UNITED STATES COURTS OF APPEALS
CASES
Lee v. United States,
322 F.2d 770 (5th Cir.
1963)
Use of oral admissions was a
violation of due process. where government agents appeared at defendant's cell without
notice and conducted a secret interrogation of him after he had been indicted and while
he was awaiting trial. Prisoner's failure to request an attorney, if he did so fail, was not an
excuse for government's conduct.
Ricks v. United States,
334 F.2d 964 (D.C.Cir.
1964)
Statements obtained after witness
had positively identified defendant and before he was taken before magistrate, and
statements taken by police while defendant was imprisoned pending determination of
probable cause, his hearing having been continued so that he might obtain counsel, were
inadmissible.
Clifton v. United States,
341 F.2d 649 (5th
Cir. 1965)
Failure of federal agents who
should have known that 19-year-old accused, incarcerated for over two months, was
represented by counsel, to make reasonable effort to ascertain whether defendant desired
to consult with attorney before making statements was denial of Sixth Amendment right
to counsel and any incriminating statement made at interview could not be admitted at his
trial.
United States v. Slaughter,
366 F.2d 833 (4th Cir.
1966)
Where defendant's expressed
desire for counsel was followed by taking, at instance of F.B.I. agents, of incriminatory
statements, preceded by a recitation of defendant's formal rights, which occurred after
expression of defendant's desire for counsel but before counsel had been obtained,
defendant was denied right to counsel, and admission of testimony concerning what
defendant said in response to interrogation after he claimed right to counsel was
reversible error.
United States ex rel. Hill v. Pinto,
394 F.2d 470
(3rd Cir. 1968)
Record of state court
prosecution which contained no hearing on waiver of right to object to admission of
allegedly unconstitutionally obtained statements not alone sufficient to justify finding in
federal habeas that waiver had been deliberately made as matter of trial strategy, and
evidentiary hearing was required on such question.
Worts v. Dutton,
395 F.2d 341 (5th Cir.
1968)
Defendant deprived of important Sixth
Amendment right when court-appointed counsel was not present at sentencing of
defendant to two consecutive terms of imprisonment on conviction of two robberies in
single trial, and sentences were required to be vacated with provision that state be given
right to resentence prisoner after he is afforded counsel.
Pryor v. Henderson,
403 F.2d 46 (6th Cir. 1968), cert. denied,
396 U.S. 847 (1969)
Findings that defendant was under indictment for rape when he made incriminating
statement to detective in apartment, that the detective deliberately, though not
surreptitiously, obtained statement, and that defendant at that time had no lawyer and had
not waived his right to lawyer were not clearly erroneous, and findings supported
conclusion that defendant's constitutional rights were violated by admission of
incriminating statement.
United States ex rel. O'Connor v. State of New Jersey,
405 F.2d 632 (3rd Cir. 1969),
cert. denied, 395 U.S. 923
(1969)
Where accused's statements, made during
interrogation, that while in New York before his arrest he knew New Jersey police were
looking for him were introduced and commented upon in prosecution's closing argument
and included in trial court's charge as indicative of willful flight to avoid prosecution and
hence evidence of guilt, admission of the statements, taken in violation of defendant's
constitutional rights to counsel, was prejudicial.
United States ex rel. Daley v. Yeager,
415 F.2d 779 (3rd Cir. 1969), cert. denied,
397 U.S. 924 (1970)
Where immediately after preliminary hearing at which accused
requested a lawyer, and which was adjourned until accused got attorney, detectives got
consent from accused to search his apartment and seized his bloodstained clothes that
were received in evidence at trial despite timely motion to suppress, obtaining of consent
violated accused's rights under 4th, 5th and 6th Amendments and absent overwhelming
untainted evidence for prosecution and in light of weakened condition of accused from
loss of sleep and history of schizophrenia, deprivation of constitutional right to see lawyer
was not harmless beyond a reasonable doubt.
Schantz v. Eyman,
418 F.2d 11 (9th Cir. 1969), cert. denied, 397 U.S. 1021 (1970)
Where, after indictment and in absence of notice to counsel, county attorney sent
psychiatrists to interview accused who had given notice of asserting insanity defense and
psychiatrist was permitted to testify at trial as to his confrontation with accused, accused
was denied basic protection of Sixth Amendment.
Shepherd v. Jordan,
425 F.2d 1174 (5th Cir.
1970)
Where each of four offenses
charged was punishable by imprisonment for maximum of six months and a fine of a
maximum of $500, indigent state defendant was entitled to assistance of counsel for her
defense, notwithstanding that most convictions resulted in suspended sentences or fines
of $27 or 25 days or less and that only .5% of those accused received fines in excess of
$54 or sixty days.
