Petition — Muzychka v. United States

83-1714

No.

a

Office - Supreme Court, U.S.

FILED

APR 19 a4

IN THE LEXANDER L. STEVAS,

SUPREME COURT OF THE UNITED SRATES:=<___|

October Term, 1983

EUGENE MUZYCHKA,

Petitioner

Vv.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTIORARI

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

NEIL E. JOKELSON

JEREMY T. ROSS

230 S. Broad Street

18th Floor

Philadelphia, Pa. 19102

(215) 735-7556

Attorneys for Petitioner

Of Counsel:

NICHOLAS J. NASTASI

241 South 7th Street

Philadelphia, Pa. 19106

(215) 625-2991

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA 19123 (215) 236-2000

QUESTION PRESENTED

1. Does the Sixth Amendment right to counsel at-

tach where, pursuant to a federal investigation, agents of

the Government direct State law enforcement officers to

make an arrest, when the subject is advised of, elects,

but nevertheless is denied an opportunity to consult with

counsel?

TABLE OF CONTENTS

Page

EE en i

oo Sv ce va e-w se ce ba oe ene ame iii

i Ld 6 nneG 6000 ces thcedee bees 1

Ci, gatas Cae seb 0i4'6 aban abe 4 Srebds 2

Constitutional Provision Involved .............. 3

a 4

Reason for Granting the Writ ................. 8

I. The Sixth Amendment Right to Counsel atta-

ches where, pursuant to a federal investiga-

tion, agents of the Government direct State

law enforcement officers to make an arrest,

when the subject is advised of, elects, but never-

theless is denied an opportunity to consult

ET ee seas op oe. a ve ve he s.0-0s és 8

I adhe a a'e'k 0.6.5 de ecnes ou deees 14

Appendix:

District Court’s Bench Opinion ............ A-1

Court of Appeals Opinion ................ A-3

Order Sur Petition for Rehearing ......... A-23

TABLE OF AUTHORITIES

Cases Cited: Page

Brewer v. Williams, 430 U.S. 387 (1977) ....... 8

Lomax v. Alabama, 629 F.2d 413 (5th Cir. 1989),

cert. den. 450 U.S. 1002 (1981)............ 12

Massiah v. United States, 377 U.S. 201 (1964) .. 8

United States v. Brown, 699 F.2d 585 (2d Cir.

EE etutyivore teed care ueete eres 11

United States ex. rel. Burton v. Cuyler, 439 F.Supp.

1173 (E.D. Pa. 1977), aff d. 582 F.2d 1278 (3d

ED 6 sin 6 coat Cv kh BRO ORR Oe ka 9, 10

United States v. Kenny, 645 F.2d 1323 (9th Cir.

1981), cert. den. 452 U.S. 920(1981) ...... 2)

United States v. Lilla, 534 F.Supp. 1247 (N.D.N.Y.

SN 5-4 og bck bo wee be een ee 9, 10

United States v. Matthews, 488 F.Supp. 374 (D.

Ss aes perce a eer ee ge G

United States v. Moskow, 588 F.2d 882 (3d Cir.

EE oc od 00d oth 0.6 ORL ee 4

United States v. Nashawaty, 571 F.2d 71 (lst Cir.

EN Tb whi ido akin ee ee ee Wa ee eee q

United States v. Sam Goody, Inc., 506 F.Supp. 380

Sb wdc akc ee eh awd ee ean Z)

United States v. Zazzara, 626 F.2d 135 (9th Cir.

NS og cin aU ens i ole Sgt a ea ak, i)

Statutes Cited:

Oe A er rat 4

ds SE Fs hn we hee ewe ck ac eee 4

Be Ue, SED. se ears sev steessesev tees 4

TABLE OF AUTHORITIES — (Continued)

Federal Rules Cited:

PE. IED ec obs oo 2 awe cesses

Constitutional Provisions Cited:

ce ee SO i os aa Chew bck

OTHER AUTHORITIES CITED

Kamisar, Brewer v. Williams, Massiah, and

Miranda: What is “Interrogation”? When Does

it Matter? 67 Geo.L.J. 1 (1978) ...........

