Joseph Allen Wilson v. Hon. Robert J. Henderson, Superintendent, Auburn Correctional Facility
584 F.2d 1185
2d Cir.
1978
Check Treatment

*1 invita- present open otherwise is hold may cross line prosecutors

tion to bright, but nonetheless

not be by the fifth amendment.

drawn reasons, I it im- find foregoing

For the assurance, “with fair

possible to conclude happened without pondering all action from

stripping erroneous

whole, judgment that the was not substan- . swayed by the error . .

tially [and] affected.” rights substantial States, v. United Kotteakos Oakes, with dissented Judge, Circuit 90 L.Ed. 1557 765, 66 S.Ct. opinion.

Accordingly, I reverse.

Joseph WILSON, Allen

Petitioner-Appellant, HENDERSON, Superin

Hon. Robert J. Facility,

tendent, Auburn Correctional

Respondent-Appellee.

No. Docket 78-2015. of Appeals,

United States Court

Second Circuit.

Argued May Sept.

Decided provide contradictory expended to evidence. prosecutor applies when the similar rule (1 Flannery, government See United 451 F.2d evidence States v. summation characterizes 1971); F.2d him- Cir. uncontradicted and the defendant Desmond v. United (1 1965). non-testifying co-defendant can be self or *2 Zuckerman, City, New York Jeffrey Ira petitioner-appellant. Lefkowitz, of the Atty. Gen. Louis J. A. Hirshow- York and Samuel State of New Gen., itz, City New York Atty. First Asst. Gen., Silverman, Atty. (Arlene Asst. R. respondent- brief), for City, New York on appellee. OAKES, Judge, and BLU Before Circuit * MEHRTENS,** District

MENFELD Judges.

MEHRTENS, Judge: District July morning early Taxicab three robbed the Star assailants dispatcher on Garage and murdered the identified the duty. employees Three Star Wilson, having petitioner, Joseph Allen the crime. premises been on the before Wilson, they had seen Two testified the scene employee, running former from incident, money in his cradling after the arms. voluntarily sur- days

Four later Wilson He rendered himself to the authorities. promptly and advised of his arrested Walter rights by Detective seriatim that acknowledged Cullen. Wilson rights. At the each of his understood rights, conclusion of the recitation if, understanding all of his asked Wilson a “statement.” rights, he wished to make que- then The officer replied, “No.” me what ried, “Well, care to tell you ** * Mehrtens, Blumenfeld, William O. Senior United Joseph Hon. Senior United Hon. M. Judge Judge for the Southern District States District States District for the District of Con- Florida, sitting by designation. necticut, sitting by designation. appeal The instant is taken from the dis- responded 4th?” Wilson you did denying petition Detective trict court’s order Wilson’s affirmatively revealed to corpus. Wilson cites as for a writ of habeas at the scene and Cullen that he had been at trial of his state- error the admission crime, but insisted witnessed the Lee, and also chal- ments to Cullen and Wil- involved. personally he had not been *3 grounds the that he lenges his conviction on premises for to fled the son claimed have the a trial and that speedy was denied being blamed. fear of motion made it im- discovery denial of his the with his narrative Wilson concluded possible adequately prepare him his for to words, asked Wil- “And that’s all.” Cullen defense. he he would to tell him where son if care the Wilson between 4th and 8th. was “No, all I have emphatically replied, that’s that the use at trial of Wilson contends point questioning At that say.” to to Detective Cullen violated his statement ceased, to a deten- and Wilson was removed privilege against his self incrimination un- as- subsequently was tion cell. Counsel Fifth Amendments. der the and Fourteenth represent him. signed to a argues He that his initial refusal to make cellmate, Lee, Benny previ- Wilson’s was continued in- statement undermined agreed an informant ously to act as court that terrogation. The district found specifically Detective Cullen. Lee outset, at the despite Wilson’s hesitance to question, not to or but inquire structed clearly subsequent remarks to Cullen which his ears for information keep open not Wilson voluntary and were coerced. to of Wilson’s apprehension could lead finding court’s dis- that the district submits accomplices. v. of Miranda regards clear command 1602, 16 Arizona, 86 S.Ct. U.S. to the same Initially, repeated Wilson Lee must (1966) “interrogation that to that he had related version of facts any “indicates in cease” if an individual was that Lee’s comment Cullen. . remain manner . . wishes to end of good. By too story did sound silent,” subsequent any and that statement day, made an auricular the third Wilson product of com- “cannot be other than robbery to complicity confession at 86 S.Ct. at pulsion.” murder. decreed When the Miranda Court charged with Wilson indicted in upon must cease possession law murder and common silence, it did not vocation of trial, to weapon felony. as a Prior per proscription create a se of indefinite to suppress moved to his statements upon questioning. further any duration People v. and Lee. accordance with holding Miranda Court clarified the Huntley, N.Y.2d N.Y.S.2d Michigan Mosley, judge trial (1965), state N.E.2d ap it where on the issue of the pre-trial hearing held a interro of custodial proved resumption inculpatory statements admissibility of the warnings. The gation following renewed adversely court ruled made Wilson. The admissibility of a that the Court determined Wilson, admit- to and the statements were suspect exer returned a verdict jury ted at trial. The depends on his remain silent cised counts, was sen- on both and Wilson guilty questioning” his to cut off “right whether twenty years to a of from tenced term “scrupulously honored.” has been a con- life on the conviction and to murder at 96 S.Ct. 321. seven'years term exceed current not to Mosley buttressed this court’s antecedent weapons The conviction count. Collins, 462 appellate conclusion affirmed the state court (2nd Cir.) cert. denied 409 appeal the New F.2d 792 leave to York Appeals was denied. authorities, warnings acknowledges new to the

