United States v. Anthony Charles Durham

475 F.2d 208, 1973 U.S. App. LEXIS 11412

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 28, 1973
• Docket: 72-1067
• Status: Published

Opinions

SWYGERT, Chief Judge.

Anthony Charles Durham appeals from his conviction by a jury for the armed robbery of the treasurer of the Drover Street Federal Credit Union in Indianapolis in violation of 18 U.S.C. § 2113(a). Durham asserts four reasons for the reversal of his conviction: (1) the erroneous admission of testimony concerning his purported confession in violation of the fifth and sixth amendments to the Constitution, (2) the erroneous admission of a government agent’s memorandum and notes as to the purported confession for the purpose of reinforcing the agent’s credibility, (3) the erroneous admission of irrelevant prejudicial evidence concerning a black Impala Chevrolet that Durham had allegedly stolen, and (4) the absence of any evidence to establish that Durham had knowledge or intent to rob a federal credit union in violation of the federal statute.

The defendant was indicted on March 20, 1961 and found guilty by a jury on May 19, 1961. He received a twenty-year sentence which was vacated on August 8, 1961. He was resentenced to ten years after the district judge had received a study of Durham in accordance with 18 U.S.C. § 4208(c). The August 8, 1961 sentence was vacated on November 25, 1964 since Durham and his attorney were not present at the first re-sentencing, in accordance with the requirements of United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963), affirming 312 F.2d 223 (7th Cir. 1962). Durham then received the same ten-year sentence. That sentence was later vacated on September 30, 1971 after Durham had filed a petition for writ of error coram nobis under 28 U.S. C. § 2255, based on the failure of the court or his attorney to inform him of his appellate rights. He was then given a ten-year sentence to be served concurrently with another sentence with credit allowed for time already served. After the final resentencing, Durham’s counsel moved for judgment of acquittal or for a new trial raising all of the issues presented in this appeal. The district court denied the motion.

Special Agent Fred Doerner of the Federal Bureau of Investigation, the agent in charge of the investigation, testified at Durham’s trial that the defendant confessed having committed the crime when Doerner interviewed him at the Marion County jail. Doerner testified that prior to the taking of the orally admitted committing the crime and that on January 23, 1961 he, Doerner, took a statement of confession from the defendant which the defendant refused to sign. Doerner further testified that prior to the taking of the statement, he informed “Durham that he was not required to make any statement; that any statement he did make could be used against him in court, and that he was entitled to the services of an attorney.” The defendant denied making the statement of confession.

Counsel on behalf of Durham argues that it was error to admit the testimony without a hearing on the voluntariness of the confession since Doerner knew that the defendant was represented by counsel and yet counsel was not present when the statement was obtained. The Government in reply maintains that although the defendant denied making the statement, he did not deny that he had been advised by Doerner of his rights to counsel and to be silent. The Government also argues that Durham did not raise the voluntariness issue at trial and is therefore precluded from raising it for the first time on appeal, especially since there were no “alerting circumstances.” United States ex rel. Lewis v. Pate, 445 F.2d 506, 508 (7th Cir. 1971). Finally, the Government contends that Durham never asserted that he requested counsel and therefore it may properly be concluded that he waived this right.

The robbery occurred on December 9, 1960. Joseph Mazelin, counsel for the defendant, spoke with agent Doerner on the telephone on December 20, 1960 and thereafter had Durham talk with the agent. Doerner was also in municipal court on December 30, 1960 and saw Mazelin representing Durham on a state criminal charge. Mazelin also represented Durham at the preliminary hearing before the United States Commissioner on January 5, 1961, at which Doerner was present. Doerner interviewed the defendant on January 2, 9, 16, 20 and 23, 1961 while Durham was in the Marion County jail. Attorney Mazelin was not present at any of these interviews.

It is undisputed that agent Doerner knew that Durham was represented by counsel when he obtained the incriminating statements. Although the agent’s first interview with Durham on December 20, 1961 was arranged by his counsel, there is nothing in the record that indicates that Doerner ever informed Durham’s counsel of the five subsequent interviews in the Marion County jail.

The defendant contends that the statements obtained from him in the absence of his attorney deprived him of his sixth amendment right to have assistance of counsel for his defense in the criminal prosecution. This issue was first raised in his motion for a new trial.

The Supreme Court in Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), held that Massiah had been denied his sixth amendment right to assistance of counsel “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Here, agent Doerner, knowing Durham was represented by counsel, obtained incriminating statements from him in the absence of counsel and after his arrest and the preliminary hearing.

