United States Court of Appeals
For the First Circuit
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No. 99-2190
UNITED STATES OF AMERICA,
Appellant,
v.
JEREMY BENDER,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Stahl and Lynch, Circuit Judges,
and Gorton, District Judge.*
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F. Mark Terison, Senior Litigation Counsel, with whom Jay P.
McCloskey, United States Attorney, was on brief, for appellant.
Jane Elizabeth Lee for appellee.
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* Of the District of Massachusetts, sitting by designation.
August 4, 2000
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LYNCH, Circuit Judge. While in prison awaiting trial on
charges of being a felon-in-possession of a firearm, Jeremy Bender
conversed with an undercover government agent concerning his plot to
falsify an alibi and possibly kidnap and murder government witnesses.
Bender's attorney was not present during the conversation nor notified
that it would take place. After the government informed Bender that it
would seek to introduce his statements in the pending criminal case, he
moved to have them suppressed. Applying Maine v. Moulton, 474 U.S. 159
(1985), the district court found that the statements were incriminating
and obtained in violation of the Sixth Amendment. As a consequence,
the court suppressed them. The government appeals and argues that the
admission of these statements would not violate the Sixth Amendment
because: 1) the statements concerned future crimes unrelated to the
pending charges; 2) the statements, insofar as they concerned
subornation of perjury, were unprotected by the Sixth Amendment; 3) the
government did nothing wrong in obtaining the statements; and 4)
suppression of the statements would encourage the obstruction of
justice. We affirm.
I.
On April 14, 1999, Bender was indicted on one count of being
a felon-in-possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(e)(1).1 Bender was arraigned on April 26th and the
district court assigned him counsel. He was incarcerated pending
trial. A superseding indictment, entered May 27, 1999, tacked on two
1 Related state charges against Bender are also pending.
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more felon-in-possession counts. For reasons immaterial to this
appeal, Bender's trial date was continued until October 18, 1999.
During his incarceration, Bender allegedly spoke with two
fellow inmates, on separate occasions, about ways in which he could
illegally influence the outcome of his impending trial. One scheme
involved the fabrication of an alibi for himself; the second involved
the kidnaping and murder of government witnesses who would testify
against him. The inmates, neither of whom were government agents at
the time, reported their conversations with Bender to the authorities.
On September 23, 1999, an undercover officer went to the
prison to meet with Bender. The officer was instructed not to speak
with him about the pending felon-in-possession charges. Bender thought
he was meeting with his alibi-for-hire. During the ensuing
conversation, Bender made incriminating statements pertaining to his
schemes to hire an alibi witness and a hit man. There was no discussion
of, and Bender made no admissions pertaining to, the pending felon-in-
possession charges as such. Bender's attorney was not present during
the conversation.
On October 1, 1999, the government notified Bender's attorney
that it would seek to introduce Bender's statements as evidence against
him in the pending case. That same day, Bender moved to suppress all
statements made to the two prisoners and the undercover officer. On
October 22nd, the district court heard testimony and argument and,
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relying on Moulton, granted Bender's motion to suppress the statements
made to the undercover officer.2 In particular, the district court
found that:
the law enforcement agents intended to investigate new
crimes, specifically subornation of perjury and kidnaping or
attempted murder . . . [;]
. . . the law enforcement agents did exactly what they
should have done, which is to say . . . limiting the inquiry
from defendant Bender and, of course, . . . [investigating]
these potential new offenses . . . [;]
. . . because the subordination of perjury had to do with an
alibi . . . [,] the law enforcement authorities must have
known it was likely to elicit incriminating statements . . .
[;]
. . . [and] the defendant did in fact make incriminating
statements with respect to the creation of false alibi and,
of course, the government would not seek to admit it were it
not material evidence that would bear upon consciousness of
guilt involving the crime.
The government appeals.
II.
We review the district court's factual findings for clear
error and its constitutional rulings de novo. See United States v.
Marenghi, 109 F.3d 28, 31 (1st Cir. 1997). The government does not
dispute the district court's factual findings.
A person is "denied the basic protections of [the Sixth
2 The district court denied Bender's motion insofar as it
pertained to the statements of the two prisoners regarding their
conversations with Bender before they contacted the government. Bender
does not appeal this aspect of the district court's ruling.
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Amendment's] guarantee 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." Massiah v. United States, 377 U.S. 201, 206
(1964); see also United States v. LaBare, 191 F.3d 60, 64 (1st Cir.
1999). As Justice Black noted in Gideon v. Wainwright, "reason and
reflection require us to recognize that in our adversary system of
criminal justice, any person haled into court . . . cannot be assured
a fair trial unless counsel is provided for him." Gideon v.