questioning can resume after ders rights have the defendant given. In Collins he understands each of his and does questioned wish to offer rights request may was advised of his no counsel well Indeed, Justice during exculpatory less than six times hours in custo- statement. Michigan dy confessing participation concurring opinion before in a White in his robbery. agents Mosley, Government advised the warned a construction any question- “impris- defendant of his halt Fifth which would right to ing, immediately and the interrogation privileges” on a man in his and which would ceased when the indicated that defendant ability suspect explain thwart of a he did not want to discuss the case. This particularly incriminating supply fact or to held police may court that the ask a defend- an alibi that in his immediate would result ant ques- to reconsider refusal to answer release. 423 at tions and stated: *4 quoting ex rel. Adams v. United States long urged McCann, as such is

So reconsideration U.S. careful, in a noncoercive manner at not L.Ed. 268 great length too and in the context that a care When asked if he would to talk right defendant’s of his not to assertion crime, about what day he did on the of the honored, speak will it not violate be does unhesitating response Wilson’s was an the Miranda mandate. ver- unequivocal exculpatory “Yes.” His 462 F.2d at 797. sion of the facts was related in narrative response to a series of fashion and not in represents attempt Collins an to balance questions by the The record re- officer. exigencies investigation of criminal veals that it was Wilson’s decision to termi- with the strictures of Miranda. The Miran- nate the session. When he indicated that recognized da Court custody that creates an nothing say, he had further to Wilson was compulsion inherent on an accused to in- promptly interrogation removed from the criminate prophylactic himself. Miranda’s “right room which demonstrates that his to requirements part were devised to coun- questioning” “scrupulously cut off was hon- teract the pressures coercive of the custodi- ored.” setting, al and to assure with reasonable

certainty in-custody that an confession is factually The instant case differs the result knowing voluntary of a waiv- from in that in the lat Mosley and Collins er privilege against individual’s self interrogation ter cases the ceased when the suggests incrimination. Collins that speak defendants declined to and did not some persistent yet instances moderate in- period elapsed resume until a time had terrogation when accom- may permitted be given. warnings and renewed We are panied by sincere affirmations of the ac- belief, however, not of the that the crucial cused’s rights efforts determining factor in a Fifth Amendment temper to of the coerciveness custodial length violation be the of time be should atmosphere. persuaded Nor are we questioning. tween “badgering Crisp,

