United States v. Morrison, Hazel

merely might because there be some over-

lap. singled A union should not be out in a

manner that deny opportu- it all the

nities for defense afforded other noncom-

petitor participants boycotts. in similar In-

deed, myself agreement I find with Pro-

fessor Handler’s view that an automatic

finding of liability antitrust after a deter- activity

mination that union nonexempt per

“would be a approach se with a ven-

geance.” Handler, Labor and Antitrust: A History,

Bit of 40 Antitrust L.J.

(1971). Moreover, some consideration given

should be to the other defendants’

contentions that the restraint was forced

upon through them pressure union and not

through any desire of their own.

Perhaps none of the defendants can satis-

fy the rule analysis, of reason it is

premature on this record to decide whether

the restraint violates the antitrust laws.

That determination initially must be made

by the district reviewing court after all

relevant A considerations. shortcut is not

appropriate in this case. Accordingly, I

would remand to the district court with

dirеctions that exemption if the labor is not applicable,

found to be the rule of reason applied

should be to the antitrust claims. America, Appellee,

UNITED STATES of

MORRISON, Hazel, Appellant.

No. 78-2258.

United States Court of Appeals,

Third Circuit.

Argued Feb. 1979. May

Decided 1979.

Rehearing Rehearing En Banc July 10,

Denied 1979. July Amended agents case shows that record Agency Drug effected Enforcement unjustified interference with willful and right

Mrs. Morrison’s sixth that both of counsel.2 We conclude counts (argued), Salvatore J. Cucinotta Philadel- against Morrison should be phia, Pa., appellant. prejudice. dismissed with (argued), William E. Asst. U. Ball S. Vaira, Atty., Atty., Peter F. U. Walter S. S. I. Jr., Batty, Brigance Leadbetter, Bonnie Pa., Philadelphia, Asst. U. Attys., S. Cucinotta, May On Salvatore appellee. lawyer, Morrison’s with Assistant met U.S. agent D.E.A. Den-

Attorney Riley Jack WEIS, Before HUNTER Circuit engaging in Malloy purpоse nis of MARKEY, Judges, and Chief Judge, of the pre-trial negotiations. At least from that Appeals.* Court of Customs and Patent date, knew that Mrs. Mor- represented by

rison was counsel. Subse- quently, agent Malloy by was contacted an- THE OPINION OF COURT Stephen Hopson. other agent, Hop- D.E.A. HUNTER, III, Judge: investigation JAMES Circuit son engaged dealer, gain heroin Mrs. Mor- and wished On June the Appellant, Hazel cooperation investigation. rison’s in that Morrison, on was indicted two counts of Hopson Malloy was aware that wanted to illegally distributing heroin in violation of Morrison, negotiate with Mrs. and knew 841(a)(1) (1976). trial, U.S.C. Prior § Hopson coopera- to “solicit wished she filed a Motion Dismiss the Indict- against tion.” the case Malloy discussed ment Prejudice, with alleging denial of her Hopson, “generally” Morrison sixth and fourteenth amendment Hopson was allowed to examine the file on effective assistance counsel and her four- Hopson trial. pending also had teenth amendment to a fair trial. “two or with Assistant three” conversations The motion to dismiss was heard in the Attorney Riley in which Morrison’s United States District Court for the East- “name up”. came ern Pennsylvania District of and was denied opinion. Immediately 23, 1978, August after the an- On agents Hop- nouncement of the district court’s son Bradley and James visited defendant’s motion, denying the Morrison knowledge entered an home with neither the nor open conditional plea guilty permission to one count of her counsel. At time of distribution.1 was subsequently Hopson questioned She sen- Morrison about the Mrs. tenced years imprisonment, to five period prior with a source of her heroin special parole years arrest; term of three to follow. to her that she fac- * Markey, Judge Honorable Howard T. appeal, Chief ment. On we are not free to canvass the United States Court of Customs and findings Patent the record fact. and make our own C., Appeals, Washington, sitting designa- D. However, accepting all factual statements over tion. dispute, adopting plead- which there is no ings taking submitted guilty plea contingent upon appeal 1. The testimony at face who value the ruling of the district court’s to this Court. witnesses, government’s were the we still find approved guilty plea the use of the conditional pattern impermissible conduct Zudick, in United States v. 523 F.2d 848 emerges. any it should be borne in event 1975), Moskow, and United Stаtes v. appeal dispute mind that does not turn appeal F.2d 882 and find the conduct, characterize so much on how we properly be before us now. justified ordering as on whether we are any findings 2. The district did not court make requested by defendant. relief of fact or draw conclusions of law when it denied Morrison’s motion to dismiss the indict- term;3 ing jail a stiff that he II. observed could make recommendations the U.S. government presents two us with Attorney as to whether she should receive which questions threshold must answer- sentence; heavy and told her lenient advisability ed before cоnsider government’s protection plan about the extraordinary granting such relief as dis- Hopson questioned informers. also Mrs. First, missal of the indictment. it contends money Morrison about how much she was precluded by that are Weatherford v. Mr. pay to Cucinotta. He then stated that Bursey, 429 51 97 S.Ct. work, sug- he seen her counsel’s granting any L.Ed.2d relief gested ‍‌‌​​​‌‌‌​​​​​​​‌​‌‌​​​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​​​‌‌‍to Mrs. she a Second, that, Morrison that retain at all. even there it claims if public violation, defender also urged instead. He has a been dis- permissible to of public obtain services of a if missal the indictment is not defender remedy. coоperate she wished to with the D.E.A.

