trial this disclosed the record in this case ment to the incriminat- testified as which these were over- conversations ing means statements overheard rights un- heard that violates jury equipment. The con- the electronic Ap- der the fifth and sixth amendments. victed Massiah of narcotics offenses pellant’s on Massiah v. United reliance the convictions were affirmed. The Su- 1199, 201, U.S. 84 S.Ct. ground preme Court reversed on the support (1964) his con- L.Ed.2d rights Massiah’s sixth amendment rights tentions that his constitutional violated the use evidence have been discussed violated will be post-indictment de- the next section. by govern- liberately elicited from him agents ment in the absence of re- VII tained counsel. Appellant contends that the ad mission of the of both Sirles opinion reiterat In its the court post-indictment and McGinnis to the guarantee specific of the sixth ed the conversation between to the that one is entitled amendment support constituted reversible error. of counsel not aid and assistance this relies on contention during during the critical trial but also States, supra, Massiah v. period immediately preceding, from the Supreme Court reversed a conviction trial. to time time ground admitting on the into evi Wainwright, 335, Gideon U.S. v. post-indictment dence the conversation Spano (1963); S.Ct. L.Ed.2d 799 between the inform accused a secret York, People 360 U.S. of State of New iner the absence of counsel violated L.Ed.2d right accused’s under the Amend Sixth Alabama, (1959); Powell v. State very ment. We have made a careful L.Ed 158 287 U.S. study opinion of the Massiah and are clearly (1932). right This to counsel convinced that in this the factr case to means that an accused is entitled clearly distinguishable so from those being present is when his counsel application Massiah the of the interrogated by police such unless the “Massiah doctrine” is unwarranted. right Spano expressly waived. See York, supra. People of of New petitioner In the State Massiah case the peti Therefore, (Massiah) the the court held and one Colson were indicted protection violating for was the basic tioner denied the federal narcotics laws. was lawyer, pleaded amendment when there Massiah of the sixth retained a not against guilty along his own him at his trial used was released on bail incriminating which federal statements with Colson. Without knowl- Massiah’s deliberately edge, agents from him elicited cooperate had Colson decided to with government. The court of counsel. permitted his the the absence Colson 189 (1964) exclusion L.Ed.2d 977 not restrict this rule did during police for an accused were to elicited from elicited inter any rogation police but held that at a time when the at a station incriminating resulting from was entitled to statements counsel.13 interrogation surreptitious indirect However, following the cases are illus- were inadmissible. incriminating trative situations where statements the court stated: were made conclusion without counsel but such statements held to be- were be “All that we hold is that the defend yond exclusionary the rule of Massiah. statements, incriminating own ant’s appellant sought The reversal by agents under the obtained federal Gardner, (7 States v. Cir. disclosed, circumstances here could not 1965) ground, alia, on the inter constitutionally by prose be used the the trial court committed error in ad- him his cution evidence at. mitting incriminating into evidence state- added) (Emphasis trial.”11 Deputy ments he had made to Marshal meaning interpret language We this Fisher. The statements .referred exclusionary apply the rule does days ap- above were made several after incriminating to all un- made statements pellant’s indictment while Fisher was any by af- der circumstances an accused taking appellant prisoner, and another indictment, ter his rule Belcher, by automobile to confer applies to those induced statements attorney. their Fisher overheard Belcher deliberately elicited officers or their appellant discussing attempts their agents from accused after his indict- the burglary at joined and even con- ment while he is without assistance by making versation a remark about An counsel. examination of cases decid- attempt burglary at made supports ed since Massiah this conclu- two co-defendants. Fisher testified at sion. the trial as to the above conversation. ap The Massiah doctrine was held to Although appellant urged that trial ply in Clifton F. court’s refusal to exclude Fisher’s testi- (5 1965) prior 2d 649 Cir. where in mony was reversible error under Massiah questioned dictment was Seventh Circuit held that agents jail FBI aid while without admissions voluntary and were not During interrogation of his counsel. deliberately elicited. incriminating statements. case of United After in the The court held such be (2 Accardi, Cir. 342 F.2d inadmissible States v. under Massiah and Esco certain Illinois, 1965) the volunteered bedo v. State of 378 U.S. right spoke 12. 