*1 63,- Wainwright, v. Arango Case Nos. judgment of the district court 562; 63,563,-So.2d-(Fla. Sept. hereby VACATED and the case is RE- 1983). The Florida court remanded MANDED to the district court to be held in case to the state trial court for an eviden- abeyance until the exhaustion of the claims tiary hearing alleged Brady on an violation. asserted in present state proceedings. Prior to the Florida Court’s de- The Petitioner is given 10 days after the cision, none of these prop- claims could have presently claims pending in state court have erly been considered a federal court be- been exhausted within which to move to cause Petitioner had not exhausted his state dismiss this case as moot or to amend his 2254(b), remedies. 28 (c). U.S.C.A. §§ petition to all include claims he wishes to Brady claim still pending in the state court raise before the federal courts. could presented not be this time The district court shall expeditiously federal court. If the unexhausted claims proceedings duct such be appropri- alleged, had been the district court would issues, ate on these other and supplement have required been to dismiss the petition its prior order to include a decision on all containing both exhausted and unexhausted presented claims not heretofore decided. 509, 522, Lundy, claims. Rose v. Upon entry of a final judgment in the court, district either party may promptly Rose, Under the Petitioner then could have pursue an appeal appeal this Court. The present claims, amended to only exhausted expedited. shall be The parties shall file or returned to the state court for exhaus- supplemental only, briefs briefs tion prior bringing the federal petition. to be used on all presently issues The failure to include claims unexhausted before Court. could, however, cause the Petitioner to lose opportunity litigate the future the VACATED AND REMANDED. unexhausted claims. 455 U.S. S.Ct. at 1204. things: Court knows certain (1) Pe-
titioner has not waived being the claims court; (2)
asserted in state the state court
proceeding potentially could moot this fed-
eral proceeding; (3) past experience in
death cases indicates that if relief is denied court, in the state Petitioner will assert America, UNITED STATES those petition claims a successive in fed- Plaintiff-Appellee, eral court and will probably incorporate asserted; some of the (4) claims here LISENBY, Defendant-Appellant. is no time within which such a successive petition filed, would have to be so that No. 80-5903. what done appeal might on this Appeals, States require reconsideration on a petition. second Eleventh Circuit. judicial the interests of economy, this federal proceeding should in abey- be held Oct. ance until all of the claims Petitioner wants to assert are exhausted and before
a federal court. In order to repe- avoid the
tition delays that can occur in these
proceedings, the following Court enters the
order: guilt jurors composed pen- defenses as to and formed an unfair and who favored the death prejudicial
alty already rejected mindset. and who had his trial *2 RO- GODBOLD, Judge, and Before FAY, VANCE, TJOFLAT, HILL, NEY, HENDERSON, KRAVITCH, JOHNSON, CLARK, HATCHETT, ANDERSON Judges. PER CURIAM: banc to recon- rehearing en We court’s refusal whether the district sider of Amos conversations informant a confidential Lisenby made requires arrested Lisenby had been after under Massiah United reversal 1199, 201, the district panel affirmed court, 693 F.2d Capo, States v. (11th Cir.1982), with Chief God- en at 1340. After dissenting, 693 F.2d bold consideration, during the we find that banc conspiracy to Lisenby of Amos for trial intent to dis- Lisenby’s surrep- the admission tribute made after his tiously recorded As to Massiah. did not contravene arrest defendants, the panel issues and all other opinion is reinstated. BACKGROUND
FACTUAL
marijua-
agents infiltrated
Government
the Panama
smuggling operation
na
Offi-
July
area.
Florida
On
City,
Fla.,
Judkins, Tallahassee,
James P.
the Florida
Russ,
investigator of
cer
an
Capo.
Patrol,
marijuana at
inspected
Marine
Tallahassee, Fla., for
Kitchen,
E.C. Deeno
Warehouse,
on “Boura-
located
Marifarms
Lisenby.
A.
79 in West
Highway
off of
Bayou
tion
1088).
Russ had
(Tr. at
Officer
area.”
Bay
Kahn, Jr.,
Thomas,
Pen-
Leo A.
