United States v. Mark Lewis Singer

BRIGHT,* Before ROSS and JOHN R. GIBSON, Judges. Circuit GIBSON, Judge. R. JOHN Circuit appeals again Mark Lewis after a second trial from a conviction of con- spiracy possess marijuana and distribute * Myron Bright opinion Honorable H. on June before this status Eighth Circuit Circuit at the States time filed. this case was He submitted. took Senior commerce, Appellant’s source.” Addendum at 2.

in interstate in violation (1982),and attempt copies to distrib- U.S.C. materials were of 56 documents § marijuana to aid and abet ute attorney-client from Meshbesher’s file re- marijuana, attempt to in violation distribute lating representation Singer. to his (1982) U.S.C. 2 of 21 U.S.C. 846 and 18 § § immediately moved to dismiss the challenges the conviction on prosecutorial indictment for misconduct. argues grounds. principally He that five hearing, At the motion Assistant United prosecution’s acquisition and review of the Schermer, Attorney States Daniel W. who file, attorney’s and strategy trial subse- government’s had tried the case quent prejudicial press, the statements to Singer, that confidential testified the doc- resulted a of his denial sixth years uments were obtained two of counsel. effective assistance by Minneapolis conviction Police He contends fifth amendment Sergeant Ronald Johnson. source was protection against jeopardy double Stoll, co-conspirator Marshall an indicted of precluded his retrial when first fugitive a who was at the time of reversed the basis conviction was on of trial, first who in turn had received He judicial misconduct. seeks dismissal of person. them from a third Schermer fur- indictment, alternatively, reversal of Stoll, ther delivering stated that before new the conviction and a trial. We affirm documents, they provided claimed judgment of conviction. proof perjury had been committed at Singer initially was tried and convicted in During opening days trial. of the mo- concluding a on December hearing, reports in the appeared news Judge before Miles W. Lord.1 The quoting media the Minneapolis Chief of Po- panel, conviction was affirmed a divided Lord, Judge, lice and Judge then Chief (8th Singer, 687 F.2d 1135 United of the file contents confidential showed Cir.1982), judi but reversed on basis of father, Singer, Gilbert banc, cial misconduct this court en Unit had at perjury trial committed and had Singer, ed States v. F.2d 431 Cir. so 1983). approval. done with Meshbesher's Sim- Judge This court concluded that ilar Lord’s “fell below Plimsoll statements issued from the conduct line United appearance Then, of fairness Attorney’s Septem- fair- States office. on ness,” (footnotes omitted), id. Judge at ber Lord sent a letter to “prevented the thus defendants from hav- Judge Murphy stating my that “it has been guilt ing their or innocence determined in a experience that defense proceeding appearance of the free fatal ques- cases are much more interested in unfairness.” Id. at 432.2 answers,” Appellant’s tions than in Adden- offering testify dum at in the September Retrial was for set Singer matter. Schermer also testified at Judge days Diana E. Five Murphy.3 before hearing Sing- that between the time of trial, Attorney before the United States post-trial filing er’s conviction and his counsel, delivered Ronald I. motions, Judge Meshbesher, Lord had an ex enclosing a letter initiated materials parte meeting express possession that he stated “came into of the Schermer non-government adequacy his concern over the of the trial Minneapolis up 1. The Honorable Miles W. Lord was United Star and Tribune: "It's Judge judge States District of Min- People District see that fair trial results. case tried. nesota the time this first was He dispar- be found innocent because of a shouldn’t 371(a) September retired under 28 U.S.C. on § ity representations." Appellant’s of their Adden- 11, 1985. dum 1. 2. Defense counsel had moved 15 occasions Murphy, E. Honorable Diana during Judge trial for mistrial based on Lord’s Judge States District Min- District conduct. United States v. 710 F.2d at nesota. n. 2. court’s After this reversal con- viction, reacted, Judge quoted Lord as Schermer, Judge According resulting mental misconduct and the record. consti- urged provide ad- Judge Lord tutional violation. Eisele also found documentation to avoid Judge ditional reversal Lord had indeed initiated at appeal. parte least one prose- ex contact with the attorney, cuting and concluded that Based oh the statements conduct improper. concluded, contact was He how- Lord, Attorney’s Judge ever, Lord’s various acts of office, officials, police moved to neither prejudice Singer misconduct would enlarge the his motion basis of to dismiss they on retrial nor did demonstrate the encompass governmental the indictment to prejudice Singer required intent to to raise misconduct. He further moved for jeopardy a valid double concern. There- Murphy’s position recusal because her fore, the motion to dismiss was denied. judge in the district which Lord Finally, judge. chief he be- because Judge Eisele first considered the circum- newspaper lieved that the and statements stances under which government the re- possibility prosecution of the suborna- attorney-client ceived Meshbesher’s file. ability of chill perjury would to Immediately before or at the time of trial zealously represent Singer, Meshbesher re- found, in he employee December an quested permission the court’s to withdraw in law way Meshbesher’s office who in no Singer from the case. consented Mesh- to with government connected the or counsel, pro- as trial besher’s withdrawal any with law agency photo- enforcement repre- vided that Meshbesher continue to copied Stoll, the confidential file. Marshall him in- sent on the motion to dismiss the co-conspirator fugitive-turned- the indicted Murphy Judge granted dictment. the re- informant, obtained the no file later than quest. Eisele, Judge spring protect 1981. right against Stoll’s fifth amendment September Judge Murphy

On self- incrimination, require did not presiding herself from the Stoll to dis- recused over hearing close or from on the motion dismiss the indict- how whom he had obtained Lay Judge surrendered, ment. of this then Chief court the file. pleaded guilty, Stoll designated Judge Thomas of agreed cooperate G. Eisele4 August Singer's Arkansas to rule on motion to dismiss. Judge Eisele found further around