Wainwright, 372 U.S. 335, 344 (1963); see also United States v.
Nocella, 849 F.2d 33, 35 (1st Cir. 1988). And, as noted in Moulton,
"what use is a defendant's right to effective counsel at every stage of
a criminal case if, while he is held awaiting trial, he can be
questioned in the absence of counsel until he confesses?" Moulton, 474
U.S. at 171 (internal quotation marks and citation omitted).
Thus, the accused is guaranteed, "at least after the
initiation of formal charges, the right to rely on counsel as a
'medium' between him and the State." Id. at 176. It is irrelevant who
initiates the conversation that is likely to induce the accused to make
incriminating statements without the assistance of counsel. See id. at
174-75; United States v. Henry, 447 U.S. 264, 270-75 (1980). Although
"the Sixth Amendment is not violated whenever -- by luck or
happenstance -- the State obtains incriminating statements from the
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accused after the right to counsel has attached," the "knowing
exploitation by the State of an opportunity to confront the accused
without counsel being present is as much a breach of the State's
obligation not to circumvent the right to the assistance of counsel as
is the intentional creation of such an opportunity." Moulton, 474 U.S.
at 176; see also Bey v. Morton, 124 F.3d 524, 528-30 (3d Cir. 1997).
Further, "that the State 'must have known' that its agent was likely to
obtain incriminating statements from the accused in the absence of
counsel suffices to establish a Sixth Amendment violation." Moulton,
474 U.S. at 176 n.12. The government, here, does not ask us to rethink
the rule in Moulton, nor does it argue that the incriminating
statements were obtained by luck or happenstance.
Instead, the government contends, primarily, that, since the
incriminating statements concerned different and future crimes,
unrelated, it says, to the pending charges, the Sixth Amendment does
not apply. We disagree. The statements were incriminating not only as
to future crimes (perjury, conspiracy to kidnap and murder) but also as
to the pending charges. So long as the statements were incriminating
as to the pending charges and were deliberately elicited by government
agents, they cannot constitutionally be admitted in the trial of those
charges. Cf. id. at 180 (holding that the Sixth Amendment does not
permit the introduction of directly incriminating statements obtained
during the investigation of other crimes).
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At bottom, the government's position is that Moulton is
limited to direct statements by the defendant about the crime with
which he has been charged. Nothing in Moulton supports that
limitation, and Sixth Amendment jurisprudence is to the contrary. See
Massiah, 377 U.S. at 207. All that matters is that the statements were
incriminating as to the pending charges; it does not matter how. So
while Bender's statements suborning perjury did not provide direct
evidence in the pending case (e.g., underlying facts, details, and
strategy) or amount to an explicit confession, they "strongly tended to
show that a guilty mind was at work." United States v. Lozada-Rivera,
177 F.3d 98, 107 (1st Cir. 1999) (suppressing similar jailhouse
statements because of Sixth Amendment violation). It was obvious that
questioning Bender about a false alibi for the underlying charges would
result in his making incriminating statements as to those charges. The
same was true of a plot to do away with government witnesses. Bender's
statements, therefore, 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.3 Cf. id. (finding that the admission of statements
3 Moulton overruled this circuit's earlier decisions in Grieco
v. Meachum, 533 F.2d 713, 717-18 (1st Cir. 1976), and United States v.
DeWolf, 696 F.2d 1, 3 (1st Cir. 1982). See generally Carpenters Local
Union No. 26 v. United States Fidelity & Guar. Co., 215 F.3d 136, 138
& n.1 (1st Cir. 2000). We disagree with the district court's ruling in
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concerning subornation of perjury was not harmless error and required
reversal and a new trial). Our conclusion is in accord with the Second
Circuit's pre-Moulton decision in Mealer v. Jones, 741 F.2d 1451, 1453-
55 (2d Cir. 1984).
The government also contends that statements pertaining to
subornation of perjury are unprotected by the Sixth Amendment. Citing
Nix v. Whiteside, 475 U.S. 157, 158 (1986), the government argues, in
particular, that, since Bender's trial attorney would have had to
report his client's subornation of perjury had he known of it, Bender's
statements are not covered by the Sixth Amendment's right to counsel.
The argument confuses two different concepts: the doctrine of right to
counsel under the Sixth Amendment and the doctrine of attorney-client
privilege (and exceptions to that doctrine for crime or fraud). These
are two distinct doctrines serving different purposes. The right to
counsel is not defeated if a particular communication is not
privileged. Many activities of counsel are not privileged, as in
examining witnesses at trial; others are privileged, as in giving
confidential advice. The logic of the government's argument is that
because an activity is not privileged, there is no right to counsel.