Charles J.
placed
not observed the
sacola, Fla.,
Lisenby.
for C.
Amos Lisen-
nor had he seen
the warehouse
Dewrell,
Blue, Jr.,
Lloyd
J. LaDon
F.
up
set
inspection. Russ
by during his
Beach, for T. Williams.
Fort Walton
Amos
vicinity” and saw
“in the
surveillance
Jr.,
Weed,
Bishop,
Conrad C.
John R.
17, 1980 on
July
at
a.m. on
1:00
Fla.,
Perry,
for Booker.
road, used to
98 which
the beach
“the old
38.”
It’s now
back beach road.
McGee,
Atty., Talla-
be called the
David L.
Asst. U.S.
testimony before
1092).1
hassee, Fla.,
(Tr. at
plaintiff-appellee.
argument.
during
The loca-
banc oral
where
the en
warehouse
1. The distance between the
precise
during
are not
stated
Russ
the location
tions
was stored and
this dis-
enough
determination
enable
leave
where Officer Russ saw Amos
Bay
Map
tance,
Coun-
controversy
even
reference
subject
the truck was
some
jury concerning
sighting
Officer Russ’
nal conspiracy” declined to suppress the
was that
“ap-
tapes.
(Tr.
177).
(Tr.
peared
sweaty.”
1092).
to be
appealed his conviction on
counts,
both
contending
tapes
arguments
court,
*3
should have been suppressed under Massiah
agreed that
Russ
watched
Officer
had
Li
States,
201,
v. United
377
1199,
U.S.
a
senby leave
truck in a vacant lot. There
(1964).
violation of a U.S.C. misdemeanor § possession marijuana. (Tr. 156). parties agree of at Li All that any analysis of the exercised senby rights and obtained of problem a statements made after an arrest lawyer. lawyer The notified the should commence govern with the landmark case of 23, States, 201, ment of Massiah v. representation July on 377 1980. U.S. 84 S.Ct. L.Ed.2d 246 Both the later, 30, July A week Amos Lisenby government and Lisenby rely Amos on simi met with Cody Lisenby his brother and larities with or distinctions from Massiah. Oblisk, Vern who had become a Massiah awas merchant seaman indicted informant. to attempting Oblisk was con- with a man named possession Colson for of Daryl tact through Cody Holman Lisenby, vessel, cocaine aboard United States money order obtain which Holman spiracy import. and to Massiah owed During meeting Oblisk. with the pleaded guilty. Colson, however, not decid- brothers, a body Oblisk wore bug cooperate ed to the government’s with in- and recorded the conversation. Both Lisen- vestigation. With ra- permission, Colson’s bys made statements concerning their in- dio transmitter was installed under volvement in the landing transporta- of front seat his car. Colson tion of the the thereafter held a lengthy conversation Amos as well as his brother sitting while the car. A government Cody, and six other persons were indicted agent listened to the including conversation possess marijuana with Several incriminating statements made intent distribute in violation 21 U.S.C. During (cid:127)Massiah. testimony, his trial 841(a)(1). The § misdemeanor agent incriminating related Massiah’s state- charge against Amos was dropped. ments. Massiah was convicted of several moved the re- narcotics offenses. Reversing the convic- corded statements obtained by tion, Yern Oblisk. Supreme United States Court held expressed Government counsel the desire protec- that Massiah was denied the basic introduce both the statements Amos Li- tions of the Sixth Amendment “when there senby residue found in was used him at his trial evidence the rental truck. The suppressed words, trial court own incriminating which fed- truck, found residue in the but “in agents deliberately view eral elicited from fact that this was an ongoing crimi- him after he had been indicted and ty, published by Bay County Florida Cham- that Amos was several miles from the however, appear, ber of Commerce. warehouse exclude the inference that vicinity” parking that Russ’s statement “in should truck was in the warehouse liberally possibility construed to include the area. expected man to kill co-defendant trigger U.S. of counsel.”
absence
trigger
testify
S.Ct. at
meeting
police and
man informed
seminal United States
The other
police
listened to the
arranged
which
considered
which must be
decision
contract
confirmed.
