noting that "[a] deliberate attempt by the government to obtain defense strategy information or to otherwise interfere with the attorney-defendant relationship through the use of an undercover agent may constitute a per se violation of the Sixth Amendment"
How later courts described this case
- noting that "[a] deliberate attempt by the government to obtain defense strategy information or to otherwise interfere with the attorney-defendant relationship through the use of an undercover agent may constitute a per se violation of the Sixth Amendment"
- stating that possession by government of confidential information is presumed detrimental to defendant
- relying on precedent involving an undercover and passive government informant, Weatherford v. Bursey , 429 U.S. 545 , 97 S.Ct. 837 , 51 L.Ed.2d 30 (1977)
- “[O]nce the investigatory arm of the government has obtained information, that information may reasonably be assumed to have been passed on to other governmental organs responsible for prosecution.”
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge
(dissenting).
In my opinion the summary judgment of the district court should be affirmed. For reasons set forth in Judge Wilkey’s dissent in Briggs I (Briggs v. Goodwin), 569 F.2d 10, 46-61 (D.C.Cir.1977), cert. denied, 437 U.S. 904 , 98 S.Ct. 3089 , 57 L.Ed.2d 1133 (1978), I would rule that Goodwin was entitled to complete immunity as a witness. Moreover, appellants’ claims should be dismissed under Weatherford v. Bursey, 429 U.S. 545 , 97 S.Ct. 837 , 51 L.Ed.2d 30 (1977) 1 (an undercover agent’s knowledge of de *498 fense discussions that is not communicated to the prosecutor does not violate any constitutional right of the defendant). I thus dissent.
In addition, I am also unable to agree with this court’s earlier decision that ruled Goodwin was not entitled to prosecutorial immunity. Briggs v. Goodwin, supra. As an employee of the Department of Justice, he was designated by the Attorney General to prosecute the case, and that constituted his entire authority. Our earlier decision fails to recognize the normal obligations of a prosecutor and draws an overly fine distinction in artifically bifurcating his role into “advocate” and “investigator” for the purpose of deciding whether immunity should attach.
. The attempt of the majority in its footnote 23 to distinguish Weatherford is contradicted by the record. It rests on the unsubstantiated assumption that information on defense strategies passed to the FBI, and thence “routinely” to the Justice Department, see majority op. at 493, necessarily made its way to Goodwin himself. But the Department of Justice is a very large organization and the trial court specifically found that
the evidence supporting plaintiffs’ assertion that Poe was cognizant of some defense strategy also indicates that Goodwin was not privy to this information when he made his assertion to Judge Middlebrooks. Finally, the assertions of defense counsel on July 12th indicating that Poe was not being represented supported Goodwin’s belief that Poe was in fact not represented by counsel. [JA 605.] It is clear that Goodwin did not perjure himself on July 13, 1972.
(JA 5) (emphasis added).
Since the suit against Goodwin turns on allegations that he was privy to the information when testifying, summary judgment was appropriate because there was no showing that a genuine issue of material fact remained as to whether appellants’ Sixth Amendment rights had been violated by that testimony.
As for the claim that appellants’ Sixth Amendment rights were violated by Goodwin’s failure to advise them of subsequent information allegedly received concerning informants, the record does not contain a shred of specific evidence that Goodwin actually received such information. If the prosecutor did not receive such information, the defendants were not harmed. The majority refers, however, to the deposition testimony of FBI agent Pence, who stated that he routinely passed on all information to Goodwin. Majority op. at n. 23. But the gap between routine distribution and actual receipt of specific reports can only be bridged by speculation. While “inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing [a summary judgment] motion,” United States v. Diebold, Inc., 369 U.S. 654, 655 , 82 S.Ct. 993, 994 , 8 L.Ed.2d 176 (1962) (per curiam), the majority confuses inference with speculation.