Finally, he that should think she The government reads Weatherford quality representation about the that, holding as in the of absence demon money she would for the receive amount of prejudice, no sixth vio strable ($200) that she paying attorney was Cuci- disagree. lation occurs. Weather- Upon departing, gave notta. he defendant ford, de was asked to telephone his number. presence of termine whether an under police strategy meeting cover at a officer immediately Mrs. Morrison called attor- between a his counsel ney Cucinotta, who to went her home. amounted The to a violation. constitutional there, he While Morrison called police officer, in fact invited when given number she plans had been and made defendant, exclusively pur attended agent Hopson to meet between noon and pose preserving identity his undercover m. p. day. However, 1:00 of the next anything that he had and did not relate day Hopson next did not arrive as sched- meeting. during heard the course of uled, appeared warning at The Fourth Circuit Appeals Court of p. about 6:00 m. The defendant told him concluded that “whenever company she had speak, and couldn’t knowingly arranges permits intrusion and that in event she her law- wanted attorney-client into the yer present. departed. day Hopson One sufficiently right endangered to counsel is yet later Mrs. Morrison received another Bur require to and a new trial.” reversal surprise agent Hopson. visit from Accord- Weatherford, (4th sey 528 F.2d ing Hopson’s testimony repeated reversed, 1975). Supreme Court The statements he had made his first reasoning every intrusion into the that not visit. attorney-client relationship is a violation of government “readily The concedes that counsel, agents attempting erred in to elicit rejected per Circuit’s se test. Fourth cooperation working of Morrison without The Court’s narrow one. through attorney.” facts, On these being only “[tjhere Court held no are confronted the proverbial with neither tainted evidence communica blunder, constable’s overzealousness prosecution, strategy tion of defense pursuit en- legitimate otherwise law purposeful and no intrusion Weather- Rather, pattern forcement ends. ford, we have there was no violation the sixth upon conduct calculated to intrude amendment.” at S.Ct. at destroy relationship. holding 845. This is not broad enough to jail”. going agents Mrs. Morrison testified that ass [was] testified judge they specifics warned her that the trial in her did not recall the of this courts”, the “worst SOB in the federal that he conversation. people”, “goddamn “hates black and that her