Hearings Judge Before Eisele 1982, Stoll, pursuant plea October agreement, met with Sergeant Johnson. Judge hearings Eisele No- conducted in Both Johnson Assistant United December, vember and and on December Attorney already suspected Schermer Findings issued oral of Fact and falsely. that Gilbert had testified Judge Conclusions of Law.5 Eisele found transcript gave Johnson Stoll a of Gilbert govern- that misconduct had occurred when testimony. confirmed Stoll ment officials the at- obtained confidential government suspicions. officials’ torney-client file, Stoll again they when copies then told Johnson that he had of prejudicial press. made statements file, result, documents from the Singer's Meshbesher As sixth amendment supply, part prove he would that could to counsel had been He violated. concluded, however, Gilbert had lied. Johnson re- violation did layed assertion not warrant dismissal of the indictment. Stoll’s and offer Scherm- Rather, repeated er. Judge Eisele fashioned Stoll later his assertion and remedies any prejudice directly Judge remove retrial to the de- offer to Schermer. Eisele Schermer, might govern- examining fendant that result from the found that Eisele, Judge findings Judge orally 4. The G. Honorable Thomas Chief Eisele entered and con- throughout hearing, incorpo- clusions of the District Court East- for the ruling Arkansas, rated them reference into the of De- sitting by designation. ern District of cember 21. fore, law, Judge mo- good govern- Eisele denied defendants’ believed faith tion to dismiss the indictment. accept and properly ment could examine file the file. Johnson thus received the Judge proceeded Eisele to fashion a rem- from Stoll. effectively he edy which concluded would insulate on retrial from the taint Eisele, law, reviewing agreed Judge Judge the constitutional violation. Eisele government properly may that the receive (1) government that: all ordered return plays confidential documents if it no role except from the file those which documents wrongful procurement and if it has their specifically represented it evi- contained they probable cause to believe constitute perjury by sub- dence Gilbert However, activity. proof Meshbesher; (2) perjury by ornation of no continued, government also con- must government knowledge attorney with scientiously obtain no more endeavor to of the contents the documents would be support representa- than documents permitted participate retrial wrongdoing. representa- tions Stoll’s case; (3) no law enforcement officer tions, found, combined with any knowledge with contents of agents’ suspicions, created documents would be to use or permit limited probable cause to examina- working mention them while on the case found, tion of the file. The attorney assigned retry however, government had made no Eisele, pro- case. did not only effort to have Stoll select the doc- continuing hibit Johnson from to work on allegation, his uments substantiated prohibit Nor he the case. did either John- actively encouraged him to over but turn testifying son or Stoll from on retrial. Thus, Judge file. Eisele the entire conclud- Judge Eisele turned then to ed, government did under- because not government had contention officials materials, only relevant take to obtain publicized procurement their of the confi- and in fact had reviewed defendant’s confi- file, suggested they dential which constitut- strategy dential files irrelevant to proof perjury by Singer ed of Gilbert crimes, allegation Stoll’s of collateral it Meshbesher, of to perjury subornation intruded, though knowingly good had disrupt Meshbesher-Singer attorney- faith, attorney-client relationship. into Singer relationship. publicity, client Such prejudice intrusion Since the threatened asserted, resulted in a of his sixth violation retrial,- had defendant representa- amendment' to effective right to violated sixth amendment of his counsel choice. representation effective of counsel. Judge found that law enforcement officials observed, nevertheless, Judge Eisele of im- prosecution involved in the the case the sixth amendment violation did not war- properly unproven leaked to the assertions Rather, rant dismissal of the indictment. press compromised potentially which Mesh- Morrison, he looked to as He besher’s effectiveness an advocate. 66 L.Ed.2d 564 S.Ct. intent to also found while there was no (1981), holds in cases of sixth which prejudice upon retrial or to inter- defendant violations, amendment “absent demonstra- attorney-client relationship, fere with the thereof, prejudice, ble or substantial threat was the effect of such leaks to threaten plainly inap- dismissal of indictment He acknowl- prejudice Singer. therefore propriate, though may even the violation edged a sixth the existence of amendment 668,101 been deliberate.” Id. Nevertheless, Judge Eisele deprivation. omitted). (footnote He at 668 reasoned rep- concluded that Meshbesher’s continued proper untenable, that under course was Morrison Singer resentation remedy to tailor a that would neutralize the compelled that he was not to withdraw. upon any possibili- threat retrial Again, relying to remove States v. Morri- remedy ty son, result that a the defendant as a concluded of the indict- governmental misconduct. There- drastic than dismissal less properly principally be tailored. He rea- Johnson testified ment could to the events passage government’s in leading of time or retrial soned that the seizure of mar- adequately Minneapolis. locale would serve ijuana a different He also testified to any potential prejudice and al- dissipate telephone analysis his shipping representation by his Singer low continued implicate records Singer offered in the permitted He counsel. therefore chosen conspiracy. extensively testified Stoll change for a Singer to move continuance or his association and to their timely declined to so venue. specific respective acts and roles in the maintained his with- move. Meshbesher cross-examination, conspiracy. On he ad- drawal. past mitted to numerous crimes and to his understanding likely that he would receive Finally, Eisele considered whether exchange a reduced sentence judicial various mis- Judge Lord’s acts of testimony. sought indict- conduct warranted dismissal of the Stoll regarding acquisi- cross-examine improp- ment. He found that Lord objec- tion of the Meshbesher file. Over parte erly initiated at least one ex tion, Stoll was to invoke fifth Sing- shortly Sehermer contact with privilege against self-incrimina- in December He con- er’s conviction tion. then moved to strike Stoll’s cluded, in view of court’s testimony. entire The motion was denied. a new trial before differ- granting action judge, judicial the taint of miscon- ent government produced evi- additional Further, relying removed. duct had been Singer’s complicity conspir- dence of DiFrancesco, on United States acy. police A Miami officer testified that (1980), 117, 101 freight arrested an air office jeopardy the double clause holds that delivering several hundred does retrial unless the conviction is not bar pounds marijuana shipment Min- evidence, Judge insufficient reversed for neapolis and Francisco. San At that time Eisele concluded that even when further Singer possessed a containing folder the earlier combined with acts of miscon- freight later invoices shown to be for mari- duct which formed the basis of this court’s juana shipments. On the folder writ- was conviction, Judge reversal of first ten of a Minneapolis an address warehouse Lord’s did not an in- conduct demonstrate later marijuana where was found. Addi- prejudice. tent Lord’s conduct tional were found in bill- invoices jeopardy thus raise a valid did not double marijuana ship- fold. of earlier gov- repeated acts of by attempting