Wynn v. Smith,
446 F.2d 341 (5th Cir.
1971)
Where prisoner contended that he had
been indigent and had not been represented by counsel in state proceedings, state had
burden of introducing evidence that he had waived his right to appointed counsel and
issue was not to be resolved against petitioner because he had not requested a lawyer
or had understood in some measure the nature of charges to which he pleaded guilty.
Woods v. United States,
457 F.2d 185 (7th Cir.
1972)
Where record was silent as to
allegations that petitioner's 1932 felony conviction was void because he was not afforded
counsel and did not waive right to counsel and that he first became aware of right to
counsel when in 1970 he was arrested in California for failing to disclose such conviction
when he was purchasing firearm, it was to be presumed that petitioner's Sixth Amendment
rights had been violated, and heavy burden rested on Government to prove otherwise,
and denial of petition without evidentiary hearing was error.
United States v. Anderson,
523 F.2d 1192 (5th Cir.
1975)
Where Government did not
establish that there was any ongoing investigation of defendant on suspicion that he was
continuing his alleged criminal conduct, neither propriety of a continuing governmental
investigation of suspected criminal activities nor principle that a defendant is not
immunized from accountability for crimes committed after his indictment authorized
admission of testimony as to defendant's statement and actions when confronted after
indictment and in absence of counsel with a paid informant who gave fictional account of
a need for drugs.
United States v. Doss,
563 F.2d 265 (6th Cir.
1977)(opinion on rehearing)
Where a
substantial purpose of calling indicted defendant before grand jury was to question him
secretly and without counsel present without his being informed of the nature and cause
of the accusation about a crime for which he stood already indicted, the proceeding was
an abuse of process which violated 6th Amendment and due process clause of 5th
Amendment and defendant could not be prosecuted or convicted of perjury arising out
of invalid proceeding.
United States v. McManaman,
606 F.2d 919 (10th Cir.
1979)
Although statements of
defendant obtained by secret interrogation through electronic transmitter worn by
government agent, after defendant had been charged, had retained a lawyer and had
been released on bail, were admissible for purposes of impeaching defendant's sweeping
denials made on direct examination, its probative value was substantially outweighed by
danger of unfair prejudice thus making its admission prejudicial error under Rule 403, in
view of statements made by defendant during interrogation concerning murder plans not
related to defendant's denials of drug dealings.
United States v. Mohabir,
624 F.2d 1140 (2d Cir. 1980)
Where defendant was not
given any warnings other than standard Miranda warnings, was told that he was indicted
and was given copy of indictment to read but neither INS agents nor U.S. Attorney
explained what it meant to be indicted, and where record suggested that defendant did
not understand gravity of his position and apparently hoped he would aid his case by
telling his story, Government did not carry its heavy burden of proving that defendant's
purported waiver of right to counsel satisfied 6th Amendment.
United States v. Sampol,
636 F.2d 621 (D.C.Cir.
1980)
Under all circumstances of case
in which witness' freedom on probation was contingent on his "coming through" as an
informer who was to "forge ahead on [his] own" and "go all out," whose ability to
"ingratiate" himself with criminals was part of his stock in trade and who did ingratiate
himself with a defendant while they were fellow inmates, incriminating statements made
by defendant to informant were inadmissible at trial. Same was true though conversations
between the inmates had been broken off and then resurrected by defendant and though
government claimed that informant's function was limited to matter of procuring weapons.
Cahill v. Rushen,
678 F.2d 791 (9th Cir. 1982)
Where right to counsel had attached at
time of petitioner's confession following his first trial, confession was deliberately elicited
by police officer in absence of counsel, and petitioner was prejudiced by state's use of his
confession at second trial at which he was convicted, use of posttrial confession was
violation of Sixth Amendment right to assistance of counsel.
United States v. Geittmann,
733 F.2d 1419 (10th Cir. 1984)
Where government agents
led witness, who had been arrested, to believe that his cooperation in investigation would
help him and he began taping conversations at request of the government, use of
defendant's inculpatory statements made by defendant during postindictment period to
such witness was violation of defendant's Sixth Amendment right to counsel; same was
true if government agents actually asked such witness to stop recording conversations.
It was surreptitious questioning by government that offended defendant's right to counsel,
and where witness encouraged defendant to trust him, fact that defendant himself taped
certain conversations between the two did not establish waiver of right to counsel, and
witness would not be allowed to testify about defendant's inculpatory statements.