11. Massiah While circumstances involved are dis- beginning arraignment, Judge Escobe- opinion at counsel closed Lumbard right held that an accused has do when the Massiah case was before proc- Circuit, “when the counsel investigatory Second consult F.2d 62. From stated, particularly accusa- pages shifts ess tory.” facts there on government opinion, L.Ed.2d 84 S.Ct. at 66 and procure contacted Massiah “to Colson, listen to his conversation”. only 19 13. In the accused Clifton government acting involved, witness appointed years age, had been counsel inducing “in behalf repeatedly. him and had visited Chrysler Massiah to enter and talk jail for over had been confined in He about case.” Colson contacted Mas- that he was months and testified two under siah “instructions the from inves- solitary for a month a cell confined tigator” and such instructions were “no interrogation. immediately preceding his than more to induce to Massiah talk”. he as was further that Clifton testified opinion (Emphasis added) The discloses being in- to a small taken his cell from deception that was used on Massiah and terrogation attor- for his room he asked interrogated by “Captain” present he was at re- ney Colson the to evi- be but the quest attorney. government. dently of the the to contact failed govern- incriminating a secret informer a result of the acts a to statements gas renders in- agent the same circumstances station when the a ment resulting from subpoena the agent statements to admissible had come serve a officer, agent’s e. when The acts of a known law i. appellant’s brother-in-law. actively testimony or was informer officer as conversation to the deliberately to make the induces the accused conversation held admissible because entirely by appellant, such admissions. there initiated was him make offered to no inducement was informers course, use of secret the Of they statements, made be- nor were the prac- deceptive very by nature is its upon any practiced deception cause of However, the general sense. in a tice by agent through attempt or the being that held Supreme has not Court interrogate him. to any con- respect violates in this deceived accused right. the It is when stitutional F. In Stowers v. United deliberately plan to of a is the victim (9 1965) co-de Cir. 2d 301 him af- from information elicit harmful engaged appellant in a conversa fendant absence and in the ter joint the offense tion their cell about rights constitutional one’s counsel that The for which had been indicted. teachings of the under focus come into ap subsequently testified at co-defendant Massiah. ensuing pellant’s trial as to the conver Although appellant sation. contended operation entire the In Massiah that the had been directed co-defendant sponsored. Here the government was by government agent to act as its agents instruct Sirles government did not incriminating in order to elicit state in conversation engage the to him, not ments the evidence did The meet him. or to associate even plan part such a on the of the show incriminating state ing at which government therefore the co-defend suggested not made was ments were testimony ant’s held to be admissible. was himself. by the but Sirles Similarly, in Paroutian v. United interrogate ap question or did not (2 ap 1967) 370 F.2d 631 Cir. where get way any to attempt pellant pellant incriminating made statements the machine sale him to talk about cellmate, to his cellmate’s voluntarily spoke of gun, but admitted was into evidence. The court fact, in weapon. only stated that Massiah excluded state very purpose of dicates interrogation ments as a result of exactly what meeting to find out government agent. The cellmate weapon and done with Sirles had government agent was not a nor did any possibility that Sirles to thwart interrogate purchase of might testify it. his about only quite From these Hence, cases think it we is record shows only ap- talk clear that decision Massiah induce did not encourage government plies agents pre- where needed meditatively approached talk the accused wanted to with ment. design inducing just simply the intention con