various demonstrated and to induce her to misconduct, to exercise its su- counsel, ernmental cooperate absence of the the pervisory authority over administration dismissing erred in the district court indict justice, to dismiss the indict- of Rather, appropriate the course ment. ment. with a sixth amendment viola when faced injury the remedy I. tion is to' tailor suffered, to assure the defendant effective that indictment Singer argues subsequent pro of counsel in a assistance because be dismissed him should Callery, 774 F.2d urges apply set erroneous. Singer the standard we that Cir.1985) (district Davis, determina- court’s 1303 n. 646 F.2d at in United States out commented, finding certainly fact good is true of not “It faith was a we as to where erroneous). part gross clearly misconduct on the Never- where there is unless that be set aside prejudice need be shown.” theless, really no application Davis is of specifically found that Schermer Eisele Judge Eisele concluded point, since beside government receipt of that good faith concluded been fact had vio- the sixth that improper. has not There from was file Stoll lated. clearly finding showing this is no been v. Solo ceeding. man, Johnson first regarding Accord testified his ar- (8th Cir.1982).7 co-conspirator, rest of an indicted who was found that a sixth amend- Judge Eisele Minneapolis found at a air freight office had occurred because the violation awaiting ment the arrival of a marijuana ship- of that, and review procurement government’s comparison ment of shipping invoic- demonstrated, attorney-client file threatened to create es had attempted to present- The question at send from Miami. He retrial. also described the then, ed, subsequent his remedial order was marijuana is whether seizure of in a Min- neapolis warehouse, eliminating upon detailing packag- effective in ing and condition of the prejudice, or sub- contraband. any “demonstrable Final- retrial ly, Johnson testified to Morrison, analysis tele- threat thereof.” stantial phone records, toll demonstrated at 668-69. at telephone numerous calls had been contends that Eisele’s placed from residence and Stoll’s principally was flawed its failure order office in Miami to the residence of an ad- testifying to bar Johnson Stoll from co-conspirator mitted in Minneapolis. they privileged retrial after seen testimony Johnson’s second trial was points particularly He to their documents. considerably comprehensive less than at list,” a review of Meshbesher’s “witness Nothing the first trial. previ- that hadn’t listing 24 proposed document witnesses ously stated been was added. We are thus capsule their proposed with summaries of any way unable to discern in which John- Appellant’s Addendum testimonies. at 29- son’s testimony retrial may have been Only three the list had testified at shaped by his review the confidential trial, the first but were called at retrial. file. review Such enabled Johnson Stoll to anticipate testimony, similarly defense witness he We are unable to discern how possible purge “It not Stoll’s review of file may asserts. their have influ- testimony. enced his Appellant’s minds.” Brief at 38. On direct examina- tion, long-lived Stoll testified to his Singer, associa- specify any fails to tes- tion with origins timony familiarity that reflects with the conspiracy marijuana. to distribute He tes- disqualification file. While full of Johnson during tified period July from Stoll from participation was an to early marijuana regularly was option open to judge, the district we do not shipped from to Minneapolis. Miami At extraordinary believe this measure first, marijuana shipped, accompa- was necessary remove threat prej- nied Stoll commercial resulting udice from the sixth amendment plane. passenger enterprise theAs devel- Thus, violation. we are unable to conclude oped, marijuana shipped by air Eisele’s order remedial failed to freight, travelling Stoll and satisfy the standard set out Morrison. Minneapolis one weekly to three times do Nor we believe that on retrial the taint convey proceeds, collect and which Stoll deprivation earlier sixth amendment $50,000 ranged $200,000 testified actually persisted. We have studied the per It trip. apparent testimony record both trials and are unable to file, emanates from review of the but testimony conclude that the retrial of either experience. from by Johnson or Stoll was influenced their study of the confidential file so as to result offered additional testi- in the suffering mony documentary demonstrable evidence which prejudice. substantially Singer’s role corroborated in presses adopt 7. The National Association of Criminal Defense sel. we Amicus that a rule that a Curiae, Lawyers,- argues in brief its as Amicus in sixth amendment violation should result au- exclusionary remedy inadequate that an to tomatic dismissal of the indictment. Such a rule, protect obviously, a after defendant a violation of the sixth is untenable to effective assistance of coun- v. Morrison. find, anyone, or that we can that at a identifies Singer was arrested conspiracy. Stoll, freight possession including in Johnson or ever communi- office Miami air marijuana. At pounds of from review the anything hundred learned several cated possessed documents, numerous doc- time he that that let alone evidence such In conspiracy. him tying Singer’s uments prejudice. caused communications addition, co-conspirators testified as other specula- unsupported rests on contention Singer’s involvement. to tion, reject it. we therefore must We similarly dispose complaint that are that not convinced We therefore Murphy’s of the documents review of the Stoll’s review confiden- Johnson and rulings. her may have affected attorney-client influenced tes- tial file their point to timony. Singer has to us failed charges Singer finally preju- that he was testimony any specific or area of statement government’s because the examina- diced knowledge of the file. Our which reflects subsequent and the tion of documents study of none. Further- the record reveals suggestions perjury and subornation of more, doubtful, light of Stoll’s incul- it prevented Singer from perjury Gilbert tes- admissions, placed sig- patory with- tifying and resulted Meshbesher’s testimony.8 Finally, weight nificant on his counsel. These assertions drawal completely if to discount even we were Singer, As to without merit. Gilbert are Stoll, we believe testimony of Johnson and accusations, as they are character- baseless plain govern- the record makes pose no to by logically threat ized evi- produced additional ment substantial testimony. attorney As to the truthful reasonably jury to find dence for a withdrawal, Judge properly Eisele conclud- crimes Singer indeed committed the had representa- Meshbesher’s continued ed that charged.9 with which he Singer was not untenable. Further- ways in he Singer alleges other more, if government even officials’ state- government’s pro- prejudiced press did in Meshbesh- ments to create com- the confidential file. He curement of requiring er a conflict of interest withdraw- plains information from the documents al, appointed there is no claim that per- to numerous had been communicated ineffective assistance.10 counsel rendered sons, Attorney including the United States reject arguments. thus these We police Accepting and numerous officials. conclude that Ei We thereifore true, argument assertion as sake this inadequate remedial order was not to sele’s knowl- we fail to see how such officials’ resulting prejudice from shield Singer. In edge resulted government’s order, intrusion into the Mesh comply order to Eisele’s file, Singer was not denied besher and that participated in the none of these officials guaran effective assistance of counsel as previ- prosecutors Dakota retrial. North By so con assigned to teed the sixth amendment. ously the case. uninvolved were agent. cluding, we do not condone the conduct of replaced as case Johnson was Johnson, who, on the basis There either Schermer is no evidence testimony animosity personal to- us that was not tainted Stoll vinces 8. admitted his addition, Singer. study been ward He admitted that had a of the we observe that file. arrest, fugitive following Minneapolis- that he used testimony Strauss’ concerned the returns. He admit- aliases and failed file tax directly conspirators, impli- and did not based guilty agreed pleaded ted he had Singer. cate exposure cooperate testify avoid to a longer prison potential also ad- sentence. He government’s pos- also claims having other mitted committed numerous adversely ability affected session file crimes. germ bargain plea. Not of this for a even record, argument in the and we there- finds root Strauss, complains an also that Michael Wulff, Singleton v. it. fore need address Minneapolis Police Force who officer file, barred have been reviewed the (1976). 826 testifying. con- from Our of the record review