defendant
Hoffa v. United
was indicted and convicted for obstruction
(1966). James
that Massi-
justice. The Court concluded
violating
originally
Hoffa was
and held
applicable
ah was
Act and was on trial
Taft-Hartley
for one
pendency
Nashville,
period
Tennessee.
immunize a defendant
does not
offense
trial,
the Test Fleet
which
known as
accountability for statements made
from
company
frequently
Hoffa
an-
in the commission of
after indictment
officials,
King
of two other Teamster
*4
crime,
it shield him from
nor does
other
however,
making re-
Partin,
was
Partin.
concerning them.
testimony
concerning
agent
ports
government
to a
Fleet
jury.
bribe the
Test
endeavors to
noted that
The court further
Id. at 1303.
was
hung jury.
with a
Hoffa
trial ended
in-
right
if
to counsel had been
even
endeavoring to
for
subsequently
only
convicted
infringed
it would be
fringed
jurors,
appealed
two
corrupt
and
highjacking prosecution
pending
Court
cer-
States
suppres-
United
“to
would be no entitlement
entirely
tiorari.
bearing upon an
of evidence
sion
new, subsequent
Id. The Fourth
offense.”
Hoffa’s claims under the
rejecting
recently adhered to Missler Unit-
Circuit
Amendments,
Court
Fourth and Fifth
Calhoun,
(4th
923
v.
669 F.2d
ed States
Amend-
whether Hoffa’s Sixth
considered
Cir.1982).
Hoffa
was violated.
ment
government
logic
informant
has followed the
argued that because
The First Circuit
Meachum,
in the hotel suite
F.2d
Partin was often
In Grieco v.
Missler.
the confiden-
considered the
attorneys,
(1st Cir.1976),
with Hoffa and his
the court
relationship
imper-
challeng-
was
attorney-client
petitions of six men
corpus
tial
habeas
state court convic-
missibly
ing
intruded
their Massachusetts
even if such
a 1965 murder.
relating
Yet the
reasoned that
Court
tions for crimes
case,
only
if
pending
it would
relevant
were
was incarcerated
Casseno
awith
Gla-
approached
Fleet trial had concluded
A fellow inmate
the Test
murder.
sentence,
hung jury. To set
life
vin,
rather than a
an inmate and under
conviction
also
jury tampering
conviction
Glavin to confess to
pay
aside Hoffa’s
and offered
charged.
and irration-
unprecedented
be “both
for which Casseno
would
murder
government
ANALYSIS OF LISENBY’S CLAIM of statements made after the arrest initial case, subsequently trial for
In the a dis- charge the of mis possession demeanor tinct offense not contrary to Massiah. government, however, attempt judge 2. The to in- the trial it. but the excluded troduce the from residue the truck in charge Lisenby instructed were they CONCLUSION the because misdemeanor with its refus- correct court was The district him connect was not sufficient conversations the al to Li- warehouse. with the convictions Vern Oblisk counsel, notified the who senby retained Lisenby are AFFIRMED. pros- representation. expect- he counsel that defense told ecutor dissenting, GODBOLD, Judge, Lisenby on against ed to KRAVITCH, Judge, joins. whom Later, se- officers charge. conspiracy It is obvious troubling decision. is a his in the absence cured from offense” “separate be a must that incriminating him in statements attorney, But to Massiah. exception participation including conspiracy, case. fit exception offense” on the dock unloading of- says the court opinion The mis- to the transporting it why tell us does not It separate. are fenses The in- dismissed. charge was demeanor separate In Hoffa separate. are they introduced criminating jury tampering charge offense was conspir- on the at his trial dur- occurring events from that had arisen acy charge. law Taft-Hartley on trial ing Hoffa’s separate offense In Missler charges. considerably prosecution closer the defendant justice by was obstruction appellate judges. this case than are we out charge, put hijacking who, on indicted understood that the offenses were not who de- co-defendant to kill a a contract “separate.” was indicted on police. thought sung fendant conspiracy charge, he asked a bill of murder, and charge was primary Grieco particulars, government responded offer an offense separate copy of the on which complaint murder. to confess prisoner pay possession charge. had been arrested two offenses these cases In each of pretrial Before the began, facts. operative from arose *6 judge in which the hearing conducted contrast, opera- the the case in admissibility of both the considered the overlap, tive facts and indeed all the marijuana in the van and of the found possession charge facts of the misdemeanor