United States v. Morrison, Hazel

602 F.2d 529

• Court: Court of Appeals for the Third Circuit
• Decided: July 16, 1979
• Docket: 78-2258
• Status: Published

Opinions

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

On June 28, 1978, the Appellant, Hazel Morrison, was indicted on two counts of illegally distributing heroin in violation of 21 U.S.C. § 841(a)(1) (1976). Prior to trial, she filed a Motion to Dismiss the Indictment with Prejudice, alleging denial of her sixth and fourteenth amendment right to effective assistance of counsel and her fourteenth amendment right to a fair trial. The motion to dismiss was heard in the United States District Court for the Eastern District of Pennsylvania and was denied without opinion. Immediately after the announcement of the district court’s decision denying the motion, Morrison entered an open conditional plea of guilty to one count of distribution.¹ She was subsequently sentenced to five years imprisonment, with a special parole term of three years to follow.

The record in this case shows that agents of the Drug Enforcement Agency effected a willful and unjustified interference with Mrs. Morrison’s sixth amendment right to counsel.² We conclude that both counts of the indictment against Morrison should be dismissed with prejudice.

I.

On May 31, 1978, Salvatore Cucinotta, Morrison’s lawyer, met with Assistant U.S. Attorney Jack Riley and D.E.A. agent Dennis Malloy for the purpose of engaging in pre-trial negotiations. At least from that date, the government knew that Mrs. Morrison was represented by counsel. Subsequently, agent Malloy was contacted by another D.E.A. agent, Stephen Hopson. Hop-son was engaged in the investigation of a heroin dealer, and wished to gain Mrs. Morrison’s cooperation in that investigation. Malloy was aware that Hopson wanted to negotiate with Mrs. Morrison, and knew that Hopson wished to “solicit her cooperation.” Malloy discussed the case against Morrison “generally” with Hopson, and Hopson was allowed to examine the file on defendant’s pending trial. Hopson also had “two or three” conversations with Assistant U.S. Attorney Riley in which Morrison’s “name came up”.

On August 23, 1978, D.E.A. agents Hop-son and James Bradley visited defendant’s home with neither the knowledge nor the permission of her counsel. At that time Hopson questioned Mrs. Morrison about the source of her heroin during the period prior to her arrest; suggested that she was facing a stiff jail term;³ observed that he could make recommendations to the U.S. Attorney as to whether she should receive a lenient or heavy sentence; and told her about the government’s protection plan for informers. Hopson also questioned Mrs. Morrison about how much money she was to pay Mr. Cucinotta. He then stated that he had seen her counsel’s work, and suggested to Mrs. Morrison that she retain a public defender instead. He also urged her to obtain the services of a public defender if she wished to cooperate with the D.E.A. Finally, he suggested that she should think about the quality of the representation that she would receive for the amount of money ($200) that she was paying attorney Cucinotta. Upon departing, he gave defendant his telephone number.

Mrs. Morrison immediately called attorney Cucinotta, who went to her home. While he was there, Morrison called the number she had been given and made plans to meet agent Hopson between noon and 1:00 p. m. of the next day. However, that next day Hopson did not arrive as scheduled, but appeared without warning at about 6:00 p. m. The defendant told him that she had company and couldn’t speak, and that in any event she wanted her lawyer present. Hopson departed. One day later Mrs. Morrison received yet another surprise visit from agent Hopson. According to Hopson’s testimony he repeated the statements he had made during his first visit.

The government “readily concedes that the agents erred in attempting to elicit the cooperation of Morrison without working through her attorney.” On these facts, we are confronted with neither the proverbial constable’s blunder, not overzealousness in the pursuit of otherwise legitimate law enforcement ends. Rather, we have a pattern of conduct calculated to intrude upon and destroy the attorney-client relationship.

II.

The government presents us with two threshold questions which must be answered before we may consider the advisability of granting such extraordinary relief as dismissal of the indictment. First, it contends that we are precluded by Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), from granting any relief at all. Second, it claims that, even if there has been a sixth amendment violation, dismissal of the indictment is not a permissible remedy.