237 dition, party potential of claims an interested indiscrimi created substantial suspect prejudice nately sought out documents of to defendant. origin they privileged.11 to be that knew repeatedly recognized We have that only Judge We conclude Eisele’s care sixth right a defendant’s amendment to his fully shaped remedial order was inade protected. counsel of choice quate under standard set out 965, v. Agosto, States 969 Court United States v. Moni (8th Cir.), denied, 834, cert. 459 U.S. 103 son, 361, 665, 449 U.S. 101S.Ct. 66 L.Ed.2d 77, (1982); 74 L.Ed.2d 74 564, to sixth restore Cir.1978), Cox, 317, 580 F.2d protections. denied, 1075, rt. 439 U.S. 99 S.Ct. ce 851, (1979). question, L.Ed.2d 43 II. independent whether sixth Singer contends that the indictment amendment violation imposi necessitated government should be dismissed because remedy drastic of dismissal of press suggest- officials’ statements to Eisele, Judge the indictment. again rely ing per- Singer had committed Gilbert ing Morrison, on United States v. perjury suborned Meshbesher had 361, found disrupted attorney-client relationship passage either of time or the shift withdraw, to forced Meshbesher thus ing of the to a different locale would denying right his sixth amendment dissipate any derogation serve to to Mesh representation by to effective his counsel resulting integrity govern besher’s of choice. impropriety. mental There has been no

Judge showing Eisele found that law en this finding clearly errone prosecuting Costanzo, forcement officials involved ous. See United States v. unproven (3d Cir.1984), denied, leaked assertions 254-55 cert. — press, potentially -, compromised which U.S. 105 S.Ct. 87 L.Ed.2d (1985) (district Meshbesher’s effectiveness as an advocate. finding court’s that no though prejudice He concluded that even state alleged these would flow from an sixth ments were made inter without intent to amendment violation is reviewable under Meshbesher-Singer attorney- standard). fere with clearly Judge erroneous Ei- relationship, they client nonetheless were sele then Singer to move for a improper, prejudice Sing change threatened continuance aor of venue. In so er, resulting doing, Judge a sixth amendment violat remedy Eisele tailored a ion.12 do not prejudice We hesitate to add that avoid and to remove the taint of Judge Thus, press, despite Lord’s statements and the violation. the sixth Murphy, violation, his letter to also violated amendment Meshbesher was not well-recognized ethical in ad- standards and forced to withdraw as trial counsel.13 now, fact, few, very any, 11. The defendant invites us examine whether after the if attorney-client relationship an into intrusion file those documents constitute actual evidence perjury.” Appellant's violative of sixth amendment would have Addendum at 74. At taken, submitted, government ap- resulted even if the govern the time this case was propriate precaution only obtained prosecution those ment still had not initiated provided which documents evidence of Gilbert either Gilbert charges or Meshbesher on the Singer’s perjury. Judge perjury perjury. Eisele’s conclusion that or subornation of Johnson and Schermer violated consti- rights government argues tutional makes such examination unnec- that when im However, essary. emphasize permissibly we do interferes with defendant’s choice, clearly in this case failed exer- counsel of his defendant does not necessary protect plainly cise the caution to demonstrate actual to establish a See, privileged e.g., documents were immaterial sixth amendment violation. Linton v. Perini, denied, (6th Cir.1981), commission crime. 656 F.2d 207 cert. observed, argument grounds. Eisele further review- This falters on two First, ing the confidential clear a sixth amend- documents: "It is Eisele found that 238 463, Tateo, 377 U.S. 465- States v.

III. 66, 1587, 1588-89, 12 448 84 S.Ct. L.Ed.2d trial, court, Singer’s first con- after This (1964). only exception The established misconduct had Lord’s cluded is this rule where reversal of the conviction in an unfair trial. United States resulted grounded insufficiency of evi- is Cir.1982), v. 687 1135 dence, DiFrancesco, 449 banc, 431 rehearing en rev’d on 426, 433-34, 117, 130-31, 101 66 S.Ct. U.S. (1983). a new trial. We therefore ordered (1980), ruling L.Ed.2d 328 since observe, the trial We did aquittal a directed verdict of equivalent to of actual presented “by no means a case States, 437 U.S. judge.” Id. at at trial. Burks United part of the trial bias on 2141, 2149-50, 1, 16-17, 98 57 L.Ed.2d charges when S.Ct. now subsequent (1978). through the lens of the viewed 1 misconduct, Judge Lord’s it is clear that reached, no but Where verdict were motivat- improprieties at trial indeed mistrial, jeopar in the trial the double ends prejudice Singer’s pros- ed a desire to ordinarily preclude does not dy clause also purposeful mis- pects acquittal. Such Hunter, See, 336 e.g., Wade v. retrial. conduct, operated argues, should have 684, 837, 69 S.Ct. 93 L.Ed. prohibi- his retrial as violative of bar (retrial (1949) hung not does jeopardy. double concerns). implicate jeopardy double There fifth jeopardy The double clause rule, however, exception is a narrow to this protects a criminal defendant grant when the defendant moves for and is repeated same prosecution for the from on the basis of deliberate ed a mistrial Oregon Kennedy, 456 U.S. offense. prosecutorial judicial To misconduct.14 2083, 2087, L.Ed.2d permit in such of retrial a circumstance (1982). many purposes advanced supporting the interests the double fends prohibition are best jeopardy the double jeopardy bar because the misconduct com in expressed Justice Harlan’s conclusion forego pelled the defendant Jorn, 400 U.S. leading to a fair trial verdict before (1971) 557, 27 91 S.Ct. L.Ed.2d 543 Dinitz, first tribunal. United States v. opinion), promotes (plurality that the clause 600, 609-10, 1080- general interest the criminal (1976); able, all, to being “once and for conclude Jorn, 400 U.S. at 91 S.Ct. at 557. Thus, society.” his confrontation trial, Singer At his first moved for a verdict, a trial reaches a whether once judicial mistrial based on misconduct. acquittal, reprosecution is conviction or motion was denied and a conviction fol- Scott, 437 U.S. barred. United States v. Subsequently, conviction was lowed. 2187, 2193-94, 82, 91, 98 57 L.Ed.2d mis- overturned because Lord’s course, if in a Of the trial ends at trial. We therefore face this conduct appeal, guilty, is reversed verdict but general question: rule Does advanced government may prosecution. reinitiate apply, jeop- society DiFrancesco double high price indeed “It would reprosecution not ardy bar does foreclose granted immuni- pay every were accused following appellate reversal of a convic- ty punishment defect because excep- in tion? Or does narrow mistrial sufficient to reversible error constitute to a stated in Dinitz extend proceeding leading conviction.” tion situation Thus, intent the mis- need 14. What level of must motivate ment violation had occurred. we Second, interests, analysis. implicate jeopardy resort to Linton not perhaps conduct double Linton, telling, did requisite court more is the intent level and whether the dismiss indictment as result judicial not sixth amendment prosecutorial and mis- for both same conduct, violation, but reversed yet definitively questions an- are new Id. at conviction and remanded for a trial. post swered. See at 23-24.