support wrongfully that the This test interpretation motivated or in- urges us, namely adequately justified entirely ment upon that mere fail- interference gain ure consistent rationale Weather- advantage or tactical evidence ford, purpose any finding from an which itself identified as intrusion bars factor to in the be considered context amendment violation. Indeed, challenged eavesdropping. since in the applies, eavesdrop- Weatherford police Weatherford officer intruded context, ping preju- when there is both no necessary that it was extent dice to defendant’s case and no wrongly meetings at physically present defense motivated the attorney-client intrusion into preserve cover, intrusion was neither relationship. This leaves untouched a vast wrongly adequate nor without motivated range of conduct which does constitute a justification, upheld have been and would recognizable to effec- Accordingly, under the we con- Via test.6 tive assistance of counsel.4 In the case of a clude us that does not bar Weatherford deliberate attempt actually to sever or oth- finding from on the facts before a violation erwise to interfere the attorney-client us. relationship, a more explicitly much intru- offense, sive analysis proceed must government dif- The next advances ferently. Here, appropriate it is to consider a sixth contention that even if we find the purpose propriety agent’s violation, we are limited to or conduct and its dering effect or suppression either of evidence rights attorney-client and the relationship.5 argues new that government trial. The ap had cause to consider this issue in Via v. since neither of orders would be these Cliff, (3d 1972). There, case, 470 propriate precluded F.2d 271 Cir. we are this prison readily officials were accused wrongfully granting from at all. We any relief preventing attorney an cоntacting agree from new trial are fre suppression that prisoner-client during period quently forms relief appropriate immedi- ately before govern trial. We advanced The the test amendment violations. that, previous interference was either ment of our has cited a number “[if] wrongly motivated or adequate jus- without decisions relief was ordered. wherein such tification, infringement However, suggests an none cases even of those [it constitutes] constitutional two forms of relief Id. novel rule that these [the] counsel.”. at 275. principle are There is no ad- exclusive.7 Indeed, applied narrowly inaptness examples Weatherford 7. Two even demonstrate eavesdropping government’s authority in the proposition context. In United States Levy, (3d 1978), v. 577 F.2d 200 Cir. we found which it has been cited. attorney-client that mere disclosure of confi- Cobbs, (3d In United States v. 481 F.2d 196 prejudice dences constituted under the Weath- Cir.), denied, 980, 298, 38 cert. 414 U.S. 94 S.Ct. test, regard erford to whether there (1973), L.Ed.2d 224 we held that custodial in any prejudicial on the effect outcome of terrogation per in the absence of counsel was the trial. freely missible if had the defеndant and intelli gently present. waived his have counsel exactly 5. This is what was done in Gallarelli v. requested Defendant that evidence States, 1402, (3d 441 F.2d 1405 Cir. gathered interrogation be held inad 1971). There, we reversed a missible, conviction based but we had need to reach that guilty plea negotiated on a in the absence of issue. plea counsel. We held that “a Crook, entered without (3d v. 502 F.2d 1378 United States guidance such be set must aside without denied, 1123, in- 1974), Cir. cert. 95 S.Ct. quiry whether demonstrable harm resulted in 42 L.Ed.2d 823 we were confronted question.” the case in suppression with a lower court’s confes knоwing sion made after a waiver of defend Supreme 6. As the rights, noted in reference ant’s where the Miranda court found police justification, cases, police officer’s ‍‌‌​​​‌‌‌​​​​​​​‌​‌‌​​​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​​​‌‌‍“Our' knew that officers however, recognized represented have the unfortunate ne- counsel in an unrelated cessity holding of undercover work.” 429 U.S. at Our narrow the court 97 suppress S.Ct. at 844. could not a confession made in full