that. While him and he did fully protected, incriminating rights make must be statements while stitutional Although approve the con unaided counsel. inclined to the we are not is deliberate facts Massiah demonstrate that a se- duct of a defendant ly designed from com cret informer was used to deter witness testify. government’s ing part plan boldly chair to induce witness gov incriminating obtain that Sirles informed It true request accused, agents from the do not we think the ernment agents him, to at told Sirles court held statements made an meet all meeting requested and an informer in- tend the accused to an unknown of Sir the trunk secreted admissible. decision renders sanctioning Nevertheless, those statements made as les’ car. inadmissible meeting presence require at a sufficient informer an reversal of the con- sending and even viction specifica- the accused and a called new trial. This tion, by appellant conversa- to listen in on the an for the first time equated procuring appeal, on with tion cannot be relates to the admission alleged deliberately eliciting prejudicial testimony by information or the se- Generally informer, Sirles, Agent a secret cret from an accused. McGin- testify pertinent eight days informer to such nis. can Sirles testified that after appellant’s same known to him to the facts as are indictment and before his tri- al, appellant, informer can bail, extent that a non-secret then free on tele- phoned testify. asking that he meet him. appellant Sirles was not known to to be agents required to not Government are appel- Government informer. Nor was sign that turn a deaf ear at first prior thereto, lant aware that on Decem- voluntarily going ad- accused is 7, 1964, ber alleged the date of the of- wrongdoing. If mit his the accused vol- fense, meetings in the several Sirles had illegal untarily to talk about his desires day to consummate activities, agents are not gun, the sale of the Sirles had been they compelled to but excuse themselves equipped by Agent McGinnis with a may impunity. even listen How- miniature radio transmitter which he ever, again emphasize we wish to person, allowing Agent wore on his Mc- government agents are to con- forbidden electronically Ginnis to hear all of the encourage tact induce an ac- conversations between them. As a result procure obtain, cused to talk in order call, telephoned or elicit information from him at a time Agent McGinnis, inquiring whether he counsel, when he is entitled to but such meeting, should attend the and was told present. counsel is meeting to do so McGinnis. The be- Having error, found no reversible we tween and Sirles was held on affirm. February 18, 1965 in Sirles’s automobile Judgment affirmed. Agent McGinnis was secreted in the trunk where he overheard the entire con- AINSWORTH, Judge (dissent- Circuit versation between Sirles and ing) : forty-five which lasted about minutes. regret agree I that I cannot with the equipped McGinnis had himself with a majority opinion in this case. fol- testified', tape-recording device which he lowing my reasons: work, failed to but he heard the conver- Appellant, an authorized firearms deal- sation nevertheless. er, operator owner and of the Modern Both Sirles and McGinnis then testi- Shop, Birmingham, Alabama, Gun fied at trial to the conversa- convicted of a violation the National largely tion appellant, between Sirles Firearms Act on much a secret Government informer named highly which damaging Sirles, ex-convict, having prejudicial who is an been These wit- years age convicted when on inter- nesses testified heard transportation state of a stolen ask vehicle Sirles what he had done with the sub- placed probation, gun him, the testi- machine he had sold and Sirles mony given of Federal Alcohol and Tobacco said he had it to a truck driver in Agent McGinnis, having Miami, Tax unlaw- Florida. testified n fully gun sold submachine quite to Sirles. told him he had a few ille- gal gun tommy guns; denied the sale of the that he was worried selling parts admitted gun some of the of such about the sold and threatened gun pled entrap- to Sirles. He also appeared against Sirles that if he him or specified by gun ment. Numerous errors are court, somebody ever came into appellant. However, I Shorty will consider Baptist named would take - specification my opinion one Agent care of him. McGinnis corrobo- purportedly testimony. and while he was dictment said that he He rated Sirles’s attempting from intimidate tes to done what had heard ask against tifying gun him at the trial. The him he sold