239 proceeded petitioner’s prosecution position the earlier in and others where who judi- enjoy mistrial motion for would over defendant’s the benefit a correct deci- conviction, by 11, misconduct to a verdict the cial sion District Court.” Id. at 98 be those same only to reversed on S.Ct.

grounds? danger But there is in drawing too much percolated this issue has in dicta Indeed, While grudging exception. from Burks’ circuits,15 yet the through several it has itself, in Burks the Court stated gov- by Supreme addressed the Court.16 To be ernmental misconduct was among not impression. it is this circuit one of first grounds for implicated reversal jeopardy 15, double clause. Id. at 98 S.Ct. good argue is There reason to that a at 2149. And as Court added in Ore- defendant whose conviction over a 667, v. gon Kennedy, 456 U.S. 102 S.Ct. is timely motion for mistrial reversed be- 2083, 72 L.Ed.2d 416: “This Court has con- governmental cause of sort miscon- sistently held that Jeopardy the Double placed equal footing be duct should imposes upon no limitation Clause pow- properly whose a defendant motion is er to retry a defendant granted. The defendant mistrial obtains has persuading who succeeded in a court to judge trial only apprehends if the suffi- aside, set conviction unless the convic- ciently prejudicial misconduct. revers- tion has been reversed because of insuffici- ing, appellate simply court corrects ency 6, of the evidence.” Id. at 677 n. 102 error. The of a criminal trial court’s (citation omitted).17 at 2090 S.Ct. n. 6 If placed jeopar- not to be twice defendant supporting the bedrock interest the double dy hang court which correct- jeopardy prohibition protection is ly determines misconduct infected the Wade, right” defendant’s “valued to have 686 a ver- trial. Robinson v. F.2d at See Curtis, jury, dict rendered the first 307-08; Oregon United v. 683 F.2d v. States 674, Kennedy, 456 U.S. at 102 Supreme As the stated in S.Ct. at at 774. Court 2088; Hunter, Burks, 1, 689, v. 437 Wade v. 336 U.S. at United States U.S. 98 69 2141, 837, 1, explaining dangers 57 S.Ct. then S.Ct. L.Ed.2d when which the why jeopardy preclude prohibition double concerns re- seeks to avoid are more attenu- verdict, upon goes reversal for insufficient evi- ated when the first trial dence, hold would otherwise create a since defendant not lost his has chance “[T]o arbitrary purely acquittal distinction between jury. those the first United Head, 1200, United emerged 15. See States v. 697 F.2d conduct from situations Cir.1982), (4th denied, n. 10 1206 1132, rt. 462 U.S. Oregon verdict had not been obtained. See v. ce 3113, (1983); 667, 2083, S.Ct. Kennedy, 103 77 L.Ed.2d 1367 456 102 U.S. S.Ct. 72 Wade, 298, (5th v. Robinson 686 F.2d 305-09 (mistrial); States, L.Ed.2d 416 Lee v. United 432 Cir.1982); Curtis, 769, 23, 2141, United States v. 683 F.2d (1977) U.S. 97 S.Ct. 53 L.Ed.2d 80 (3d 1018, Cir.), denied, 772-76 cert. 459 U.S. 103 (dismissed information); on defective United 379, (1982); 74 L.Ed.2d United S.Ct. 512 States Dinitz, 600, 1075, v. States 424 U.S. 96 S.Ct. 47 122, (5th Cir.), Singleterry, v. 683 F.2d 123-24 (mistrial); Jorn, L.Ed.2d 267 United States v. denied, 1021, 387, cert. 459 U.S. S.Ct. 103 74 470, 547, (mis- 400 U.S. 91 S.Ct. 27 L.Ed.2d 543 (1982); Roberts, 518 v. trial); Tateo, 463, 377 U.S. 84 225, 227-28, Cir.) (Norris, (9th 640 F.2d 230-31 1587, (guilty plea); 12 L.Ed.2d 448 Dow- J., denied, 942, dissenting), cert. U.S. 452 101 States, 734, num v. United 372 U.S. 83 S.Ct. 3088, (1981); 69 L.Ed.2d 957 States 1033, (mistrial); (1963) Gori v. 728, Rios, Cir.1980), 637 729 cert. States, 364, 1523, 367 U.S. 81 S.Ct. 6 denied, 3054, 101 S.Ct. 69 L.Ed.2d (1961) (mistrial). L.Ed.2d 901 (1981); Opager, United 616 F.2d (5th Cir.1980). 235-36 See Petrucelli v. exception highlight- narrowness of this Smith, (W.D.N.Y.1982), F.Supp. 632-40 Florida, holding ed Court’s Tibbs v. nom, Coombe, sub Petrocelli 735 F.2d aff'd (1982), L.Ed.2d 652 Kuhlman, (2d Cir.1984); Alicea v. appellate retrial arter a state (S.D.N.Y.,1982). F.Supp. 1158-59 that, court’s reversal of a conviction while suffi- verdict, support cient to considering pre- 16. All Court cases weight of the evidence. prosecutorial judicial clusive effect of mis- Court, Id. at 124. earlier had offered. how- Singleterry, ever, clear did not make whether new persuasively argued it can Thus applies judicial pros- standard as well jeopardy not be read double clause should Kennedy impose remedy ecutorial misconduct. involved the drastic of dismissal Moreover, only prosecutorial following misconduct. the indictment reversal employed, the rationale Court “Ev- conviction on the basis of misconduct. ery part prosecutor the of a act on rational courts, recognize other we Like designed to during ‘prejudice’ a trial is the question. complicated and close a by placing judge before the defendant Curtis, See, e.g., 683 United States a leading finding of his jury evidence resolution, is not nec at 772. Its 675, 2089, guilt,” at 102 S.Ct. at would Id. essary appeal. Although we do not to this judicial seem anomalous in the context of behavior, Judge Lord’s we do not condone part Every misconduct. act on the required to it manifests the intent believe judge, obviously, designed not jeopardy double concerns. implicate defendant, prejudice the but to ensure fair- Dinitz, 600, 424 In U.S. California, 342 ness. Rochin v. U.S. See 1075, (1976), 47 the 96 S.Ct. L.Ed.2d 267 165, 171-72, 72 96 L.Ed. 183 Supreme when the double Court considered hand, On the the Court’s other reprosecution bar jeopardy clause would Jorn, frequent reference to Dinitz and judicial misconduct after dismissal due mention, breath, repeated if in its as one Dinitz, jeopardy and the double clause. In prosecutorial judicial misconduct— unopposed the defendant made an motion appear paragraph immediately both the expelled judge for a after the trial mistrial of its preceding the Court’s statement hold- impro- attorney from his the courtroom ing question a the intended —leave opening The priety in his statement. de- scope Kennedy. The fendant was retried convicted. Regardless ap- of which standard should rejected argument the Court ply, this is case we do believe a jeopardy retrial was barred the double implicates jeopardy concerns. double clause. The Court admitted that the Judge Lord’s at the first trial misconduct improper, judge’s action was but reasoned sufficiently require was objectionable to re- it level did not reflect the intent neces- versal the conviction. But even when sary retrial. was not done in to bar “[It] misconduct, post-trial it colored his does goad respondent faith in order to bad design preju- not evince the bad faith or a requesting into mistrial or to prospects acquittal dice the defendant’s 612, acquittal.” prospects his for an Id. at even in that the Court asserted Dinitz and holding 1082. In 96 S.Ct. at so Court Jorn n are prerequisite to invocation standard established in echoed the jeopardy As stated double bar. we our 470, Jorn, 91 S.Ct. review, en decision after banc (1970) (plurality opinion), whole, On it seems to us that clear judicial which also involved misconduct. court believed evidence has refined this stan- Court since guilt strong, but defendants’ Oregon Kennedy, dard. one, complicated a the case was (1982), justice might not be done if misconduct, prosecutorial involving were left to his own devices. jeopardy Court held that interests double F.2d at only giving attach when “the rise conduct persuaded our We are not to move from en for mistrial successful motion banc Lord’s conduct conclusion that provoke intended to the defendant into trial, improper, while did not demon- moving for a mistrial.” Id. at strate Id. at 432. bias.” “actual announcing 2091. In S.Ct. at this narrower standard, points acts which ar- rejected to three explicitly Court language gues illuminate Lord’s motives at “prejudice” “bad faith” and it first, meeting parte regarding acquisition ex with As- his trial: his of the confi- attorney-client in dential file. Attorney sistant United States Schermer April, the time of between outset, At the we observe that Stoll re- filing his post-trial conviction and mo- peatedly, explicitly, successfully as- tions, expressed where he his concern over right during serted his fifth amendment his record; second, adequacy of the trial testimony at the Eisele hearings and at press July his statements Judge Murphy. question retrial before 1983, after this court’s en banc reversal of Stoll, arises testimony then whether September and on conviction hearings, implicitly privi- waived it was revealed that lege. Harris, (2d In Klein v. Attorney possessed the confi- Cir.1981), the Second Circuit articulated a documents; attorney-client dential and useful test to determine whether' witness third, Judge Murphy Sep- letter has waived fifth privilege. 20,1983, criticizing tember Meshbesher and analysis, this Under trial reviewing testify. offering to These acts been court must infer waiver from a witness’ roundly by Judge condemned Eisele and we prior if: statements However, join in we his condemnation. do (1) prior the witness’ statements have they speak any not believe that with cer- significant created a likelihood that the tainty Judge during Lord’s motives trial. finder of prone fact will left with and