The absence of from relent- that the rationale of United States v. less interrogators” apparent 1970) is even more 435 F.2d 354 (7th Cir. cert. denied 402 the instant case than in Collins. 462 F.2d U.S. you (1971)

at 797. “Would question, applied Cullen’s care should be under the circum to tell you import Crisp me what did on 4th?” could stances of this case. The that, fairly explanation despite be as an to seemingly construed innocuous conduct, Wilson that a need slightest “statement” not be a not even the deviation attempt confession and as an may ascertain from the decision be tolerat Miranda however, scope refusal to make ex Michigan Mosley, of Wilson’s ed. reasonably plained “statement.” It be con- did not establish invi would that Miranda olate, to be- the Miranda experience per sistent with the officer’s se rules and that voluntarily into safeguards lieve that a who surren- be transformed suspect should not that case to Fifth apply therefore decline to legitimate police obstacles irrational Although the issues until Amendment self incrimination vestigative activity. resumption ques- ruling have been Mosley implications condemned of such momentary respite, wright such tioning explored. Sykes, Wain fully See fact relentless focused on the criticism 86 n. Williams, would undermine

rounds of (1977); Brewer L.Ed.2d being questioned and person will of the purposes frustrate of Miranda. (Powell, J., concurring (1977) 1232); ex rel. Henne v. of the There is not a hint in record Fike, (7th 1977). was instant case that Wilson’s will to resist ques- by persistent or coercive overborne contrary, appeared To the