White, Rhode Island v. Innis: The Significance of a

Suspect’s Assertion of the Right to Counsel 17

Am. Crim. L.Rev. 53 (1G78) ..... ccceeeeee

iv

13

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1983

EUGENE MUZYCHKA,

Petitioner

v.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

TO 1HE HONORABLE CHIEF JUSTICE AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT:

Petitioner seeks a writ certiorari to review the judg-

ment of the United States Court of Appeals for the Third

Circuit in this case.

OPINIONS BELOW

In the United States District Court, although no

opinion was filed, a motion to suppress tape recordings

]

2

containing petitioner’s inculpatory statements made

after his arrest was denied from the bench (App. A-1).

Following judgment of sentence a direct appeal was

taken to the Court of Appeals.

The opinion of the United States Court of Appeals

for the Third Circuit is reported at 725 F.2d 1061 (App.

A-3). The court denied a request for rehearing in banc

by an Order dated February 22, 1984 (App. A-23) which

is as yet unreported.

JURISDICTION

A judgment of sentence was imposed on March 29,

1983 by the United States District Court from which di-

rect appeal was taken to the Court of Appeals.

The judgment of the Court of Appeals was entered

with opinion on January 23, 1983 (App. A-3). A Petition

for Rehearing in banc was denied on February 22, 1984

(App. A-23). The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

3

CONSTITUTIONAL PROVISION INVOLVED

I. The Sixth Amendment to the Constitution of the

United States provides in pertinent part:

“In all criminal prosecutions, the accused shall

enjoy the right. .. to have the Assistance of Coun-

sel for his defense.”

4

STATEMENT

This federal criminal prosecution rests on a four

count indictment (C.A. App. 4a) charging petitioner,

Eugene Muzychka, with violations of 21 U.S.C.

§§841(a)(1) and 846, and 18 U.S.C. §1952.' The con-

trolled substance alleged was phenyl-2-propanone (P-2-

P), a precursor chemical used in the manufacture of

methamphetamine. Among those named in the indict-

ment were unindicted coconspirators Ronald Raiton

(“Raiton”) and Jack Naiman (“Naiman”).

Following denial by the District Court of a motion to

suppress evidence (App. A-1), petitioner entered a con-

ditional plea of guilty pursuant to United States v.

Moskow, 588 F.2d 882, 884-90 (3d Cir. 1978), reserving

the right to challenge on appeal the District Court’s rul-

ing on the suppression motion (C.A. App. 1126a-1143a).

By Opinion and Order filed January 23, 1984 (App. A-3),

the United States Court of Appeals for the Third Circuit

affirmed the District Court’s ruling

The essential facts of this case are simple and clear.

By the end of March, 1981 unindicted coconspirator

1. 21 U.S.C. §841(a)(1) provides that “it shall be unlawful for

any person knowingly or intentionally — (1) to manufacture, dis-

tribute, or dispense, . . . a controlled substance. . . .” Section 846

makes unlawful an attempt or conspiracy to violate Section 841.

18 U.S.C. §1952 provides in pertinent part:

(a) Whoever travels in interstate or foreign commerce or

uses any facility in interstate or foreign commerce, including

the mail, with intent to —

(3) otherwise promote, manage, establish, carry on,

or facilitate the promotion, management, establishment, or

carrying on, of any unlawful activity, and thereafter per-

forms or attempts to perform any of the acts specified in

subparagraphs (1), (2), and (3), shall be fined not more

than $10,000 or imprisoned for not more than five years, or

both.

(b) As used in this section “unlawful activity” means (1)

any business enterprise involving . . . narcotics or controlled

substances... .

5

Naiman had been arrested by agents of the federal Drug

Enforcement Administration (“DEA”) on unrelated drug

charges. As a consequence, he began cooperating with

the Government, pursuant to a plea agreement, by as-

sisting in making cases against other persons suspected

of illegal drug activity (C.A. App. 22a-27a). In April of

1981, at the direction of the DEA, Naiman approached

petitioner in Philadelphia for the purpose of arranging a

sale of P-2-P to petitioner.