Felder v. McCotter,
765 F.2d 1245 (5th Cir. 1985), cert. denied,
475 U.S. 1111 (1986)
After counsel for person who has been charged with and arrested for criminal offense has
directed police not to interrogate accused in absence of counsel, confession elicited from
accused by police questioning in counsel's absence is inadmissible even though police
have given him Miranda warning; accused's response to questioning is not a waiver of his
previously asserted right to assistance of counsel.
Denny v. Sowders,
798 F.2d 1414 (6th Cir. 1986) (unpublished)
Violation of Michigan
v. Jackson where, after a hearing at which counsel was appointed, sheriff escorted
defendant back to jail and on the way he told defendant "I feel like you have something
else you want to tell me," and defendant proceeded to confess.
Wilson v. Murray,
806 F.2d 1232 (4th Cir. 1986), cert. denied,
484 U.S. 870 (1987)
Petitioner asserted his right to counsel at arraignment, but before he could consult with
his attorney, police initiated an interrogation and obtained a statement from him. Even if
his statement was voluntary, in the sense that word is normally used, it was obtained in
contravention of the bright line rule of Michigan v. Jackson: Once the right to counsel is
invoked at arraignment, subsequent waiver is invalid.
United States v. Neal,
854 F.2d 1318 (4th Cir. 1988) (unpublished)
Massiah and Innis
violated where, on the way to the jail, after indictment, cop and defendant stopped at a
restaurant where defendant made incriminating statements to the cop. Neal made a
statement to the cop, the cop questioned it, then Neal responded with a statement that
tended to incriminate him.
United States v. Terzado-Madruga,
897 F.2d 1099 (11th Cir.
1990)
Government
violated defendant's Sixth Amendment rights when it arranged to record postindictment
conversations between defendant and undercover informant, even though government
agent's stated purpose was to record conversations about murder scheme for which
defendant had not been indicted and informant was told not to engage defendant in any
discussions regarding pending federal case.
United States v. Mitcheltree,
940 F.2d 1329 (10th
Cir. 1991)
Defendant's Sixth
Amendment rights on pending charges of introducing misbranded drug into interstate
commerce were violated by Government's scheme in which witness in narcotics cases
acted as government agent to elicit and record comments from defendant concerning
narcotics charges; while Government was free to investigate its suspicions that
defendant would engage in witness tampering, it could not encourage witness to inquire
into pending charges in more than tangential way.
United States v. Johnson,
954 F.2d 1015 (5th Cir.
1992)
Sixth Amendment right to
counsel violated where co-defendant, whom defendant knew had pled guilty, wore a wire
to defendant's house and deliberately elicited information, despite government's claim that
it told him not to ask defendant about the case. Government claimed defendant waived
right to counsel because he made it known he was speaking to informant against
counsel's advice. Court rejected this argument because defendant did not know informant
was working for the government and was thus unable to make a knowing `and intelligent
waiver.
United States v. Brink,
39 F.3d 419 (3rd Cir.
1994)
Defendant raised a colorable claim
that government violated his right to counsel by placing him in a cell with a known
informant. The informant had acted as a government agent in other cases and appeared
to defendant as just another inmate. To meet the standard set forth in Henry, the only
questions were whether the informant was acting as a government agent when he got
defendant to admit the crime, and whether the information was deliberately elicited.
Remanded for evidentiary hearing on those issues.
United States v. O'Dell,
73 F.3d 364 (7th Cir. 1995)
(unpublished)
Informant, whose
placement in cell with defendant was not done at the request of the government, was a
government agent for purposes of Sixth Amendment analysis because he had signed a
cooperation deal with authorities years earlier which had never been revoked, and he had
provided information through the years on various cases. Information gathered from
defendant by informant was inadmissible because: (1) informant notified federal agent that
he had some information and told him he would get more; (2) instead of acting only on the
information gathered prior to informant's first call, federal agent waited for additional
information to be gathered; and (3) although state did not intentionally create the
opportunity, it did knowingly exploit the opportunity by failing to disaffirm informant's
expressed intent to elicit information.
United States v. Arnold,
106 F.3d 37 (3rd Cir.
1997)
After the defendant was indicted
for witness intimidation on morning of March 28, 1995, law enforcment officers conducted
a sting operation that afternoon to gather information about an attempted murder charge.
The court held that the defendant's right to counsel carries over from pending charge of
witness intimidation to new, but closely related, charge of attempt to murder a witness.
As a result, a tape recording of incriminating statements made by defendant during the
sting operation was inadmissible with respect to attempted new murder charge.