To articulate that logic is to show its weakness. The right to counsel
applies in both privileged and non-privileged situations. This is so
Burke v. Vose, 847 F. Supp. 256, 261-64 (D.R.I. 1993), on which the
government relies.
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regardless of whether a communication falls within the exception to a
privilege. Indeed, the privilege doctrine, and so the exceptions to
it, assume there is an attorney-client relationship. Whiteside, an
ineffective assistance of counsel case, also plainly does not apply.
The Sixth Amendment prohibits the government from eliciting
incriminating statements no matter their content. That defense counsel
might be under an obligation not to participate in a client's
subornation of perjury does not excuse the government from its
obligation to interact with the accused through the medium of counsel.
Indeed, the government's argument can be stood on its head: given
counsel's ethical obligation to advise a client not to commit perjury,
the client's Sixth Amendment right to counsel is particularly important
in situations like the one this case presents.
The government argues, as well, that suppression is illogical
because the district court found that the government did nothing wrong.
The same argument was presented and rejected in both Massiah and
Moulton. See Massiah, 377 U.S. at 207; Moulton, 474 U.S. at 179.
Though the government might be investigating entirely separate crimes,
"dual purposes may exist whenever police have more than one reason to
investigate someone." Moulton, 474 U.S. at 179 n.15. That the
government might have other legitimate reasons for confronting a person
who is accused does not eliminate the violation of the right as it
pertains to the pending charges. See id. at 179-80; see also id. at
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180 ("To allow the admission of evidence obtained from the accused in
violation of his Sixth Amendment rights whenever the police assert an
alternative, legitimate reason for their surveillance invites abuse by
law enforcement personnel in the form of fabricated investigations and
risks the evisceration of the Sixth Amendment right recognized in
Massiah.").
As a variant of this same argument, the government contends
that the purpose of suppression is to deter law enforcement officers
from violating constitutional rights by imposing the penalty of
suppression when they do. If the incriminating statements violate
constitutional rights only when the statements are sought in order to
be introduced as to pending charges, then the agents here violated no
constitutional rights in procuring the statements, and so there is no
rationale for suppression.4 There are at least two different responses.
First, even if the focus were on the agent and not the government as
4 The government says that if it is "free to use the statements
at a future prosecution, there must be no Sixth Amendment violation in
the very acquisition of the statements." Thus, "there should be no
Sixth Amendment violation in obtaining and using the statements at a
trial on pending charges." We have no occasion to rule on the premise;
the conclusion, however, does not follow. The Sixth Amendment does not
fasten itself irremovably from an incriminating statement, making that
statement either admissible or inadmissible for all time. Instead, the
Amendment, in this context, governs the interactions between the
government and the accused once the adversarial process has begun in a
particular case. In other words, "[t]he Sixth Amendment right . . . is
offense specific." McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).
Consequently, the same statements can be given differing constitutional
status depending on their relationship to a particular case.
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prosecutor, we do not live in a perfectly logical world but rather live
in one that is built on experience and accommodation of differing
interests. The tension the government identifies is inherent in what
Moulton calls "a sensible solution to a difficult problem." Id. at
179. Second, as one commentary has noted, "[i]n answer to such
criticisms, it might be observed that Massiah, after all, is grounded
in the Sixth Amendment right to counsel and thus should be assessed in
terms of its protection of that right instead of as some sort of
alternative to or extension of either Miranda or the voluntariness
test." 2 Wayne R. LaFave et al., Criminal Procedure 504 (2d ed. 1999).
Finally, the government argues that suppression is poor
policy because it "encourages defendants to suborn perjury, tamper with
witnesses, obstruct justice, and otherwise interfere with the truth-
finding function of the courts." As observed, the presence of counsel
may lessen instances of such conduct. And we doubt that defendants
will be more likely to suborn perjury or obstruct justice because of
our decision. Nothing prevents the government from prosecuting Bender
in a separate proceeding for subornation of perjury and the like. See
Moulton, 474 U.S. at 180 n.16; United States v. Walker, 148 F.3d 518,
528-30 (5th Cir. 1998). Nothing prevents the government from using
Bender's statements, if knowing and voluntary, for the purpose of
impeachment, if he testifies. See Michigan v. Harvey, 494 U.S. 344,
351 (1990). And nothing prevents the government from using these
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statements at sentencing if Bender is tried and convicted. See
U.S.S.G. § 3C1.1. The government might be reluctant to prosecute
Bender for these new alleged crimes because of scarce resources or
because such a prosecution would depend on the statements of inmate
witnesses, who might lack credibility. But these considerations do not
outweigh the significant countervailing constitutional values.
III.
For these reasons, the judgment of the district court is
affirmed.
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