On May 18, 1981 petitioner and Naiman, while un-

der DEA surveillance, travelled to Fort Lauderdale, Flor-

ida both for the purpose of taking delivery of the P-2-P

which Naiman had agreed to sell to petitioner, and in or-

der to make a case against Raiton, Naiman’s supplier,

whom at all relevant times was a target of the DEA (C.A.

App. 807a). Petitioner did not know Raiton at this time.

An Assistant United States Attorney from Philadel-

phia, who participated in the initial decision to enter into

the agreement of cooperation with Naiman, also knew of

the planned trip to Florida and the DEA’s plan to arrest

petitioner in Florida and seize the P-2-P. (C.A. App. 39a-

53a, 800a-804a, 837a-839a; 847a).

Upon arriving in Fort Lauderdale, while petitioner

remained at the airport, Naiman met with Raiton and re-

ceived from him eight gallons of P-2-P which Naiman

placed in the trunk of a rental car. Naiman returned to

the airport and picked up petitioner, and shortly there-

after, they were stopped by Fort Lauderdale police, who

were acting at the behest of the DEA agents who had fol-

lowed petitioner and Naiman to Fort Lauderdale from

Philadelphia. The pair were told that they were under ar-

rest for having P-2-P in the car. Petitioner was

2. Unknown to the DEA, which previously had rejected

Raiton's offer to cooperate with it, Raiton at this time was informally

and selectively cooperating with the Federal Bureau of Investiga-

tion (“FBI”) in making cases against other persons suspected of il-

legal drug activity. Nevertheless, as the events of May 18, 1981 re-

vealed, Raiton himself continued to traffic in illegal drugs.

6

handcuffed and searched at the scene, asked to consent

to a search of the car, was informed of his right to remain

silent and of his right to consult with an attorney, and

was asked if he wanted to answer any questions. He did

not consent to a search of the car, declined to answer

questions, and asked to speak to a lawyer. Petitioner was

then taken to Fort Lauderdale police headquarters

where again he was informed of his right to remain si-

lent and his right to consult with an attorney and again

he was asked if he wished to answer any questions.

Again he declined to answer questions and again he

asked to speak to a lawyer. After approximately three

hours, during which time petitioner never was given the

opportunity to consult with counsel, he and Naiman

were released without explanation and they returned to

Philadelphia. (C.A. App. 1011a-1021a).

The next day, May 19, 1981, pursuant to a federal

search warrant, the DEA agenits opened the trunk of the

rental car and seized eight gallons of P-2-P. Shortly after

the return of petitioner and Naiman to Philadelphia the

DEA placed Naiman in hiding. Petitioner never received

a copy of the search warrant or the inventory of property

seized, as required by Fed.R.Crim.P. 41(d), nor was he

at any relevant time informed that the Florida arrest and

seizure occurred at the behest of federal authorities.

On June 10, 1981 Naiman testified before a grand

jury about the Florida events, thereby inculpating to-

gether petitioner and Raiton. The following day, June

11, 1981, Raiton entered into a written agreement with

the Government, through the offices of the FBI, which

formally obligated him to coc: 2rate in making cases

against suspected drug dealers. In return, the Govern-

ment promised to take into consideration the degree and

results of Raiton’s cooperation in determining what

charges should be brought against him pursuant to the

DEA’s investigation (C.A. App. 72a-75a). Accordingly, at

least as of June 11, 1981, the DEA investigation of

-

Raiton, and his Florida coconspirator. petitioner, had ter-

minated.

On June 24, 1981, at the behest of the FBI, Raiton

in Fort Lauderdale telephoned petitioner in Pennsylva-

nia. Raiton introduced himself to petitioner by asking if

petitioner had ever travelled to Florida with Naiman.

When petitioner answered affirmatively, Raiton encour-

aged him to go toa phone booth and return the call. Peti-

tioner did so and in the recorded return call, with en-

couragement from Raiton, petitioner inculpated himself

in the purchase of P-2-P from Naiman. Subsequent re-

corded conversations with Raiton in July and August of

1981 further inculpated petitioner.