with the submachine majority opinion de states that several replied it to a that he sold and' Sirles sup driver; Massiah lend cisions rendered since said that Miami truck holding court; port has been up that there gun to its the had better not turn up constitutional pick no invasion appellant had to do was that all rights to the secret Shorty Baptist his statements phone since and call Agent by informer, Sirles, Mc out”; overheard be “rubbed would voluntary Ginnis, illegal and not deliber every legal gun, appellant had an majority ately cites United The elicited. one. 1965, Cir., Gardner, 347 F.2d States v. Supreme relies on the taking deputy 405, a a marshal where Court’s decision Massiah v. United prisoner to a fed and another defendant 201, 1199, U.S. building attor confer with their eral to support (1964), of his L.Ed.2d 246 incriminating neys conver overheard contention that admission of testi- prisoners, between the two sation mony the con- and McGinnis to testify it Sev was allowed and Sirles versation between is Also cited enth Circuit affirmed. er- constituted reversible automobile 1965, Accardi, Cir., v. United States Massiah, ror. evidence was used 697, defendant volun 342 F.2d where the incriminating against the accused incriminating statements teered certain by a co-defend- statements made him to agent who had come to a Government their and release ant after subpoena gasoline station to serve and in of Massiah’s on bail the absence In the brother-in-law. defendant’s counsel. statements were overheard The initiated cited case conversations were by agent on radio a Government without agent by with Government defendant knowledge defendant’s that his co-de- entirely present who for an different fendant had turn informer or decided to defendant, interrogate reason than to permitted that he had Government single question and in fact did not ask a agent to install a radio transmitter under concerning facts of defendant the front seat of automo- co-defendant’s The admitted. case. statements were Supreme The bile. Court held that de- v. Another citation is that Stowers fendant’s Fifth and Amendment Sixth States, Cir., 351 F.2d United rights against privilege relative to the prisoner in the same which involved a self-incrimination and to the aid of coun- who testified cell with a defendant sel had been use of defend- violated incriminating him. conversations incriminating ant’s in evi- statements affirmed, stating that Circuit The Ninth dence him. appel support no evidence to there was majority opinion attempts The to dis- cellmate lant’s contention tinguish Massiah, arguing differs agent acting or in behalf as an on the facts because the idea of the meet- majority Finally, cites Government. ing in Massiah at which the federal Cir., Paroutian v. surreptitiously incriminating overheard in made where 370 F.2d statements defendant to his co-defend- criminating his cellmate statements originated Government, ant with the authorities informed federal who sugges- present whereas case the of made and had been the statements meeting tion for is said to have testify The cellmate’s to them. fered to originated major- into evidence was admitted ity opinion argues that there was no de- None affirmed. the conviction plan liberate Government to ob- applicable on the facts cited cases incriminating ap- tain clearly dis all are present ease and pellant, which statements were volun- tinguishable. tarily subsequent in- to his secretly Cir., 405; Agent Spano presence McGinnis’ People York, compartment of 360 the trunk of Sirles’s vehi- State of New U.S. 315, 1202, 3 cle was not chance or accident. 79 S.Ct. L.Ed.2d 1265 mere Though appellant (1959). here, Massiah, to have initiated In is said there was Sirles, objection meeting the secret admission of with eaves- - dropping setup result of deliber- Massiah his code was the conversations with prearrangement ate McGinnis with fendant at trial. United the time of See possible Cir., Massiah, 1962, for the secret informer Sirles States v. 307 F.2d 62, use at trial. When McGinnis at 65. meeting go