United States v. Abdi,
142 F.3d 566 (2nd Cir. 1998)
Defendant's conviction for importing
opium was reversed due to the prosecution's use on cross-examination of a statement
defendant made in an INS initiated custodial interview after his arraignment and retention
of counsel, but in the absence of his attorney. Although the statement was used only to
impeach defendant's claim that he could not speak English well, it was inadmissible as
either substantive or impeachment evidence due to the absence of any evidence
indicating that defendant's Sixth Amendment right to counsel had been knowingly and
voluntarily waived as required by Michigan v. Harvey, 494 U.S. 344 (1990).
United States v.
Lozada-Rivera,
177 F.3d 98, 107 (1st Cir.
1999)
The court held that
the erroneous admission of testimony by a jailhouse snitch indicating that defendant had
attempted to bribe him the night before he was scheduled to testify at defendant's trial
was not harmless. On appeal, the government conceded that the snitch was a
government agent, and that he had deliberately elicited the incriminating statements from
defendant. The court rejected the government's harmlessness arguments, explaining that
despite the "substantial evidence pointing toward [defendant's] guilt," the "jury would
reasonably presume that an innocent man would have no reason to ask a witness to
shade his testimony. . . . Once heard, [this information] could well have become the
colored lens through which the jury viewed all of the other evidence."
United States v. Bender,
221 F.3d 265, 269 (1st Cir. 2000)
The court of appeals
upheld the district court's suppression of statements made to an undercover officer by
defendant while awaiting trial for a felon in possession of a firearm charge. The
statements related to defendant's consideration of ways to skew the trial in his favor,
including suborning perjury and kidnaping and killing prosecution witnesses. The court
rejected the government's contention that because the statements did not directly concern
defendant's guilt or innocence of the crime charged, the Sixth Amendment did not prohibit
their admission. The court explained that "[a]ll that matters is that the statements were
incriminating as to the pending charges; it does not matter how. So while [defendant's]
statements suborning perjury did not provide direct evidence in the pending case . . .or
amount to an explicit confession, they 'strongly tended to show that a guilty mind was at
work.'" (citation omitted). . . . [Defendant's] statements . . . were likely to be incriminating
as to the pending charges, were deliberately elicited post-indictment, and were obtained
in the absence of counsel. Thus, they were obtained in violation of the Sixth Amendment
and were rightly suppressed by the district court."
United States v. Red Bird,
287 F.3d 709 (8th Cir. 2002)
Defendant was charged with rape in a Rosebud
Sioux tribal court and appointed a public defender. Although aware of
the tribal charges and appointment, a federal agent and tribal
investigator subsequently questioned defendant, without benefit of
counsel, for use in a federal rape prosecution arising out
of the same incident. The federal indictment followed. (Note that the
Rosebud Sioux Constitution goes beyond the Indian Civil Rights Act to
provide the right to an attorney similar to that guaranteed by the Sixth
and Fourteenth Amendments.) The Court held that defendant was entitled
to the protection of the Sixth Amendment, that the federal and tribal
complaints charge the same offense for Sixth Amendment purposes, and
that defendant’s rights attached at the tribal court arraignment because
it was an adversarial proceeding. Defendant’s statement was
suppressed.
Manning v. Bowersox,
310 F.3d 571 (8th Cir. 2002)
The government’s use of informants to elicit
information from defendant awaiting trial and assist him in fabricating
an alibi violated the Sixth Amendment. It is immaterial that defendant
was charged by complaint rather than indictment, and the government’s
agents deliberately elicited information. Defendant demonstrated that
counsel’s ineffective performance was cause and prejudice sufficient to
overcome the procedural default and habeas relief is granted.
United States v. Danielson,
325 F.3d 1054(9th Cir. 2003)
The government improperly interfered with
defendant's attorney-client relationship by obtaining recordings of an
informant's conversations with defendant concerning trial strategy. The
case is remanded to the district court to determine if government had
established by preponderance of the evidence that it did not use
privileged information.
United States v. Kennedy,
372 F.3d. 686 (4th Cir. 2004)
Where petitioner, whose drug trafficking
conviction was on direct appeal, was brought before a grand jury
investigating drug trafficking and money laundering activities, his
Fifth and Sixth Amendment rights were violated and the Court would not
hesitate to suppress his statements in any subsequent drug prosecution.
However, the statements are admissible in petitioner’s perjury
prosecution arising out of those statements.
Randolph v. People of the State of Ca,
380 F.3d 1133 (9th Cir. 2004)
A jailhouse informant may be found an agent
of the State even where there is no express agreement between the
informant and the government that the informant will be compensated for
his services. District court’s decision is vacated and remanded for
further fact-finding as to issues of timing and the informant’s
behavior.