tioning. II return, We interrogation. control next is that his incrimi- Wilson’s assertion therefore, in Miranda to the observation cellmate, nating statement made right is the safeguard critical Lee, improperly admitted at tri- Benny we questioning, off conclude cut in violation of his Sixth al honored herein. scrupulously to counsel under Massiah v. United Fifth Amend- Accordingly, petitioner’s self incrimination privilege against ment not violated under the circumstances *5 Massiah, petitioner following The in this case. for of narcotics indictment violation federal if Even the admission of state laws, guilty lawyer, pleaded retained a we improper, ment to Cullen been had agent was bail. A and released on federal find the harmless would be inclined to error means in listen- surreptitious succeeded California, 18, v. 386 U.S. 87 Chapman S.Ct. incriminating statements elicited ing to 824, allegedly (1967). 17 L.Ed.2d 705 The he free on petitioner while was from place more tainted evidence no than did were introduced bail. The statements crime, at the scene of a fact trial, he was petitioner at against testimony of was which confirmed reversed, Court Supreme convicted. The statement, The eyewitnesses. several holding that evidence, therefore, and its was cumulative pro- petitioner was the basic denied beyond was a reasona admission harmless when tections of [the counsel] California, v. 395 Harrington ble doubt. Cf. trial there was him at his used 1726, 250, 23 284 89 L.Ed.2d words, incriminating evidence his own deliberately which agents federal affirming ground As a further elicited from him after had been below, respondent urged conviction has the absence of counsel. dicted Powell, v. 96 that Stone at 377 U.S. 84 S.Ct. (1976), precludes fed- doubt Miran- In the of Massiah some corpus eral habeas relief Wilson’s aftermath post-indictment all da claim. The held that the remained as to whether Court Stone require presence a state constitution does not statements made without inadmissible, prisoner corpus whether granted be federal habeas counsel would or be statements would be tainted provided op- such relief where the state has deliberate, pre-meditat- fair of a when portunity litigation for full and made a remarks holding Fourth claim. The ed effort elicit Amendment Circuit, rely- Fourth The Third grounded upon Stone was from a defendant. expressly per re- Supreme curiam ing Amendment search and seizure issues on the Court’s Ohio, 381 U.S. exclusionary Supreme versal of McLeod v. rule. (1965), concluded far confined the effect of L.Ed.2d carefully has thus post- claims, inadmissible all we that Massiah rendered to Fourth Amendment Stone directed to refrain from specifically statements obtained without indictment Wilson; regardless questioning counsel circumstances. Lee confirmed those testimony. complete rel. v. New Jer United ex O’Connor instructions in his States denied, (3rd Cir.) cert. absence in this ne- sey, interrogation case O’Connor, gates that Wilson’s Yeager proposition v. state- deliberately According ment was elicited. 23 L.Ed.2d Brewer, protection circuit, however, plainly- This not attach under these circumstances. majority requires view which adopted the interrogation Absence of also an is than that there be some circumstance more Hearst, F.2d sue a de the mere absence counsel before (9th 1977) cert. denied 435 U.S. is ren post-indictment fendant’s statement 98 S.Ct. In United dered inadmissible. States rejected argument where the court Garcia, (2nd Cir.) 377 F.2d cert. denied required by Massiah. intentional, argued Hearst secret lis (1967), this court refused to extend Sixth prohibited tening would suffice as the “de protection voluntary, Amendment to a in liberate of incriminating elicitation” state criminating the defend ments. Hearst’s conviction affirmed ant to a federal officer the officer where despite that the surreptitious her contention completely unaware of existence of her tape recording in her cell of self incrim seeking an indictment and was not informa inating with a friend conversation violated charged in the indict tion about the crime- her Sixth Amendment counsel. affirming ment. this conviction Similarly, the court in United States court said: (3rd Fioravanti, Cir.) F.2d 407 post- Massiah was thus not aimed at all 97, 24 denied gathered by indictment evidence there was no commented prosecution, but at the narrow situation where violation of the Sixth where, indictment, enforcement law *6 freely the volunteered an incrim defendant authorities have elicited” in- “deliberately inating agent an undercover statement to criminating statements from a defendant deliberately who along had been arrested by interrogation surreptitious direct or by with the defendant. at n. spon- means. The rule does to apply not therefore, case, significant- The instant is voluntary by taneous or statements made Brewer, ly different from where the Court presence in the govern- the defendant of police questioned found that the the de- agents. ment fendant intent to specific with elicit incrim- (footnote deleted). 377 F.2d at 324 inating police The in statements. Brewer The Supreme recent of Brew- Court case promised that the defendant would counsel Williams, er supra, strengthened this cir- his during transporta- not be interrogated interpretation cuit’s restrictive of Massiah. defendant, tion ac- city. to another The Brewer, In the “no Court that such stated girl, cused was murdering young a protection the to [of known to one to be a reli- deeply officer assistance of counsel at time the de- the gious, patient. The officer former mental incriminatory fendant made the state- incriminating sought remarks to obtain there play would have come into if ments] stating by from that he felt the defendant interrogation.” had been no they the that stop body should and locate so 400, 97 at 1240. the have a girl might little Christian burial. judge The trial in eventually the instant» case The made several in- defendant interrogation criminating po- found that there had been no and directed the statements Supreme to by girl’s body. whatsoever cellmate.1 lice the Court undercover speech Detective testified Lee had held that the burial” was that “Christian presumption finding a to factual entitled 1. This correctness under 28 U.S.C. § 2254. thermore, m-custody an that admission of under tantamount to to an voluntarily was entitled made to informant the defendant Massiah time he use a state- egregious at the seems less than the assistance of counsel by The Court electronic eaves- incriminating intercepted statement. ment an that in upheld be no doubt as dropping stated that there could device was United set deliberately designedly Hearst, out a supra. officer When defendant States v. unsolicited, incriminating to elicit information. incrimina- completely