8

REASON FOR GRANTING THE WRIT

i. The Sixth Amendment Right to Counsel Attaches

Where, Pursuant to a Federal Investigation, Agents of

the Government Direct State Law Enforcement Offi-

cers to Make an Arrest, When the Subject Is Advised

of, Elects, but Nevertheless Is Denied an Opportunity

to Consult with Counsel

This issue is both important and unsettled. As a fre-

quently recurring question of constitutional law the is-

sue in this case appears as one which is in confusion

amor.” the Circuit Courts of Appeals.

Petitioner contends that his Florida arrest triggered

his Sixth Amendment right to counsel so as to render his

post-arrest interrogation by Ration inadmissible under

Massiah v. United States, 377 U.S. 201 (1964). The de-

cisions of this Court, as applied to the circumstances of

this and numerous similar cases, leave doubt as to where

the line is drawn to determine when the Sixth Amend-

ment right to counsel attaches. The result has been a

confusing and contradictory welter of opinions at both

the Court of Appeals and District Court levels. As Justice

Stewart noted with some understatement in Brewer v.

Williams, 430 U.S. 387, 388 (1977), “[t]here has occa-

sionally been a difference of opinion within the Court as

to the peripheral scope of [the Sixth Amendment rigiit to

counsel] ... Whatever else it may mean, the right to

counsel granted by the Sixth and Fourteenth Amend-

ments means at least that a person is entitled to the help

of a lawyer at or after the time that judicial proceedings

have been initiated against him . . .” (emphasis added).

The Third Circuit Court in the instant case, though

it found petitioner’s argument persuasive (App. A-11),

held that the Sixth Amendment right to counsel never

can be triggered by an arrest, no matter what the attend-

ant circumstances, since in its view “the development of

the Supreme Court's efforts toward control of police

9

methods of interrogation from Spano v. New York, 360

U.S. 315 (1959), through Miranda v. Arizona, 384 U.S.

436 (1966), and thereafter,” compelled the conclusion

that absent judicial proceedings there is no Sixth

Amendment right to counsel (App. A-12). Nevertheless,

as the Court acknowledged in its opinion, (App. A-19,

n.9), courts in other circuits have suggested that under

certain circumstances the right to counsel attaches

upon arrest: United States v. Kenny, 645 F.2d 1323 (9th

Cir. 1981), cert. den. 452 U.S. 920 (1981); United States

v. Zazzara, 626 F.2d 135 (9th Cir. 1980); United States

v. Nashawaty, 571 F.2d 71 (1st Cir. 1978); United

States v. Lilla, 534 F.Supp. 1247 (N.D.N.Y. 1982);

United States v. Sam Goody, Inc., 506 F.Supp. 380

(E.D.N.Y. 1981); United States v. Matthews, 488

F.Supp. 374 (D. Neb. 1980). Some of these cases merely

recite the rule without discussion*® while others fully

analyze the policies behind the right to counsel in reach-

ing their results. In United States ex rel. Burton v.

Cuyler, 439 F.Supp. 1173 (E.D. Pa. 1977), affd 582

F.2d 1278 (3d Cir. 1978), for example, the Court ana-

lyzed whether the relator had a right to lineup counsel

3. Kenny — “Where a case is still in the investigative stage, or

in the absence of a person's being charged, arrested, or indicted,

such adversary proceedings have not yet commenced and thus no

right to counsel has attached.” 645 F.2d at 1338 (emphasis added);

Zazzara — “Until the defendant has been arrested or indicted,

whatever suspicions the police might have, the defendant is not an

‘accused’, and, therefore, Massiah is inapplicable.” 626 F.2d at 138

(emphasis added); Nashawaty — “Until one or the other of those

two events [arrest or indictment] has occurred, the suspect has not

been ‘accused’ of a crime by the Government. . ." 571 F.2d at 75

(emphasis added); Sam Goody — “|I|ndictment — or arrest, if it

occurs prior to indictment — is the critical moment after which the

strictures of Massiah, supra, and its progeny apply.” 506 F.Supp. at

394 (emphasis added); Matthews — “Until either a suspect has

been arrested, or judicial proceedings initiated, however, it has

been held that the Sixth Amendment right to counsel does not at-

tach |citing Nashawaty].” 488 F.Supp. at 380-81 (emphasis added).