The government reads Weatherford as holding that, in the absence of demonstrable prejudice, no sixth amendment violation occurs. We disagree. In Weather-ford, the Supreme Court was asked to determine whether the presence of an undercover police officer at a strategy meeting between a defendant and his counsel amounted to a constitutional violation. The police officer, when in fact invited by the defendant, attended exclusively for the purpose of preserving his undercover identity and did not relate anything that he had heard during the course of the meeting. The Court of Appeals for the Fourth Circuit concluded that “whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.” Bursey v. Weatherford, 528 F.2d 483, 486 (4th Cir. 1975). The Supreme Court reversed, reasoning that not every intrusion into the attorney-client relationship is a violation of the sixth amendment right to counsel, and rejected the Fourth Circuit’s per se test. The Court’s decision was a narrow one. The Court held only that “[tjhere being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weather-ford, there was no violation of the sixth amendment.” 429 U.S. at 558, 97 S.Ct. at 845. This holding is not broad enough to support the interpretation that the government urges upon us, namely that mere failure to gain evidence or tactical advantage from an intrusion bars any finding of a sixth amendment violation.

Weatherford applies, in the eavesdropping context, when there is both no prejudice to defendant’s case and no wrongly motivated intrusion into the attorney-client relationship. This leaves untouched a vast range of conduct which does constitute a recognizable violation of the right to effective assistance of counsel.⁴ In the case of a deliberate attempt actually to sever or otherwise to interfere with the attorney-client relationship, a much more explicitly intrusive offense, the analysis must proceed differently. Here, it is appropriate to consider the purpose and propriety of the agent’s conduct and its effect on the defendant’s rights and the attorney-client relationship.⁵ We had cause to consider this issue in Via v. Cliff, 470 F.2d 271 (3d Cir. 1972). There, prison officials were accused of wrongfully preventing an attorney from contacting his prisoner-client during the period immediately before trial. We advanced the test that, “[if] the interference was either wrongly motivated or without adequate justification, [it constitutes] an infringement of [the] constitutional right to counsel.”. Id. at 275.

This test for wrongfully motivated or inadequately justified interference is entirely consistent with the rationale of Weather-ford, which itself identified purpose as a factor to be considered in the context of challenged eavesdropping. Indeed, since in Weatherford the police officer intruded only to the extent that it was necessary to be physically present at defense meetings to preserve his cover, the intrusion was neither wrongly motivated nor without adequate justification, and would have been upheld under the Via test.⁶ Accordingly, we conclude that Weatherford does not bar us from finding a violation on the facts before us.

The government next advances the contention that even if we find a sixth amendment violation, we are limited to ordering either suppression of evidence or a new trial. The government argues that since neither of these orders would be appropriate in this case, we are precluded from granting any relief at all. We readily agree that suppression or new trial are frequently appropriate forms of relief for sixth amendment violations. The government has cited a number of our previous decisions wherein such relief was ordered. However, none of those cases even suggests the novel rule that these two forms of relief are exclusive.⁷ There is no principle advanced by the government which would limit our power to dismiss the indictment should such a deterrent appear warranted.

In Via v. Cliff, we found that purposeful interference with the attorney-client relationship made out a colorable claim to relief under § 1983. There was no request for relief in the nature of dismissal of an indictment in that case. In Gallarelli v. United States, 441 F.2d 1402 (3d Cir. 1971), we found that the guidance of counsel during plea bargaining was so critical that a counsel-less bargain (i. e. one negotiated during a brief period when defendant was “between” attorneys) could not be accepted. There, we vacated the conviction that was based on the guilty plea. The question of whether dismissal was an appropriate remedy never arose. However, in United States v. Levy, 577 F.2d 200 (3d Cir. 1978), we found it necessary to dismiss an indictment as the remedy for a sixth amendment violation. In that case a D.E.A. informer sat in on meetings between defendant and his counsel and disclosed the defense strategy to prosecution officers. Because an attempt to assess the prejudice to the defendant would have been speculative at best, we held that the intrusion and mere disclosure, without more, was sufficient to make out a sixth amendment violation. In light of the fact that no other relief would remedy the violation, and considering the extent and seriousness of the improper conduct of the government, we found the only appropriate relief for the violation to be dismissal of the indictment.

III.

The case before us fits this pattern. Under the test in Via and Gallarelli, the challenged conduct represents not only an “inadequately justified” but a thoroughly unjustified and wrongly motivated interference with the attorney-client relationship, and constitutes a violation of the defendant’s sixth amendment right to effective assistance of counsel. As in Levy the conduct is not amenable to remedy through suppression or reversal of conviction.