makes a a ting remark in face-to-face encounter contrast, any Lee did not make effort In informant, knowingly with an assumes he Wilson, interrogate placed nor in to was may ultimately the risk that his confidant purpose. cell for Both Lee and illegal In prove untrustworthy. to be to job that Lee’s listen Cullen testified Supreme search seizure case the for the of Wilson’s confederates. identity stated: Massiah, Supreme Court stated: [njeither any this member of it Court nor case, that in this question We do not expressed ever the view cases, to many entirely proper it was con- wrong- a protects Fourth Amendment suspected investigation tinue an of the person misplaced doer’s belief defendant and criminal activities of the his wrong- whom he voluntarily confides alleged confederates, though even doing not will reveal it. indicted. already defendant had Hoffa v. United 377 U.S. at 84 S.Ct. at (1966) Thus, investigation, of the i. purpose Nor can a shield be found the Sixth such e., furtively attempting uncover iden- Amendment. perpetrators, of the two cannot tity other An purposes examination served Further, did where Lee be censured. suppression sup- of evidence further Wilson, interrogate any way attempt nor below this ports the decision reached remarks, incriminating deliberately elicit issue. The exclusion of reliable evidence is the rule of has not been trans- Massiah remedy fashioned the courts in order gressed. impermissible to deter conduct and to fact Nor is the informant preserve judicial integrity. placed surrepti in Wilson’s cell under case Cullen’s action this point tious a distinguishing circumstances type behavior which reprehensible police repeatedly in this case. This court has held discourage. compelled the courts feel voluntary, that a defendant’s suggest instructions Lee conscious person statements made to a known *7 part guard effort Wilson’s on Cullen’s to government officer defendant to be a are a cru- rights pursuing while properly under Massiah. United admissible directions, investigation. cial His homicide Garcia, supra; v. States v. States United keep your “Don’t ears questions; just ask (2nd 1973); 472 F.2d 899 Cir. Unit Gaynor, attempted open,” suggest familiarity Barone, (2nd Cir. ed States v. with, of, compliance not circumvention Maxwell, 1972); v. 383 F.2d United States principle of Massiah. these circum- Under 1043, (2nd Cir.) 437 cert. denied 389 U.S. 88 stances, to exclusion Wilson’s confession 786, (1968); S.Ct. United no Ac- purpose. Lee would serve useful Accardi, (2nd Cir.) 697 States 342 F.2d there opinion we are cordingly, 426, cert. denied 382 U.S. S.Ct. infringement was no of Wilson’s Sixth (1965). Ostensibly, comparable right to coun- Amendment the assistance of agents to statements made undercover sel. should receive similar treatment because the fact is Ill received or otherwise con surreptitiously deprived Wilson also claims that he stitutionally irrelevant. Brewer Wil trial court’s liams, of a speedy Fur- trial and that at U.S. repre- time Wilson was not at that it im- because discovery of his motion made denial by his defense ade- sented counsel. possible prepare for him to against quately. The district court ruled Wilson renewed his motion Wilson on both issues.2 open just prior court to the commencement complains twenty hearing. The court advised Huntley of the his indictment and delay month interval between the start probably him that it would trial, his trial violated his Sixth that he should discuss of the delay appears right speedy to a trial. further men matter with his counsel. No adjourn largely by to have been caused The district tion was made of the motion. When requested by ments defense counsel. said judge it could not be concluded that original appointed judge counsel to a denied, but rather that that the motion was necessary ship, postponement further withdrawn, ostensibly as a matter of it was time to counsel give order to the new judge further strategy. trial The district peti familiarize with the case. The himself by determined that statements object delay tioner until one did not Huntley petitioner were introduced at the trial, no month and there was indica before in sufficient time for hearing and the trial delay. tion that prejudiced he was his defense. adequately prepare Wilson to circumstances, Under these Wilson has not 790, 801, 72 Oregon, Leland v. See suffered a Amend violation of Sixth (1952); 96 L.Ed. 1302 Cicenia v. right ment Barker v. speedy trial. See Gay, La 514, 530-532, Wingo, 407 L.Ed.2d 1523 (1972); United ex rel. States respects We concur in all with the deci- McQuillan, Spina v. 525 F.2d 817-818 sion below. (2nd 1975); Cir. United States v. Drum AFFIRMED. mond, (2nd Cir.), 511 F.2d denied 423 46 L.Ed.2d (dissenting): OAKES, Judge Circuit Infanti, (1975); I respectfully dissent. (2nd 1973). F.2d 527-528 a state- After Wilson to “make declined petitioner that he was also asserts ment,” inter- Detective not cease Cullen did rights denied his due because of the process rogation. slightest deference Without state court’s denial of his motion to discover wishes, imme- expressed Wilson’s police reports, records of switchboard “Well, calls, diately question: asked him the telephone by witnesses statements records, you tell me what did on you and their arrest and all statements would care to stop ques- This failure to made Wilson himself. The motion was 4th?”1 initially rights to renew prejudice tioning denied without violated Wilson’s Miranda presented had a I 2. These issues A. He remain silent. court at petitioner’s yes. insistence and were submitted asked him if he understood. He said I pursuant anything say counsel in a brief filed to Anders v. told him he did could be used California, him in a court of law. I asked if he understood; yes. replied I told him he attorney; could have an he had a to an Appellant surrendered at the 44th Detective now, attorney any time in the future. *8 There, Squad. placed him un- Detective Cullen understood; yes. I asked him if he he said Following der arrest. a short conversation be- attorney, told him if he could not afford appellant’s tween Detective and Cullen brother provided charge. one would be of for him free Michael, colloquy and then a brief between yes. I him I asked if he understood. He said brother, appellant and his Detectives Cullen him, this, having then asked of understood all appellant and Dunn took into an office. you do wish to make a And he statement? pretrial “Huntley hearing,” replied At a no. Detective say? ensuing interrogation you Cullen described the as What did then Q. him, “Well, you I then follows: A. asked would you you beginning, me what 4th?” From the tell us what care to tell did on Q. say did he to that? said to the what he said to What defendant and Q. you? Yes. A.