10

following his state arrest and held that he did under the

circumstances of that case:

!C]onsistent with the focus of Kirby on the initiation

of a prosecution, we take into account the other cir-

cumstances prior to the lineup which suggest that

the true reason for holding the lineup was to en-

hance the prosecution’s evidence, and that no inves-

tigative purpose would have been impeded by insur-

ing tha: relator had an opportunity to have counsel

present...

[B]y the time of the lineup, the [Government] had

“committed itself io prosecute, and ... the adverse

positions of government and defendant [had] solidi-

fied.” Kirby, 406 U.S. at 689, 92 S.Ct. at 1882.

Id. 439 F.Supp. at 1181 (emphasis added).

The identical analysis applies to the instant case.

There was no investigative purpose to be served by the

Florida arrest since the Government, through Naiman,

knew everything that was going to happen before it hap-

pencd and observed every action which petitioner,

Naiman, and Raiton took from the respective moments

they arrived at the Fort Lauderdale airport. The only

purpose of the arrest was to seize the corpus delicti of

the crime charged and to interrogate petitioner, who

twice declined to be interrogated and who asked instead

to speak to a lawyer.

A similar situation arose in United States v. Lilla,

534 F.Supp. 1247 (N.D.N.Y. 1982), where the Court

held that statements taken from the defendants follow-

ing their arrests pursuant to warrants, but before indict-

ment, violated the Sixth Amendment right to counsel.

The Court noted that the general rule was that the filing

of a felony complaint ordinarily did not trigger the right

to counsel, but:

Here, however, it is apparent that the law en-

forcement process had shifted from investigatory to

accusatory, in the sense that both defendants

11

seemed to have been the focus of federal grand jury

proceedings during the months preceding their ar-

rests and were otherwise the specific focus of sub-

stantial prosecution activities. Along with the in-

tent of officers to subject the defendants to

interrogation and to thereby elicit statements con-

cerning the offenses charged in the felony com-

plaints, this shift in law enforcement activities trig-

gered the defendants’ right to counsel under the

Sixth Amendment.

Id., 534 F.Supp. at 1280 (emphasis added).

Similarly, in United States v. Brown, 699 F.2d 585,

589 (2d Cir. 1983), the Second Circuit stated that

“[w]hen the government crosses the line from the inves-

tigatory to the accusatory stage {citing Lilla, supra] the

Sixth Amendment requires that the accused have the

assistance of counsel .. .,” and heid that the defendant’s

Sixth Amendment rights were violated because, inter

alia, the facts of the case left “no doubt that Shea [F.B.I.

agent] did not have an investigative purpose in arrang-

ing this pre-arraignment ‘detour’ of Brown [defendant]

for interrogation in the basement of the U.S. Marshal's

Office, .. . but was seeking to elicit an uncounseled con-

fession, a practice we have repeatedly disapproved.” Id.,

699 F.2d at 589 (citations omitted; emphasis added).

This was precisely the situation in the instant case,

where petitioner’s telephone interrogation by Raiton and

the FBI, commencing June 24, 1981, occurred at least

fifteen days after the DEA had closed its investigation of

the Florida events. The investigation closed since the

DEA had made its case against both petitioner and

Raiton upon the May 18 surveillance and seizure of P-2-

P, and upon Naiman’s apearance before the grand jury

on June 10.4 Raiton’s telephone calls of June 24 and

4. Raiton’s June 11 written agreement with the Government

ac*ordingly reflected his understanding that the Government “had”

him with respect to Florida. Petitioner had no such understanding

since the Government intentionally kept him ignorant of the true

nature of the Florida events, see p. 5-6, supra.

=e

12

thereafter accordingly had no investigative purpose

whatsoever. Rather, those calls reflected the desire of

the FBI to subject petitioner to surreptitious interroga-

tion and thereby elicit the uncounseled confession

which petitioner declined to give at the scene of his

arrest.

In Lomax v. Alabama, 629 F.2d 413 (5th Cir. 1980),

cert. den. 450 U.S. 1002 (1981), the Court held that the

petitioner's right to counsel had not attached upon the

issuance of a warrant for his arrest where the prosecu-

tor’s office was completely uninvolved with the issuance

of the warrant or the arrest itself. The prosecutor had not

filed an accusatory instrument against the arrested

individual or . . . become involved in the investiga-

tion of the accused.