First, rely truth, on a distorted view the improprie- all of the demonstrated of (2) jury witness had reason to know ties were committed after the returned prior that his statements episodes involving its would be inter- conviction. preted as a waiver of press Judge and the the fifth amend- statements letter privilege against ment’s Murphy years occurred several after the self-incrimina- tion. possible trial. We not think it do divine by acts so distant time motive for part Id. 287. We believe that neither Second, the relevant trial misconduct. this test satisfied. could, even if we we believe these acts Stoll’s statements retrial created no nothing Judge demonstrate more than significant likelihood would be conviction, Lord’s concern that the left a distorted view of the truth. On clearly jus- he believed served the ends of testimony fairly contrary, his was cor- tice, not be reversed. While we have no by testimony roborated of the unindict- Judge doubt Lord overstepped eth- officers, co-conspirators police ed and the end, pursuit ical bounds in we this do not by documentary the substantial

believe it a bad motive. evinces faith physical Stoll evidence. also could not rea- Judge

We therefore conclude that Lord’s sonably prior have believed that his testi- by misconduct at was not driven the mony would be viewed as a waiver. While kind of motive would allow invocation testify hearings did at in Stoll camera jeopardy prohibition. of the double Under acquisi- regarding before Eisele case, circumstances this retrial was file, successfully tion of the confidential proper course. privilege questioned asserted the when actually

about how the documents had IV. been removed from office. Meshbesher’s prosecution possibility burglary contends that on retrial the The theft, course, right court sixth still violated his amendment to or existed. To with- by permitting grant privilege upon confrontation similar draw inquiries witness Stoll invoke the fifth amendment trial would do violence to self-incrimination, privilege expectation it by reasonable that would Stoll’s refusing testimony respected. Murphy to strike his entire once be determined privilege privilege had waived. had been invoked. Stoll not been this privilege during claimed the did not err in conclusion. cross-examina- She plea bargain government. with the fifth Although Stoll’s invocation Singer' Eisele, prevented specifically found after an privilege amendment regarding his cross-examining hearing him file was re- evidentiary from file was taken knowledge of how the office some- moved from Meshbesher’s office, Singer’s sixth amend- addition, Meshbesher’s inquiry one than Stoll. other not abro- right to ment confrontation into and terms of Stoll’s the circumstances strike refused to gated when the court goes credibility, plea agreement to Stoll’s testimony. entire Stoll’s is a issue. and therefore collateral opportunity to attack Stoll’s adequate includes to confrontation indeed, amply credibility, and demon- adverse witnesses. right to cross-examine record, substantial Texas, strated elicited Pointer Second, impeachment evidence. rights testimony arises between a direct sought a conflict of to show Stoll’s When privilege against fifth of the doc- witness’ amendment was influenced his review sixth go and the defendant’s purpose does self-incrimination uments. While confrontation, a bal- right to testimony, Sing- reliability of Stoll’s direct Black, must be Ellis ance struck. ask er’s Stoll Cir.1984); he had read documents before whether (8th Cir.1976). Gould, 216, 222 permissible inquiry effec- testifying. Such which the witness re- subject upon If the pursue means to tively provided to matters elicited testify fuses to relates endangering purpose without Stoll’s government direct examination by the protection. fifth amendment prejudicially and the defendant’s The sixth amendment confrontation ability in his assail truthful- impaired rights of a defendant are met when de- testimony, the court of the direct ness effectively fense counsel portion strike least the relevant should challenge the truthfulness of the direct tes- testimony. Hum of the timony pursue impeachment of the wit- 72, (8th Cir.1982), 75 cert. phrey, “expose jury the so as to facts ness 1230, denied, 1222, 103 75 459 U.S. S.Ct. jurors, from which as the sole triers of fact hand, (1983). if L.Ed.2d 463 On other credibility, appropriately could draw privilege pre- invocation of the the witness’ relating reliabilitiy of the inferences inquiry merely into vents the defendant’s 308, Alaska, witness.” Davis matters, credibility, collateral such 318, 94 39 347 S.Ct. has no defendant suffered (1974). Judge Murphy properly reconciled testimony need not be the witness’ other rights by permitting such conflict 656; Black, 732 F.2d at stricken. Ellis v. protecting the witness’ fifth inquiry while 1024, Brierly, 501 F.2d Thus, privilege. there no 1052, denied, Cir.), 419 1027 U.S. cert. testimony. basis to strike Stoll’s direct 631, (1974). This 95 S.Ct. balancing the effectiveness of the credibility thoroughly includes Finally, Stoll’s Thus, if the cross-examination as a whole. impeached upon More- cross-examination. has effective alterna- defendant available over, testimony remaining matters exploring tive means of relevant additional docu- witnesses and cross-examination, sixth amendment physical evidence introduced mentary and Black, rights remain intact. Ellis provided overwhelming an basis F.2d at 650. return a conviction. Violations of jury may, appro- clause confrontation retrial, here, as he asserts did case, priate be declared harmless. Schne- re- attempt cross-examine Stoll 432, 427, Florida, ble v. U.S. driv- garding acquisition of the file was (1972); Har- First, 31 L.Ed.2d Singer sought purposes. en two California, 395 rington the witness had stolen to establish that (1969). 23 L.Ed.2d negotiate file so that he could a favorable by Judge concurring), If error had been committed and initiated at least one ex Murphy prevent Singer fully parte meeting cross- prosecutor with the to ad- examining by refusing Stoll and to strike vise on how to avoid reversal of the convic- remaining testimony, Stoll’s it is harmless tion. These acts of misconduct already beyond a reasonable doubt under Fed.R. been have criticized. We reemphasize, 52(a). Crim.P. See United v. Has- such misconduct cannot be tolerated. tings, 461 U.S. 76 Judge unproven Lord also made and dam- L.Ed.2d 96 aging press. statements to the We ac- knowledge that these comments may have