533 remedy through which would duct is not amenable vanced suppression of conviction. or reversal power limit our the indictment dismiss appear should such a warranted. deterrent What is whether dis- remains for decision appropriate missal of the indictment Cliff, purposeful In Via v. we found this case. The the circumstances of interference with the rela- agents’ actions ment has conceded that tionship claim made out a colorable to relief error, the admitted urges were but request was no under 1983. There § essentially harmless. error was relief the nature of of an indict- dismissal appreciate fails to apparently ment that case. In Gallarelli v. United the sixth amendment. States, 1971), 441 F.2d 1402 said, to have the “[RJight Court has assist- guidance found of counsel ance of fundamental and ab- counsel is too plea critical bargaining was so that a coun- indulge nice solute to allow courts bargain (i. negotiated during sel-less e. one amount of calculations as to the period a brief when defendant was “be- arising from Glasser v. United its denial.” attorneys) tween” accepted. could States, 457, 467, S.Ct. There, we vacated the conviction that was (1942). L.Ed. the actual based on the guilty plea. question conduct, effect, motivation, its its intended appropriate whether dismissal was an reme- pointed readily are its intrusiveness However, dy never arose. in United States defendant, apparent. Alone Levy, 577 F.2d 200 represent- she was knowledge that it an necessary found to dismiss by counsel, ed agents the attacked D.E.A. remedy as the for a amendment sixth viola- competence the of her law- dedication and tion. In that case a D.E.A. informer sat in yer attempted and raise doubts in her meetings on between defendant and his They repre- mind about his effectiveness. counsel and defense strategy disclosed the having sented themselves influence with as prosecution Becаuse an officers. at- coercing the means of as a de- tempt to assess to the the defend- abandoning fendant into counsel and best, ant would have at speculative been we her defense. disclosure, held that the mere intrusion and undermining The deliberate of constitu- more, to make was sufficient out a rights tional must not be countenanced. light amendment violation. of the when, here, This is as the particularly so fact that no would remedy other relief matter will of the come to attention violation, considering the and extent and courts only importuning when the оf the improper seriousness of conduct government agents unsuccessful. There is only appropriate found is, therefore, danger real courts relief for the violation to dismissal of the unwitting themselves in- become indictment. strumentality through which agents may with interfere basic constitu- III. rights. tional pattern. The case us fits this before We have attempt found a deliberate Gallarelli, Under test in and Via destroy and challenged represents conduct an to subvert the defendant’s to effective “inadequately justified” a thoroughly Ac- assistance of and a fair trial. counsеl unjustified wrongly motivated interfer reversed, will be cordingly, judgment relationship, ence with the attorney-client aside, the sentence set and the case will be and constitutes a of the defend violation for will be the district court remanded to dismissing ant’s sixth to effective entry both counts an order Levy prejudice. in assistance of counsel. As the con- indictment with Miranda, violation, compliance provide an are free to because of what tutional appropriate remedy. police what found to be conduct. Crook is silent as to “unethical” remedy tоday, should be. before us find an actual consti- the contours of that SEITZ, seriously flawed, Judge, ALDI- believe to be in both Chief anal- Before GIBBONS, ROSENN, ADAMS, ysis and result. SERT, WEIS, HUNTER, and HIGGIN- GARTH I BOTHAM, Judges. Circuit Morrison, the defendant-appellant,

Hazel 28,1978 indicted two on June counts REHEARING SUR PETITION FOR illegally distributing in heroin III, HUNTER, Judge. Circuit JAMES 841(a)(1). 31, 1978, May of 21 U.S.C. On § rehearing Appel- Cucinotta, petition for filed attorney, Morrison’s Salvatore above been having lee in the entitled case met with an Assistant United Attor- to the in' judges participated who ney Malloy, agent submitted and with an Dennis (D.E.A.), the decision this court and to all Drug Agency Enforcement judges other available of the circuit pretrial negotia- circuit purposes engaging service, Therefore, regular judge active who at May tions. least from having on, in the concurred asked knew that Morri- rehearing, majority and a circuit represented by son was counsel. On Au- judges regular the circuit ser- 23, 1978, active gust agents Stephen Hop- having rehearing by vice not voted for Bradley son and James visited Morrison’s banc, court in petition permission knowledge home without the separate opinion denied. A Denial of Sur According of her counsel.1 Rehearing being Petition for filed opiniоn, at Garth, joined Judge by Judge Adams and Hopson questioned Mrs. Morrison about Judge Rosenn. source heroin period of her arrest;