... [T)here is nothing in the records of the state

court proceedings or the proceedings below that in-

dicates any involvement of the state’s prosecutorial

forces at the time the warrant was issued: there is

no evidence of a commitment to pursue prosecution

or of an awareness of petitioner’s impending

arrest ... Absent proof of significant prosecutorial

involvement in procuring an arrest warrant, the

arrest must be characterized as purely investiga-

tory — the forces of the state have not yet solidified

in a position adverse to that of the accused.

Id., at 415-16 (footnote omitted; emphasis added).

In the instant case, by contrast, the Government's

prosecutorial forces in the United States Attorney's Of-

fice in Philadelphia were heavily involved in the investi-

gation and certainly had committed themselves to pros-

ecute petitioner. It is clear that if petitioner had acceded

to the Government's attempt to interrogate him in Flor-

ida, and had confessed to Fort Lauderdale police and/or

DEA agents instead of asking to speak with a lawyer, he

would not have been released the same afternoon with-

out explanation, but rather would have been subject im-

mediately to the more formal procedures of a prosecu-

13

tion which the Government instead delayed. The delay

served its purpose; in the interim petitioner had con-

fessed to Raiton instead of to the Fort Lauderdale police

or the DEA.

In addition to the above case law, which is in opposi-

tion to the Circuit Court opinion in the instant case,

scholars support petitioner's contention that his Sixth

Amendment right to counsel attached as of his Florida

arrest. Professor Welsh White, in analyzing the policies

behind the Fifth and Sixth Amendments in light of the

realities of modern police practice, urges the following as

to when the right to counsel should attach:

A consideration of the underlying interests at

stake suggest the conclusion that the sixth amend-

ment right under Massiah should be triggered

whenever the police give a suspect the Miranda

warnings and the suspect responds by asserting his

right to counsel... Since the police will often be

completely convinced of the suspect's guilt at the

time of arrest, a formal arraignment or indictment

will not necessarily alter either their perception of

their relationship to the suspect or the tactics they

will be likely to employ in seeking to elicit a state-

ment...

White, Rhode Island v. Innis: The Significance of a Sus-

pect’s Assertion of the Right to Counsel, 17

Am.Crim.L. Rev. 53, 57-58 (1979) (emphasis added).

Professor Yale Kamisar concurs:

A forceful argument can be made that once a

suspect has specifically asserted his “Miranda right

to counsel” he is essentially in the same position as

one whose “Massiah right to counsel” has attached.

For even though attempts to “induce” a suspect to

talk or to “elicit” statements from him may not

amount to “interrogation” within the meaning of

Miranda, they may nevertheless constitute a failure

to “respect” or “honor” the exercise of Miranda

14

rights — or amount to “trickling]"” or “cajol{ing]”

one who has asserted his rights into waiving them.

See Miranda v. Arizona, 384 U.S. at 476. Thus the

argument would run, once a suspect has asserted

his right to counsel, the “second level” Miranda

safeguards shield him from “secret agent” activity

designed to obtain incriminating statements from

him... just as much as the Massiah doctrine does

once adversary judicial proceedings have com-

menced against a suspect.

Kamisar, Brewer v. Williams, Massiah and Miranda:

What is “Interrogation?” When Does it Matter? 67

Geo.L.J. 1, 78 (n. 461) (1978) (emphasis added).

Accordingly, a writ of certiorari should be granted in

this case to allow this Court to settle this significant

question of constitutional law by announcing a clear and

workable rule as to when the right to counsel attaches.

This is necessary in order to give guidance to lower

courts, to prosecutors, to defense counsel, and to law en-

forcement authorities, who presently labor under the

confusing and conflicting rules noted above.

CONCLUSION

The petition for Writ of Certiorari should be

granted.

Respectfully submitted,

Neil E. Jokelson, Esquire

Jeremy T. Ross, Esquire

Counsel for Petitioner

Of Counsel:

Nicholas J. Nastasi, Esquire

APPENDIX

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

Criminal No. 82-18

UNITED STATES OF AMERICA

v.