V. been driven an understandable concern court, Finally, Singer urges this perjury had been committed in his because of the various demonstrated acts courtroom. But Lord had at his misconduct, governmental to exercise its disposal acceptable procedures to address supervisory authority over the administra perceived violation. by press Trial un- justice, tion of criminal to dismiss this in dermines the processes delicate carefully dictment. justice. crafted to do Judge Lord also wrote to a fellow judge on a pending ac- proceedings exposed These acts of tion. A judge letter to a fellow creates at police, prosecutorial, judicial miscon- minimum appearance substantial impro- impropriety. duct and prosecu- Police and priety. engaged tors have parte meetings ex Minneapolis Lord. The Chief Judge Lord’s misconduct at trial and af- unproven of Police offered accusations to terward caused one reversal in this case press. The office of the United States and created a serious possibility of reversal obtained, Attorney sought, and reviewed in this appeal. public second privileged documents unrelated to the dis- not be made to suffer these assaults. The covery of evidence of other crimes. We weight justice system rests condemn these actions. The respect on our process disregard States, Court warned in Berger v. United judge outcome. The trial is the corner- 78, 629, 55 S.Ct. 79 L.Ed. 1314 stone system; of this he must double-shoul- (1935): weight, der the not with action but with The Attorney rep- United States is sound restraint. He preside must strain to resentative not of an ordinary party to a with self-disciplined impartiality to achieve controversy, but a sovereignty of whose just a Judge verdict. To this cause Lord obligation govern impartially to is as shrugged, and let weight fall. compelling obligation govern as its But say weight we cannot fell on all; interest, therefore, and whose in a Singer. trials, Mark He has had two three prosecution is not that it shall appeals, and ancillary numerous hearings. case, win a justice but that shall be done. convicted, He has been twice and twice such, peculiar As he is in a and very 10-year sentenced to yet, terms. And al- * law, definite sense the servant of the *. though eight it has been nearly years since duty It is as much his to refrain from arrest, system, despite our failings its improper produce methods calculated to case, perhaps them, because of wrongful a conviction as it is to use required has him spend night one every legitimate bring means to about a prison. Singer’s guilt, The evidence of just one. however, overwhelming. is And while 88, Id. at 55 at 633. principles These proceedings these have suffered much er- apply equal with police. force to the ror, error, pertains as it Singer’s deeply

Even more distressing guilt, is beyond conviction of is harmless a Lord’s misconduct. He Supreme doubt. The reasonable Court has “assume[d] mantle of trial, an advocate” at appeals United admonished courts of to refrain C.J., 710 (Lay, F.2d at 438 supervisory authority exercise of our

244 rights “safeguards the other justice tice” of criminal administration over the prosecution essential the fair States deemed the error harmless. when 1974, 499, proceeding.” Maine v. 103 S.Ct. a criminal Moul- 461 Hastings, U.S. v. (1982). ton, We therefore follow -U.S.-, 96 477, 76 L.Ed.2d 483-84, 106 S.Ct. 88 omitted).2 (1985) (footnote directive, request It reject L.Ed.2d 481 recognized that the sixth long has been dismiss indictment. guarantee of counsel amendment’s broad of conviction. judgment We affirm right represented by be includes the of one’s choice. Glasser United counsel dissenting. Judge, BRIGHT, Circuit 457, States, 315 U.S. 62 S.Ct. 464- 65, (1942); respectfully I dissent. L.Ed. 680 United States v. 86 Cir.1982).3 965, 969 Agosto, agrees majority today ruling con- that the Government’s Eisele’s has indicated that to Court Singer’s sixth violated Mark Lewis duct violation a establish a sixth amendment represented by amendment must show criminal defendant upholds Judge choice into knowingly intruded remedy violation. The for that Eisele’s attorney-client relationship, and by permitting Sing- majority concludes that possibility” intrusion created a “realistic change a or a move for continuance er to or “benefit” to prejudice defendant venue, Judge remedy Eisele fashioned prosecution. v. Morri to re- enabled Ronald Meshbesher 665, 365, 668, son, 361, U.S. 101 S.Ct. 449 counsel, thereby re- main as (1981); L.Ed.2d 564 66 Weatherford moving and effec- 558, 837, Bursey, 429 U.S. curing the viola- tively sixth (1977). 30 See background disagree. Against I tion. Mastroianni, 749 F.2d improper highly con- of the Government’s Davis, Cir.1984); (1st United States v. duct, except Meshbesher had no choice (8th Cir.), denied, cert. my opinion In Eisele’s withdraw. 70 L.Ed.2d U.S. curative for the did not serve as a order notes, majority As estab- the circum- Under conduct. Government’s lishment of sixth amendment violation case, of this I believe stances alone, require does not dismissal remedy Singer’s in- proper dismissal a criminal defendant’s indictment. See dictment.1 Majority Opinionat 234-35. I. Morrison, 449 665, 668, L.Ed.2d provides The sixth amendment “[i]n (1981), Supreme held that “ab- Court prosecutions, the accused shall all criminal * * * prejudice, or substantial sent demonstrable right have the Assist- enjoy the thereof, the indictment” threat dismissal of his defence.” This ance of Counsel for violation proper remedy is not a for the “indispensable the fair adminis- right is jus- sixth amendment system of a criminal defendant’s of our adversarial tration exactly This is what occurred in the the circumstanc- counsel." 1. Because I believe that under present violation of case. the Government’s this case es of Singer's right to counsel re- sixth amendment indictment, quires I do not dismissal of his course the sixth amendment 3. It is of true that appeal. reach the other issues raised represented by right to be one’s Agosto, choice is absolute. — U.S.-, Moulton, v. 2. In Maine Cir.1982). (8th See F.2d 970 n. 4 (1985), Rankin, (3d United States least, very prosecutor that "at Court said case, however, 1986). type of Cir. This is not the obligation police an not to affirmative and right in which the extent of that thereby manner circumvents act in a circumscribed. protection dilutes the afforded