Although the Government has not raised the issue, we think it is necessary for us to consider two questions in applying the principles of Massiah to this case. The first is whether Massiah is to be applied retroactively. Durham points to the comparative time sequence of his case with that of Massiah and Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Regardless of the comparative time sequences of those eases, we believe the question is controlled by McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965), mem. rev’g 1 Ohio St.2d 60, 203 N.E.2d 349 (1964). There, McLeod willingly made inculpating statements to the chief deputy sheriff and the assistant prosecuting attorney after his indictment and in the absence of counsel. At the time the statements were made, McLeod had not been arraigned and had not requested appointment of counsel. The statements were subsequently introduced at his trial for murder. The Supreme Court reversed the conviction and applied Massiah retroactively.¹ See also United States ex rel. Graham v. Mancusi, 457 F.2d 463, 470 (2d Cir. 1972); United States ex rel. O’Connor v. State of New Jersey, 405 F.2d 632, 637 (3d Cir. 1969); Hancock v. White, 378 F.2d 479, 482-483 (1st Cir. 1967).

The second question is whether Massiah is limited to post-indictment statements or whether it includes statements obtained after arrest and preliminary hearing. I read Massiah to bar the admissibility of the statements obtained here since the Government had initiated “adversary judicial criminal proceedings” against Durham prior to the time the statements were obtained. Cf. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Although the Government was entitled to continue its investigation subsequent to the defendant’s arrest and preliminary hearing, it could not, in my opinion, permissibly interview the defendant without advising his counsel. The facts here are similar to McLeod, except that, unlike McLeod, the government agents obtained the incriminating statements from Durham in the absence of retained counsel known to be representing the defendant on this criminal charge. Such conduct would appear to raise ethical questions.²

Doerner attempted to obtain incriminating statements from Durham on four separate occasions while the defendant was in jail even though he denied complicity during the first three interviews.³ In my opinion, the Government had the burden to show that the agents had informed Durham’s counsel of the intended interviews after his arrest. It failed to adduce such proof.⁴

Since Doerner’s testimony concerning Durham’s incriminating statements should not have been admitted, it follows that the written statement prepared by Doerner of Durham’s confession was also inadmissible. There was no need to reinforce Doerner’s credibility since his original testimony should have been suppressed.

The defendant further contends that the trial judge erred in admitting evidence relating to a stolen black Impala Chevrolet. The Government presented a number of witnesses who testified that a black Impala Chevrolet had been stolen prior to the robbery. Another Government witness testified that he had been arrested for possession of a stolen black Impala Chevrolet and that he had borrowed the car from the defendant several times during December 1960. Lastly, another witness testified that on the day of the robbery he noticed two men in a black Impala Chevrolet which was parked near the Drover Street Federal Credit Union. The witness could not identify the defendant as either of the two men. The foregoing evidence, standing alone, was completely irrelevant to the charge on which the defendant was tried. The only possible basis for its admission was certain statements made by the defendant to agent Doerner. Since these statements were inadmissible for the reasons I have heretofore stated, it follows that the evidence relating to the stolen Chevrolet automobile was also inadmissible.

The defendant’s final contention is that the Government failed to prove that he had a specific intent to rob an officer of a federal credit union in violation of 18 U.S.C. § 2113(a) and that such intent was a necessary element of the offense. There was no specific evidence of intent by Durham to rob a federal credit union officer other than his admission on January 9, 1961 to Doerner that he knew it was a federal offense to rob the credit union because he had seen the sticker on the front door which related that fact. Thus if Durham’s jail statements are inadmissible, there is no evidence of intent to rob a federal credit union officer. I see no reason under the circumstances of the disposition of this appeal to decide whether or not proof of intent is an element of the offense.

The judgment of conviction is reversed and remanded for further proceedings not inconsistent with this opinion. In my judgment, the further proceedings would be in the form of a new trial; however, the views of Judge Castle and Judge Pell, which control in this respect, requires only as a first step a hearing on the voluntariness issue, with a new trial to follow only if the voluntariness issue is resolved against the Government.

1 . McLeod, as here, was a direct appeal in which the trial was held prior to the Supreme Court’s decision in Massiah.

2 . The American Bar Association, Code of Professional Responsibility, DR 7-104 (A) (1) provides:

During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or by law is authorized to do so.

3 . United States v. Smith, 379 F.2d 628, 631 (7th Cir. 1967), cert. denied, 389 U.S. 993, 88 S.Ct. 491, 19 L.Ed.2d 486, is distinguished from this case in that there false exculpatory statements made by Smith were uttered immediately after Miranda warnings had been given and before representation by counsel. A similar fact situation existed in United States v. Cassell, 440 E.2d 569, 571 (7th Cir. 1971). But here, there were repeated attempts by Doerner to obtain an incriminating statement from the incarcerated Durham in the absence of counsel known by Doerner to be representing Durham.

United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116, is also distinguished from the instant case in that there the incriminating statement was the result of a request by the incarcerated Crisp to speak with the federal agents. In this case, Durham did not initiate the interviews and it was not until the fourth day of the interviews in jail that he admitted having committed the crime.

4 . My view would be entirely different if the Government at a retrial establishes that defense counsel throughout the post-arrest interviews was aware of the interviews and approved of them.