1193 Arizona, adopted majority, by 384 of New York and the Miranda v. in enunciated 436, 471-74, S.Ct. of “permit which would continuation developed as in subsequently momentary after a interrogation custodial 96, 96 Mosley, 423 U.S. Michigan v. id.,3 cessation,” provided sus- that only (1975). Rather, pect’s overborne. was not will teaching an essential of reiterated Mosley, supra, Michigan Whatever else of state- admissibility “the Miranda —that Miranda, did not did it construe “the person custody after the ments obtained of interrogation language must that cease” depends . to remain silent decided maligned require only much case2 “to ‘right questioning’ to cut off on whether his questioning, cessation and to immediate of ” Id. at ‘scrupulously honored.’ permit resumption interrogation a after Here, (footnote omitted).4 at 326 Id. at momentary respite.” a statement, when declined make a opinion at Just as 325. Justice Stewart’s to remain effectively he exercised his Mosley Miranda observed that did not “cre- silent. Detective immedi- per se Surely ate Cullen’s proscription of indefinite dura- id., did interrogation, ately subsequent interrogation tion” further it honoring of similarly abjured equally scrupulous doctrinaire amount to a that Miranda, Crisp, See United States reading by decision. espoused State appel- “A. think at that he declined Dunn then the room and I time Detective left proceeded lant to tell Detective that he he had answer whether been involved. looking garage had been at the Star brother, for He declined to answer? “Q. “A. Anything had heard had shots and seen the about the Yes. robberies.” explained lying on the He he suppression Mosley victim floor. hearing, At the did not in get then fled because “was afraid any way dispute testimony. [he] Cowie’s Not un- blamed.” trial, judge til the motion after had denied statement, suppress did decided, 2. it Since Miranda was I believe that Mosley offer somewhat different version First, principal has exercised two effects. it his earlier refusal answer Detective Cow- given poor suspects the has rights or same amateur questions. ie’s Mos- briefs submitted professional suspects rich or have Ap- ley’s Michigan counsel to the Court of always always had. The have refused to latter peals accepted And, and to this Court Detective second, “mouthpiece.” their talk without cor- Cowie’s account of the rect, required police to do Miranda has more Michigan Appeals de- investigative and the Court of thorough work than some of them premise. doing cided case on that factual At had been accustomed to before that case Court, argument oral before this both counsel was decided. Graduates of better train- solely ing agents investigating the case of Cowie’s academies FBI discussed terms professionally long description committed crimes since of the events. n.11, mainly upon investigative techniques Michigan Mosley, relied “grilling suspect.” other than Unless we 46 L.Ed.2d Warren, disbelieve the Justice are to late Chief Mosley dispositive. questioning is not There the terrible Miranda were derived from rules Mosley after resumed two hours first refused to Arizona, practice. FBI Miranda v. make a complete full and then n.54, & warnings again Miranda admin istered. Id. at Nor S.Ct. 321. does minority, suppose, Collins, (2d Cir.), in a But then I am United States v. thinking Perhaps, denied, that Miranda is so horrible. adoption of the Miranda rules exercise In L.Ed.2d 254 lins, control this case. Col rule-making power judicial than rather interrogation ceased after Collins stated ” “ palata- statement,’ would have them more decision not want to did make ‘he ble. J., (Mansfield, dissenting). F.2d at attempted, questioning Each new it time even a Here of course there was not momen- Id., preceded by warnings. fresh Miranda tary questioning. cessation rehearing at en banc court 799-800. “ ‘interrogation simply Mosley’s must cease’ held initial decision to remain silent was adequate warnings expressed until have been in these new terms: given infer is a and there reasonable basis gave only testimony Detective Cowie voluntarily changed ring suspect has that the concerning suppression hearing scope *9 at 802. his mind.” Id. Mosley’s earlier refusal to answer his questions: 1194 per- point equally 1970), find the Massiah9. de 354, (7th 356-57