What remains for decision is whether dismissal of the indictment is appropriate in the circumstances of this case. The government has conceded that the agents’ actions were error, but urges that the admitted error was essentially harmless. The government apparently fails to appreciate the sixth amendment. As the Supreme Court has said, “[RJight to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942). In this case, the actual conduct, its motivation, its intended effect, and its pointed intrusiveness are readily apparent. Alone with the defendant, but with the knowledge that she was represented by counsel, the D.E.A. agents attacked the dedication and competence of her lawyer and attempted to raise doubts in her mind about his effectiveness. They represented themselves as having influence with the prosecution as a means of coercing defendant into abandoning her counsel and her defense.

The deliberate undermining of constitutional rights must not be countenanced. This is particularly so when, as here, the matter will come to the attention of the courts only when the importuning of the government agents is unsuccessful. There is, therefore, real danger that the courts themselves may become the unwitting instrumentality through which government agents may interfere with basic constitutional rights.

We have found a deliberate attempt to destroy the attorney-client relationship and to subvert the defendant’s right to effective assistance of counsel and a fair trial. Accordingly, the judgment will be reversed, the sentence will be set aside, and the case will be remanded to the district court for the entry of an order dismissing both counts of the indictment with prejudice.

Before SEITZ, Chief Judge, and ALDI-SERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH and HIGGIN-BOTHAM, Circuit Judges.

1 . The guilty plea was contingent upon appeal of the district court’s ruling to this Court. We approved the use of the conditional guilty plea in United States v. Zudick, 523 F.2d 848 (3d Cir. 1975), and United States v. Moskow, 588 F.2d 882 (3d Cir. 1978), and find the appeal to be properly before us now.

2 . The district court did not make any findings of fact or draw any conclusions of law when it denied Morrison’s motion to dismiss the indictment. On appeal, we are not free to canvass the record and make our own findings of fact. However, accepting all factual statements over which there is no dispute, adopting the pleadings submitted by the government, and taking at face value the testimony of the agents who were the government’s witnesses, we still find that a pattern of impermissible conduct emerges. In any event it should be borne in mind that the dispute on appeal does not turn so much on how we characterize the conduct, as on whether we are justified in ordering the relief requested by the defendant.

3 . Mrs. Morrison testified that the agents warned her that the trial judge in her case was the “worst SOB in the federal courts”, that he “hates black people”, and that her “goddamn ass [was] going to jail”. The agents testified that they did not recall the specifics of this conversation.

4 . Indeed, Weatherford is applied narrowly even in the eavesdropping context. In United States v. Levy, 577 F.2d 200 (3d Cir. 1978), we found that mere disclosure of attorney-client confidences constituted prejudice under the Weatherford test, without regard to whether there was any prejudicial effect on the outcome of the trial.

5 . This is exactly what was done in Gallarelli v. United States, 441 F.2d 1402, 1405 (3d Cir. 1971). There, we reversed a conviction based on a guilty plea negotiated in the absence of counsel. We held that “a plea entered without such guidance must be set aside without inquiry whether demonstrable harm resulted in the case in question.”

6 . As the Supreme Court noted in reference to the police officer’s justification, “Our' cases, however, have recognized the unfortunate necessity of undercover work.” 429 U.S. at 557, 97 S.Ct. at 844.

7 . Two examples demonstrate the inaptness of the government’s authority to the proposition for which it has been cited.

In United States v. Cobbs, 481 F.2d 196 (3d Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973), we held that custodial interrogation in the absence of counsel was permissible if the defendant had freely and intelligently waived his right to have counsel present. Defendant had requested that the evidence gathered from the interrogation be held inadmissible, but we had no need to reach that issue.

In United States v. Crook, 502 F.2d 1378 (3d Cir. 1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 808, 42 L.Ed.2d 823 (1975), we were confronted with a lower court’s suppression of a confession made after a knowing waiver of defendant’s Miranda rights, where the court found that the police officers knew that defendant was represented by counsel in an unrelated case. Our narrow holding was that the court could not suppress a confession made in full compliance with Miranda, because of what it found to be “unethical” police conduct. In the case before us today, we find an actual constitutional violation, and are free to provide an appropriate remedy. Crook is silent as to what the contours of that remedy should be.