prior to her that she GARTH, term;3 Judge, facing jail Circuit dissenting from a stiff observed Mrs. Morrison testified that denying Order Petition for Rehearing: judge trial warned her that the case was grant government’s petition vote to courts”, the federal the “worst SOB in that he people”, “goddamn view, and “hates black that my banc. the jail”. going to ass The testified [was] panel opinion, which now the will become they specifics recall that did not the of this circuit, law of illogical this hаs reached an conversation. result —a result which bears no he could make recommendations to panel evil which properly the has Attorney the U.S. as to whether she government condemned. this case a heavy should receive lenient or sen- agents sought to with rela- interfere tence; and told about tionship a between criminal and defendant protection plan for ment’s informers. However, despite her counsel. an acknowl- Hopson questioned also Mrs. Morrison edged absence of to the defend- money pay about how much she to ant, panel a finding He Mr. Cucinotta. then stated that he violation has ordered that work, suggest- had seen her counsel’s indictment with- dismissed —a sanction to ed Mrs. Morrison that she retain a precedent out in this or other circuits. urged also public defender instead. He

Inasmuch as under operating public this circuit’s her to obtain services procedures, only cooperate in banc over- court wished to with defender if she ride panel’s published opinion (Internal Finally, the D.E.A. he Operating p. Procedure I voted have quality she should think about the pan- court banc reconsider representation to she receive would el’s this case —a money ($200) decision ‍‌‌​​​‌‌‌​​​​​​​‌​‌‌​​​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​​​‌‌‍which amount of she was visit, Malloy Hopson spoken Hopson, Prior to this with with discussed Morrison’s case Malloy concerning Hopson Hopson Morrison. was in- had certain discussions with an dealer, vestigating gain Attorney a heroin wished Assistant which Mor- cooperation investigation. Morrison’s in that rison’s name was mentioned. depart- Upon II attorney paying Cucinotta. telephone

ing, gave he made no excuse There can be number. agents in improper conduct strenuоusly Nonetheless, I most encounter, Morrison by this Undaunted result of analysis and the disagree with the came attorney, who immediately called her panel logic of panel opinion. The Mor- presence, her home. In Cucinotta’s scrutiny. Ap- bear simply will given her telephone rison called the number think panel cannot parently because attempt in at by Hopson. Apparently to correlate appropriate an sanction agents, the D.E.A. verify the misconduct of inexcusable, con- nonprejudicial, albeit Hopson meet between plans she made case, has government duct of Hop- day. the next p.m. noon and 1:00 extreme sanction impose decided time, son did not arrive at scheduled infirmity in dismissing the indictment. however, p.m. 6:00 He but came instead at com- opinion is reasoning by Morrison departed upon being informed by the result. Dismissal pounded speak, and could not company that she had any prej- absence of despite the her attor- that in event she wanted the misconduct udice to the defendant August ney present. day, The next unjusti- completely visit from Morrison received another fied. According Hopson’s testimony Hopson. A he had made repeated the statements Court, in Weatherford during his first visit. Bursey, 429 S.Ct. trial, Motion to Prior to Morrison filed a all inva- L.Ed.2d 30 held that not Prejudice, Dismiss the Indictment with relationship by sions of the alleging fourteenth denial of her sixth and to a government agents give rise amendment to effective assistance of In that sixth amendment violation. counsel and her fourteenth defendant, sued Bursey, criminal was de- to a fair trial. This motion informant, un- Weatherford, opinion by the district court. nied alia, 1983, alleging, inter der 42 U.S.C. § thereafter, Immediately appearing with her Bursey’s violated that Weatherford had Cucinotta, Morri- attorney same Salvatore attending two rights by plea guilty son entered a conditional attorney. Bursey and his meetings with sen- one count of distribution. She was intru- that such an Rejecting argument years imprisonment, five followed tenced to of the sixth per sion was a se violation special years. parole term of three On amendment, reasoned court appeal, panel this court reversed the “[tjhere being tainted evidence no judgment remanded to the of sentence and strategy case, of defense no communication to the district court with an order dismiss intru- prosecution, purposeful to the and no Weatherford, the prejudice indictment with because was no violation by sion there ..” 429 government . had interfered with Morrison’s Sixth Amendment 845.2 U.S. at 97 S.Ct. at right to counsel! Although defendant(s).” Cliff, the 470 F.2d at 275. 271 Via v. 470 F.2d prisoner “can main- prisoner the court stated that the this court held that a could maintain alleging or damages against tain this cause of action an action under § 1983 by proving prejudice prison prison- at trial the to his defense officials for interference with the id., appar- alleged infringemеnts,” it was actual er’s to counsel while he was confined prison county prison awaiting ent from the facts that the officials trial. The court stated engaged purposeful prove conduct prisoner in the sort that if the “can that the interfer- suggested in Weatherford wrongfully the ence was either motivated or with- Bursey, supra, adequate justification would constitute v. out and involved the de- in Via v. Cliff fendants), The court infringe- amendment violation. he will have established an pris- damages expressed the by to the no view as ment of his constitutional to counsel by government The test formulated in Weatherford v. be made use if a new Bursey, supra, applied by was this court trial Id. were ordered. Levy, v. 577 F.2d is a I will Although question, close 1977). Levy appeal involved a direct assume that the conduct of D.E.A. a judgment of which the sentence in de- sufficiently “purposeful” in this