F.2d case, here, conceded 1640, nied, 947, 29 L.Ed.2d In that as 91 suasive. 402 S.Ct. U.S. scrupu incrimina- contrary, Cullen to secure (1971). was used agent On request.5 ignored Wilson’s defend- lously represented from a ting statements There is counsel. of his ant in the absence sure, “piece- Miranda has suffered To be difference, except one of reliabili- surely no erosion; it would weaken and some meal” transmitter the radio ty perhaps, between But Miranda has not been over- further.7 Massiah and the planted cellmate used in twenty more than briefs though ruled even Thus, only real distinction here. used Williams, 430 U.S. were filed in Brewer v. “inter- Lee did not Benny is that advanced (1977), 387, 1232, did But the Government rogate” Wilson.10 to do so.8 Unless urging the Court Certainly Miranda, “interrogate” Massiah.11 we as lower Court overrules that Massiah rely on the fact Court did courts are bound to follow it. Williams, 387, 401, True, Mosley opinion, Brewer v. makes 10. 5. Justice Stewart (1977), subsequent interroga- 51 L.Ed.2d that the much of the fact is that Massiah that for states that “the clear rule of tion related to a different offense from given. adversary proceedings commenced original warnings have once which the legal individual, 104-05, he has a 321. commenta- an U.S. at One may representation government interro- suggested has this fact be of when tor controlling significance. omitted). Stone, gates (footnote But I do not Miranda him” The language Court, Sup.Ct.Rev. Brewer Burger think that the use of this Doctrine in the 99, case, however, Stew- Massiah. Justice In this subse- has sub silentio limited 134. Cullen’s begins by pointing opinion out quent interrogation crime art’s in Brewer focused on rely custody be- Miranda for which need not which Wilson was in Court warnings. initially that the Sixth cause it was “clear” Miranda received implicitly con- was violated. Then Court may not have been formal- cedes that Williams 6. Id. at 169. proscribed by ly interrogated Mi- in the sense deliberately Learning de- “Detective randa: Ritchie, Compulsion That Violates the See signedly from Wil- set out to elicit information Burger Fiñh Amendment: The Defíni- Court’s surely just perhaps more ef- liams as as—and tion, 383, (1977). 61 Minn.L.Rev. 429-31 It is formally interrogated fectively than —if he had interesting in the to note not one case 399, him.” 430 U.S. at 97 S.Ct. at 1239. years Supreme in the has wit- Court last five single nessed a item of evidence held inadmissi- points the state then out Court Stone, supra ble on the basis of Miranda. See proceeded as if the detective’s courts had 100-01, interroga- note 96 S.Ct. 321. In speech had been “tantamount - Arizona, Mincey recent case of Throughout opinion, the tion.” the rest of the -, (1978), 57 L.Ed.2d 290 using “interrogation” mean must Court be excluded Miranda -violative admissions Court both elicit- formal and “deliberate impeachment purposes, Har- introduced for see ing” (which formal). is “tantamount” York, ris v. New 401 U.S. 91 S.Ct. “interrogation” chosen, language may be ill but they L.Ed.2d 1 untary. because were also invol- that the the Court’s statement “clear rule” Massiah is that the to counsel attaches “interrogates” by any when the State could not may pre- be 8. Predictions of Miranda’s demise imagination interpreted be as a stretch of the Stone, supra An- sentence, See note at 169. mature. limitation of Massiah. The next deed, rule, exclusionary maligned other much rule, “requires that it no wooden to the effect Powell, erosion, despite see Stone v. some application” of to con- or technical Massiah 428 U.S. 96 S.Ct. 49 L.Ed.2d 1067 counsel, was entitled to clude that Williams Calandra, (1976); United States v. substance, spirit, well as the shows that the 94 S.Ct. of Massiah is alive and well. Delaware, vitality. its core Franks v. retained 11. The Massiah said: -U.S.-,-, 57 L.Ed.2d later, days quite A few without Kamisar, (1978). See also Is the Exclusion- petitioner’s knowledge, co- decided to Colson ary “Illogical” Interpre- Rule an or “Unnatural” government agents operate with the in their Amendment?, 62 Judica- tation of the Fourth continuing investigation ac- of the narcotics ture 66 Colson, petitioner, tivities in which the allegedly engaged. others had Colson Massiah v. United permitted agent Murphy named to install