245-247 therefore, Meshbesher, counsel. was trial rights.4 The Court stated that cases in Singer was withdraw and forced to volving deprivations sixth amendment are of his counsel by losing the services subject injured to the rule that remedies should be Morrison, I believe injuries tailored to the suffered of choice. Under from the just- which prejudice” constitutional violation. is “demonstrable Id. 101 this I Singer’s indictment. 667. See also United ifies dismissal Solomon, 1250-51 therefore reverse. Cir. would 1982).

II. present Judge

In the case Eisele found charged

that law enforcement officials

prosecuting Singer improper, unprov- made allegations

en that Meshbesher had sub- perjury.

orned He concluded that these attorney-

statements interfered with the relationship

client between Meshbesher and prejudice Singer, threatened

thereby resulting in a sixth amendment question

violation. The then becomes what appropriate remedy

is the for this violation. found, majority’s Eisele words, passage “that either the of time or Mary Lavender, LAVENDER J.L. In- shifting of the trial to a different locale dividually, and J.L. Lavender d/b/a dissipate any derogation would serve to Company, Ap- Lavender Construction integrity resulting gov- Meshbesher’s pellees, Therefore, impropriety.” rely-

ernmental Morrison, ing Eisele FIRM, Appellant. LAW WOOD Singer to move for a continuance or a change majority approves of venue. The No. 85-1690. findings upholds Eisele’s Appeals, Court remedy, concluding that it allows Mesh- Eighth Circuit. to remain as besher trial counsel and therefore removes the taint of the Submitted Nov. disagree. sixth amendment violation. I Decided March did impropriety” “governmental “Meshbesher’s disparage simply than more allegations I believe

integrity.” Mesh- officers that by Government

made prosecu- perjury, suborned

besher disrupt- prosecution, threats tors’ veiled repre- zealously ability to Meshbesher’s ed a situation created Singer,- and sent Meshbesher placed on taint might wash off conduct

the Government’s which Meshbesher in a trial in pattern recurring important It is to note that in Morrison the did "not reveal a violations per by investigative might Court did not create a se rule warrant officers a defendant’s indict- remedy the dismissal of imposition of a more extreme in order ment for a violation of his sixth amendment to deter further lawlessness.” 449 U.S. at 365- rights. merely The Court stated that there had n. 2. I believe that the 66 n. appropriate showing prejudice to to be an precisely present actu- case contains the kind of warrant dismissal of a indictment. recurring prejudice al violations that re- In Morrison the Court no stated that quire dismissal of indictment. record been demonstrated and noted the Notes government from prevent concern to ments, entries, bookkeeping and the names retrying Singer. co-conspirators were in found written Judge Murphy Retrial Before Singer’s personal calendar book. un- Two co-conspirators plea indicted who entered Judge Murphy The case returned to was agreements they testified that met had for or- retrial. Pursuant to Eisele’s Singer in connection with the conspiracy der, Attorneys two Assistant United States Dakota, by phone and had been directed him from the District North who pick up marijuana shipments from Miami case, prior had no involvement in the were in freight Minneapolis. an air office Testi- prosecute. assigned to Johnson re- mony receipts offered and placed agent, also was sales although case contin- as showing produced Singer pur- that preparation had ued to assist of the ease. tools, baling Singer represented by package coun- chased used to mari- appointed juana shipment. sel. trial, Singer that, disqualify Singer produced Before moved to evidence a law- yer, legitimate legal serving Johnson and Stoll from as witness- he had done work grounds they es on co-conspirators, were familiar that he had been unwittingly by improperly of the drawn them into the con- contents obtained trial, testify. spiracy. file. The motion was denied. Gilbert did not At trial, procurement and review government’s jury re- eight-day an After Singer was file guilty. attorney-client re- verdict confidential turned five to two consecutive terms sentenced of his sixth amendment in a denial sulted years. imprisonment, a total of ten years’ counsel that assistance of to effective appeal This followed. failed order Judge Eisele’s remedial Issues cure. on five Singer challenges his conviction the indictment argues He grounds. To establish a sixth amendment because against him be dismissed should violation, a criminal defendant must show review procurement and government’s first, things: two re- attorney-client file confidential attorney-client intruded into the knowingly his sixth amendment in a denial of sulted second, relationship; and that the intrusion assistance counsel right to effective defendant, prejudiced demonstrably order failed Judge Eisele’s remedial Bursey, Weatherford govern- He further asserts cure. (1976); S.Ct. 51 L.Ed.2d 30 sug- press ment officials’ statements Davis, knowingly ob- gesting Meshbesher Cir.), denied, 454 cert. perjured testimony Gilbert tained attorney-client (1981), rela- 70 L.Ed.2d 170 or created a Singer disrupted the tionship and Meshbesher’s with- forced of prejudice. threat See Unit substantial drawal, sixth denying thus Morrison, ed 449 U.S. at States representa- right to effective amendment of a S.Ct. at 668-69.6 Identification sixth addition, by his of choice. In alone, violation does argues that the fifth amendment require dismissal of the indictment. protection jeopardy double supporting the sixth amend interests his first convic- his retrial because barred right, meant to fairness ment assure judicial as a result of tion was reversed see, adversary process, Gideon v. which, subsequent proceedings misconduct 335, 344, 83 Wainwright, 372 U.S. revealed, preju- an was driven intent (1963), must He also contends that the dice his defense. society’s competing reconciled with interest right to violated his sixth amendment court prosecuting criminal conduct. refusing to strike Stoll’s confrontation Morrison, Court testimony invoked the fifth amend- after he despite the government’s deliber held privilege against self-incrimination ment ate of defendant’s sixth amend violation Finally, response to cross-examination. court, rights, by disparaging her choice of urges of the ment because

Case Details

Case Name: United States v. Mark Lewis Singer

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 26, 1986

Citation: 785 F.2d 228

Docket Number: 84-5156

Court Abbreviation: 8th Cir.