fendant, Levy, conviction attacked his on case rise to give a sixth ground government informant, that a violation under standards established co-defendant, posing as a had violated the Bursey, supra. But con- Weatherford privileged relationship Levy between cluding constitutional violation oc- that a attorney and had disclosed confidential way panel’s in no curred should lead to strategy government personnel. defense holding be indictment must dis- held, prejudice this court to the defend- indicates, Levy opinion missed. As the dis- presumed ant be in such a case: appropriate missal of the indictment knowing Where there is a invasion of when the harm to the defendant cannot attorney-client effectively by cured means. less drastic where confidential information is dis- contrast, present This by does not closed to the we think that prejudice situation where the defеndant there are overwhelming considerations ways. cannot be In- remedied in alternate militating against a standard which tests deed, presents where situation by weigh- showing there has been whatsoever ing prejudicial how defense the by prejudiced the defendant has been disclosure is. government’s misconduct. There is no

claim com- that confidential munications were revealed to the inquiry think into ment as a result conduct stop must point at the where attorney- agents. any claim that Nor is there client actually confidences are disclosed attorney Morrison’s confidence agencies enforcement conduct, by governmental undermined responsible investigating prose- guilty plea that her it. induced cuting Inexplicably, turns the at 208-09. F.2d head; Levy rationale it reasons its holding This is fully consistent with preju- was not because the defendant Bursey, supra, Weatherford v. which indi- diced, of the indictment is the dismissal cates that the sixth amendment will be remedy.3 analysis available This is funda- violated whenever there is “communication Pe- mentally flawed. As the Government’s strategy defense Rehearing acutely points tition for In Banc . . . .” 429 at “ S.Ct. at 845. out, analysis panеl’s . . . reduces Concluding that a following sequitur: sixth amendment viola- non Since occurred, tion Levy reprehensible, agents’ court determined conduct was [D.E.A.] relief; that dismissal of granted the indictment was the some defendant must be only appropriate remedy sup- because infor- and since was no disclosure there mation revealed press re-try, proper.” infor- or trial to dismissal mant part public addition, panel opinion sig- had become works a domain. 577 F.2d at 210. safeguards public No contrived interest because nificant harm could assure that the information would nоt criminal defendants ‍‌‌​​​‌‌‌​​​​​​​‌​‌‌​​​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​​​‌‌‍immunizes Thus, might panel’s oner recover. n.3. United Id. at 275 even 3. The reliance on v. Glasser 457, States,

if Morrison has established a 86 L.Ed. 680 S.Ct. (1942), Glasser, misplaced. violation within the set forth in the court or- standards Via is Cliff, upon v. cannot be relied dered a new trial because of a violation support rights. the dismissal of The in- the indictment dictment was dismissed. though government longstanding widespread even mis- or continuous conduct has caused them no harm.4 official misconduct.