H95 Williams, supra, v. See Brewer Rather, critical what is interrogated.12 10 supra. 1232. See elic- note “deliberately 400-01, conduct 97 S.Ct. police is whether in information, not manner precise ited” grant the writ unless I would reverse were obtained: the statements which retried. appellant were petitioner was denied We hold that guarantee of that protections the basic him at his was used

when there incriminating his own

trial evidence of

words, had agents deliber- which federal

ately elicited from him of counsel. in the absence

indicted and v. Spano [Spano is in

It true that 1202, York, 215, New 360 U.S. CORPORATION, COPPER KENNECOTT (1959)] the defendant case Plaintiff-Appellee, station, in a while was interrogated testimony was elicited damaging here v. knowl- without his from the defendant CORPORATION, CURTISS-WRIGHT But, as on bail. edge while he was free Defendant-Appellant. in in his dissent out Judge Hays pointed No. Docket 78-7187. a rule is Appeals, “if such the Court of indi- efficacy apply it must any have Appeals, Court of interrogations as surreptitious rect and Circuit. Second jailhouse. in the well as conducted those Argued June case, seriously more this Massiah was . . because he did imposed upon . Sept. Decided under interro- even that he was not know agent.” gation government

F.2d at 72-73.

Massiah United 1199, 1203, 12 L.Ed.2d 246

84 S.Ct. know, still the law. Massiah is

As far majority cases are under front 12. The cited distin radio transmitter Schmidt Garcia, automobile, by guishable. 377 F.2d of In United States v. seat of means Colson’s denied, (2d Cir.), Murphy, equipped appropriate with an cert. which receiving device, (1967), the 19 incriminating officer from some could overhear were made away statements carried on whom distance conversations words, was, majority’s own “unaware in the car. Colson’s evening an indictment and was Col- the existence of On the November charged lengthy seeking petitioner about crime conver- information son and the held automobile, Hearst, sitting indictment.” United States the F.2d sation while Colson’s denied, 1977), (9th By prear- parked cert. New 1347-48 on a York street. Colson, rangement totally with unbe- petitioner, agent Murphy known also from this case since to the sat differs incriminating sight parked made in a car out of down the street Hearst the statements working to the entire con- to Ms. Hearst’s friend who was and listened over radio petitioner in- was sim The made several the Government. Their conversation versation. agents. during ply by government ma criminating the course of recorded statements Fioravanti, petitioner’s jority’s trial United this conversation. At the reliance on States denied, incriminating brought (3d Cir.), these statements were testimony, jury Murphy’s also through before the despite case, misplaced. objection informant In that where an insistent of defense petitioner along jury who was arrested with the defendant convicted the counsel. offenses, subsequently statements and the several related narcotics informant, arresting purpose were affirmed convictions elicit Appeals. not to admissions from formant . protect per 202-03, (footnote and his but to his cover at 1201 defendant son. 377 U.S. at omitted). See id. at 413-14 n.15.