told with the ahead During period pro- of the critical hid with and himself ceedings, from time defendant equipped trunk of car and himself charged trial, until his he is much en- recording device, a inference is with titled to the aid of counsel as at the trial expected inescapable that he Alabama, itself. Cf. of Powell State v. during the meet- incriminate himself 45, 55, 287 U.S. 77 L.Ed. 158 53 S.Ct. recording ing and a of the that he wanted (1932); States, Cir., Clifton v. United at the of conversations for use trial 1965, 341 F.2d 649. Since Johnson v. pending then indictment. Sirles must Zerbst, 458, 1019, 304 U.S. S.Ct. McGinnis wanted have realized that (1938), L.Ed. 1461 the fundamental con- something incriminating appel- out of right stitutional under the Sixth Amend- otherwise, mouth; lant’s it would have ment to the assistance of counsel in the McGinnis, pointless tape been for prosecutions defense of all criminal recorder, trunk to hide in the of Sirles’s scrupulously federal courts has been cooperating fully automobile. Sirles was deny right by maintained. him this To help with the his Government convict post-indictment secret and before-trial by being own a business customer secret eavesdropping of conversations with a Government did not informer. informer, secret then recount a know that was Government in- prejudicial incriminating statements of former nor was he aware McGinnis trial, deprive appel- is to tape a was secreted in his trunk with re- lant of the assistance of effective counsel everything overhearing corder that was stage aat when such advice would have said. This conversation and the state- helped Spano People him. See v. of State purportedly ments made York, 315, 1202, of New 360 U.S. 79 S.Ct. voluntarily cannot be said to been (1959). 3 L.Ed.2d 1265 Cf. Miranda v. deliberately full knowl- Arizona, 436, State of U.S. edge identity of the of Sirles or of the 1602, (1966).1 16 L.Ed.2d 694 The sur- presence They made, of were McGinnis. reptitious post-indictment conversations course, without counsel eavesdropping unlawful being present. specific objection to No thus contravened constitutional this McGinnis rights but admission of made at the trial Though highly prejudicial voluntary, Sirles in the automobile were plain error, affecting substantial consti- regard do not differ in rights noticed, tutional should be those were likewise Massiah which grave and we are doubt left with whether completely free from coercion.2 a conviction would have resulted under 52(b), Spano People the circumstances. Rule Fed. See v. State of New R.Crim.P.; States, York, supra, Douglas point- Landsdown Mr. Justice 1. See also O’Brien v. set aside and new trial ordered Supreme per opinion. 18 L.Ed.2d U.S. in a curiam Court involving deeided March elec- Court, eavesdropping tapping Term, Supreme tronic wire See the after indictment where a conviction was 143 at 221. Harv.L.Rev. marks ed out SOCIETY, corporation, a JOHN BIRCH legal proceedings beginning Plaintiff-Appellant, Having indict- reached defendant. awaiting trial, ap- stage while ment COMPA NATIONAL BROADCASTING every pellant to counsel at was entitled NY, corporation, Broad National thereafter, in- stage proceedings News, corporation, casting Company meeting cluding the time of Defendants-Appellees. With benefit automobile. Sirles’s counsel, is doubtful WELCH, E. Bunker Robert Laurence engaged in conversation would Hays, Plaintiffs- and MacDonald jury by was related to Appellants, in Minn. was said McGinnis. As v. Elsen, (Enker Coun- L.Rev. 49 at 57 NATIONAL COMPA BROADCASTING Suspect), issue “The real sel NY, corporation, National Broad presented in Massiah is whether law-en- casting Company News, corporation, may forcement officials seek evidence Defendants-Appellees. from an mouth when the accused’s own 342, 343, Docket 30978. Nos. talking accused does not he is realize that Appeals United States Court of providing them such officials and is Second Circuit. help with evidence will convict Argued Lyles Beto, Cir., 1964, Feb. 1967. him.” In affirmed this Circuit denial 2,May Decided corpus habeas relative to a court state upon conviction which was based a writ- voluntarily confession

ten

defendant after but before appointment of counsel. certiorari On Supreme Court, a memorandum curiam, per judgment vacated the

remanded the case for reconsideration in light of Massiah. See 379 U.S. Though L.Ed.2d 552. majority applica- states that Massiah is

ble to the facts and circumstances case, legal princi-

of that it is clear that

ples have evolved Massiah which applicable person here and that once a

is indicted in a criminal case he has a

right during to counsel before and voluntary

trial and his conversations

admissions made of court out to secret informers,

Government overheard sur- reptitiously agents, are Government

inadmissible evidence the absence express

of an waiver the defendant. my view, admission of the testi-

mony of McGinnis to sur-

reptitiously post-indictment overheard seriously prejudicial

conversations require sufficient

error reversal granting of a conviction new

trial. respectfully

I dissent.

Case Details

Case Name: Donald Croom Beatty, Jr. v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 12, 1967

Citation: 377 F.2d 181

Docket Number: 23226

Court Abbreviation: 5th Cir.