incriminating tapes. government The charge. conspiracy the included within are marijuana” tended the “van was ad- that of mari- Police in surveillance engaged participation missible to show Lisenby’s bringing involved juana conspiracy that i.e., conspiracy, marijuana the the in the marijuana City, boat to Panama by circum- vicinity van of the warehouse Florida, it was unloaded onto the where marijuana stantially linked to a warehouse near dock and trucked judge pointed within the The it City. Panama There was to be secreted government to the that if he so ruled out for some 24 and then taken elsewhere hours Mas- tapes would be inadmissible under by marijuana truck. While the government then siah. He relieved warehouse, Lisenby was arrested in what consequences understanding of its from the “vicinity was described as the of the ware- by the case theory of the facts and its house,” a.m., by an officer at 1:00 surveil- permitting tapes be introduced and warehouse, alone ling who saw marijuana excluding validly seized van sweaty, up, and hot and drive out of his government that the wished to introduce truck, pass sight. out help conspiracy. tie bumper officer found on the government not judge —did —like separate; the truck and then inside the assert that the two offenses rather, thought government truck. The next was arrested day he that charge on a inconsistent permitted urge of misdemeanor should not marijuana. admissibility for the Before he was arrested officers theories of tapes; so make, baby he cut the charge asked the what in half. could, should, He have allowed the van that caused him to resume his terminated (as government role in the conspiracy. This issue is not asked) tapes. and excluded the Instead he Massiah, squarely within nor is it entrap- opposite; did the excluded van mari- ment. But arguably it is within the con- juana tapes. and admitted the ruling cept governmental overreaching. I re- stood Massiah on its head. gret that the court has not seen fit question. address this
Differing views of judges about what is the same offense and what separate are CLARK, Judge, under the a particular dissenting.
offenses facts of case itself, hardly, subject for en banc I agree Godbold, with Chief Judge consideration. I am not certain what stan- district court and the prosecutor1 that these dards govern principled should decision were not and distinct offenses. making where a court must apply Massiah The majority opinion cannot make them to a defendant on conspiracy trial for who separate by saying they are. Amos Lisen- previously has been criminally by, Hoffa, Missler, Grieco, unlike an act part conspiracy, and, of the subsequent embark criminal activ- while he counsel charge, has on that earlier ity. He was solicited to attend the meeting interrogated has him in the with his brother and government informer absence of his the ongo- Oblisk by telephone calls from Oblisk2 at ing conspiracy and has elicited from him the instigation of the statements that incriminate him in the con- inculpatory then fur- spiracy. I hoped had that en banc consider- nished the prosecutor with the evidence ation give would us some standards. has necessary to convict Lisenby. Massi- not. Rather the court disposes the case ah v. thrusting into a convenient pigeonhole L.Ed.2d 246 into which it does not fit.
Nor has the court faced a second trou-
bling issue. was arrested
and his Sixth Amendment to counsel triggered, activity
ceased insofar as the record shows. His
activity thereafter was about government, which arranged for the America, UNITED STATES of informer to meet with the ab- Plaintiff-Appellee, sence of his counsel and to seek *7 assistance in getting evidence DiMATTEO, Kessler, Richard Morris party third that would tie the party third Suggs, Defendants-Appellants. James conspiracy (by party’s third paying money informer owed for helping No. 81-6001. conspiracy). While engaged in this endeav- United States Court of Appeals, or Lisenby made the incriminating state- Eleventh Circuit. question. ments in required presence of counsel unless was en- Oct. 1983. gaged in a govern- offense. The ment itself within the
offense” exception by instigating activity
by Lisenby, counsel, absence “Lisenby counsel, charge.”
1. acy retained who notified the Godbold’s dissent at representation. prosecu- expected tor told defense counsel that he 2. Oblisk called the brothers fourteen against Lisenby conspir- times at the direction of the