Indeed, decision, panel’s as a result of the finding defendant himself in this situation may only While these not be the conceiv- by prejudice be better alleging off able circumstances in which by than claiming he was harmed dismissal, uphold empha- ... government’s misconduct. In the latter here, Fields, emphasized size as was in case, may granted be a new trial or if he that, espe- that the sanction is so drastic pled has guilty, plea may be vacated. cially where serious criminal conduct is But if he proving succeeds in the absence of involved, truly it must be reserved prejudice, indictment, panel’s under the extreme cases. opinion, will be dismissed. 594 F.2d at 351. See Owen, (9th 1978). 580 F.2d 365 Cir. B in Brow- set forth the standards Under Even reasoning panel opin if the an obvi- ard, is of the indictment dismissal sound, is, ion were which I do not believe it ously improper remedy in this case. There the result requiring dismissal indict made, be, has been no claim nor could there utterly ment is inappropriate in this case. I by the prejudiced that Morrison was agree analysis with the Judge Feinberg misconduct, government’s type or that this Broward, United States v. 594 F.2d 345 routine, widespread, of misconduct is con- 1979), denied,-U.S.-, cert. stant or remedial nor continuous. Neither S.Ct. 61 L.Ed.2d 310 as to support deterrence rationales the extraordi- when dismissal ap of an indictment is an nary imposed by panel. sanction propriate remedy. In that the district consequence, punished public court had determined that offi government agent misconduct even cials inserted false materials into an arrest though that misconduct did no harm to the warrant and had Consequent lied in court. defendant. ly, the district court dismissed the indict ment. appeals reversed, The court of rul Ill ing that “dismissal of the indictment was which, conceding This an inappropriate response.” 594 F.2d at alleged misconduct of the 351. Judge Feinberg reasoned as follows: her defendant did not sever Fields, In United States v. 592 F.2d 638 with her learned аttorney; - denied, [cert. her; nothing from its interview -, 99 S.Ct. 61 L.Ed.2d 284 retained, attorney, still did no whom she (1979),] Judge pointed Timbers out for entering plea more her in than assist upheld court that we have the dis Thus, guilty. simply there exists no rela- missal of an very lim imposed tionship between the sanction ited and extreme circumstances. In such injury which it redresses. cases, there was a need either to elimi ‍‌‌​​​‌‌‌​​​​​​​‌​‌‌​​​‌‌‌‌​‌‌​​‌​​​​‌​​‌​‌‌​​​‌‌‍ nate to a a crimi government’s petition prosecution, nal impossible where it was filing panel opin- which followed the to do by imposition sanctions, so of lesser my ion reinforces view that this casе de- pattern or to deter a of demonstrated and I therefore serves in banc consideration. necessarily course, It (1971). is not the case that the S.Ct. 29 L.Ed.2d 559 Of go entirely remedy preclude sup- ment misconduct must unremedied such a civil would not agents may subject pression this case. The D.E.A. be in a criminal trial of information departmental disciplinary gleaned by government’s measures. More- of a de- over, they may subject rights. in a suit civil It is for fendant’s action Morrison under the rationale of disagree these reasons as well that Agents Bivens v. Six Unknown Named panel opinion. rationale of the Narcotics, Federal Bureau of grant petition vote to dissent

from the court’s order which denies it.

Judge joins in ROSENN this dissent.

Judge also votes ADAMS

banc, he believes because in view of

the position in Brow- Second Circuit sufficiently

ard the issue case is

important to warrant the attention of the

full Court. This would particularly seem

so, observes, since the Broward brought attention of

before its was filed. MART,

MAJOR’S FURNITURE INC. CORPORATION, INC.,

CASTLE CREDIT Company,

Canter Consumer Discount Inc., Company, Robert’s Furniture

Appeal of CASTLE CREDIT

CORPORATION, INC.

No. 78-1912. Appeals,

Third Circuit.

Submitted Under Third Circuit Rule

12(6) Jan. 1979.

Decided June

Case Details

Case Name: United States v. Morrison, Hazel

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 16, 1979

Citation: 602 F.2d 529

Docket Number: 78-2258

Court Abbreviation: 3rd Cir.