Gerald Eugene Stano v. Richard L. Dugger, Robert A. Butterworth

EDMONDSON, Circuit Judge,

concurring:

I concur in the judgment of the court, although I believe the case could have been easily decided otherwise. I write separately because I think this case will be back before us; and suggestions on our part might help the district judge and the parties to develop a complete record on the main issues.

This court remands for an evidentiary hearing on Stano’s claim under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). In particular, the district court needs to determine whether Detective Paul Crow was “part of the prosecution team in the Scharf case,” and whether he can be said to have acted under the authority of Brevard County Prosecutor Dean Moxley. The police department for which Crow works is not in the same judicial circuit as the circuit in which Moxley is a prosecutor. There is no obvious reason in fact or law to suggest that Crow was under the authority of or otherwise answerable to Moxley.

In Moore v. Illinois, 408 U.S. 786 , 92 S.Ct. 2562 , 33 L.Ed.2d 706 (1972), the prosecutor failed to turn over a prior police statement of a government witness who testified at trial. The Supreme Court said “[w]e know of no constitutional requirement that the prosecution make a complete and detailed accounting of all police and investigatory work on a case.” Moore, 408 U.S. at 795 , 92 S.Ct. at 2568 . In United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.1989), we held that Brady applies only to information possessed by the prosecutor or by someone over whom he has authority. We also wrote in United States v. Burroughs, 830 F.2d 1574 , 1579 n. 6 (11th Cir.1987), that the prosecution is not responsible for information known to a prosecution witness, but not in fact known to the prosecutor.

Accordingly, the district court needs to answer the following questions: (1) did the prosecutor (Moxley) who prosecuted Stano know of the collusion between Crow, Jacobson and McMillan; (2) did Crow in fact work for Moxley; (3) was Crow under the control or authority of Moxley; (4) did Crow have any significant role in developing the Scharf murder case for trial once he informed Manis of Stano’s confession.

I doubt that every peace officer in Florida is a member of every Florida prosecutor’s prosecution team. And I doubt that a police officer who testifies as a prosecution witness or simply cooperates with a prose *907 cutor automatically becomes part of the prosecution team. If information actually unknown to a prosecutor is to be imputed to the prosecutor, I suspect that some element of control or supervision on behalf of the prosecution must exist so that the police officer is truly an agent of the prosecutor. To hold otherwise is not to follow Brady , but to extend it substantially. I need not work all of this out today; but at the evidentiary hearing in this case, I hope that the district court will establish a particularized factual predicate to allow the applicable law to be developed in the light of concrete facts instead of in a vacuum.

The language in United States v. Antone, 603 F.2d 566, 569-70 (5th Cir.1979), suggesting that a state police officer’s knowledge may be imputable to a federal prosecutor, is dicta: relief was actually denied because the information supposedly withheld from the defendant was insufficiently important. Citation of Antone in today’s court opinion does not change that. Even Antone stressed concepts involving intimate cooperation, jurisdictional overlap and pooling of investigative energies. 603 F.2d at 569-70 . Thus, in addition to applying the term in this case, we must define the scope of the term “prosecution team” as a matter of law.

We also remand for further consideration on Stano’s claim under United States v. Henry, 447 U.S. 264 , 100 S.Ct. 2183 , 65 L.Ed.2d 115 (1980). On remand, I hope the attention of the lawyers and district court will focus on some specific points for factual development. In Henry , Henry was an inmate who told his incriminating story to Nichols, another inmate. The Supreme Court described the case as one where Henry was “in the company of a fellow inmate who [was] acting by prearrangement as a government agent.” Henry, 447 U.S. at 273 , 100 S.Ct. at 2188 . The main points are “prearrangement” and “government agent”.

In Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir.1987), we said: “we should keep in mind the duty that is imposed upon all citizens to report criminal activity to the appropriate authorities.” The Supreme Court has said “[t]his deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself, ... the criminal defendant no less than any other citizen is obliged to assist the authorities.” Roberts v. United States, 445 U.S. 552, 558 , 100 S.Ct. 1358, 1363 , 63 L.Ed.2d 622 (1980).

The essence of the Massiah v. United States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964), and Henry line of cases is to discourage secret interrogations that are in fact the “equivalent of direct police interrogation.” Kuhlmann v. Wilson, 477 U.S. 436 , 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986); Lightbourne, 829 F.2d at 1020-21 . In Henry , the Supreme Court stressed that the FBI singled out Henry as someone in whom they had an interest.

There is no allegation in this petition that Zacke received instructions from the police or from prosecutors to do anything about Stano — even to listen passively. The strongest allegation in the petition is that there is a note in the prosecutor’s file indicating that Zacke, the informant, was to be placed in the same cell with Stano; but this apparently never occurred. Such allegation, even if true, does not, as I understand it, support a finding of a Henry violation. The Supreme Court has said in Kuhlmann , “a defendant does not make out a violation of [the sixth amendment] right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police.” 477 U.S. at 459 , 106 S.Ct. at 2630 .

A proper application of Henry must reflect the general obligation of all citizens, including incarcerated citizens, to assist the police. Henry and Massiah show how very narrow is the exception to the general rule that all information brought to the police is usable. Time and time again, in eases such as Lightboume (inmate’s motives alone cannot make him police agent) and Harker v. State of Maryland, 800 F.2d 437 (4th Cir.1986) (prison informant was not government agent where he was not paid or acting under instruction or solicitation of government if he responds to general request for information), courts have *908 stressed the difference between being a government agent and a government informant. See, e.g., Alexander v. Connecticut, 876 F.2d 277 (2d Cir.1989); Brooks v. Kincheloe, 848 F.2d 940 (9th Cir.1988); United States v. Taylor, 800 F.2d 1012 (10th Cir.1986); United States v. Calder, 641 F.2d 76 (2d Cir.1981).

The use of inmate informants is generally constitutionally permissible even if they actively elicit information and even if they do so in the belief that they will be rewarded by the government for collecting information. I think the sole exception may be where there has been a presolicitation of an informant by the government, focusing on another particular inmate as the target and with compensation agreed to in advance, so that the informing inmate is acting just as if he were a police officer interrogating the inmate.

Henry seems narrow and can and ought to be confined to its facts. So, I hope the parties will develop in detail the facts, including (1) what, if anything, Zacke was told by state officers to do about Stano in particular and when and by whom he was told to do it; (2) what was the subject and scope of the agreement Zacke and Moxley reached in April 1983 about Zacke’s assistance when Zacke definitely agreed to assist in regard to the prosecution of the killers of Mr. Hunt; and (3) did Zacke “deliberately elicit” incriminating statements from Stano.