EUGENE MUZYCHKA

BENCH OPINION OF THE

HONORABLE JOSEPH L. McGLYNN, JR.

December 15, 1982

There is no question in my mind that the govern-

ment can’t send an informant to a guy that has been ar-

rested for handling P-2-P...

The Massiah issue is a much closer issue. There’s

no question in my mind that when Mr. Muzychka was

arrested on May 18, the arresting officers were operating

under the supervision so to speak of the federal Drug

Enforcement people; that they were in effect making the

decisions; that at the time of the arrest, as Mr.

Muzychka testified, that he was told he was under arrest

for possession of P2P; that he was taken to the cell,

taken to the station house, handcuffed, he was given his

constitutional warnings, but that he was later dis-

charged —- was not charged with any drug violation, but

he was given a traffic citation.

It’s a close case, and I certainly don’t want to let it

turn on the issue of whether or not counsel attaches at

that time. I think the issue turns on whether counsel at-

tached at that time is basically a legal issue but I think

there are some additional facts which have to be decided

which I think are controlling, and that is the fact of

whether or not this was a device operated by the govern-

ment through their informants, or the people with whom

they are working, to elicit information from Mr.

A-1

A-2

Muzychka which would be detrimental to his case, that

is, seeking information without previously advising him

of his right to counsel and so forth.

I think the way I read the evidence, I think there’s

sufficient evidence in the record from which I can draw

an inference, and this is the only way I can reconcile the

testimony, I can draw an inference from the record as

it’s presented to me that Mr. Muzychka, after the experi-

ence that he had in Florida, was looking for Mr. Naiman,

or a person with whom Mr. Naiman was working, and

because of the amount of money which he lost, which I

believe at that point was some $20,000, or may have

been $47,000, I’m not sure at this point, but that he

went to the office of the enterprises which were pre-

viously operated by Mr. Raiton on Cottman Street look-

ing for the person, either Naiman or the person with

whom Naiman was dealing; that that is what triggered

the contact between Raiton and Mr. Muzychka; that Mr.

Raiton, however he got the information, was advised

that Mr. Muzychka was looking not necessarily for him,

but was looking for somebody in connection with this

thing that happened in Florida, and that as a result of

that, Mr. Raiton called Mr. Muzychka, and the conversa-

tion of June 24, 1981 ensued.

So on that basis I rule this does not come within the

proscription of Massiah and I'll deny the motion.

A-3

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 83-1246

UNITED STATES OF AMERICA

v.

EUGENE MUZYCHKA,

Appellant

(D.C. Criminal No. 82-00018)

ON 4PPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

Argued: November 28, 1983

Before: GIBBONS and SLOVITER., Circuit Judges

and CALDWELL, District Judge*

(Opinion Filed: January 23, 1984)

NEIL E. JOKELSON, ESQ. (Argued)

JEREMY T. ROSS, ESQ.

215 South Broad Street

Suite 60l

Philadelphia. PA 19107

Attorneys for Appellant

*Hon.William W. Caldwell. United States District Judge for (he

Middle District of Pennsylvania. sitting ov designation.

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EDWARD S. G. DENNIS, JR.

United States Attorney

WALTER S. BATTY, JR.

Assistant U.S. Attorney

Chief of Appeais

WILLIAM B. CARR, JR. (Argued)

Assistant U.S. Attorney

Room 3310, United States Courthouse

60! Market Street

Philadelphia, PA 19106

Attorneys for Appellee

GIBBONS, Circuit Judge:

Eugene Muzychka appeals from a judgment of

sentence imposed following a conditional guilty plea to

charges of violating 21 U.S.C. §§ 84l(a)(1), 846 (1982) and

18 U.S.C. § 1952 (1982).' Muzychka’s plea reserved the

right to object on appeal to the district court's rulings on

motions to suppress evidence. See United States v.

Moskow, 588 F.2d 882, 884-90 (3d Cir. 1978).

Muzychka contended (1) that Massiah v. United States.

377 U.S. 201 (1964), required the suppression of certain

1. 21U.S.C. § 841(aX1) (1982) provides that it “shall be unlawful

for any person knowingly or intentionally -- (1) to manufacture,

distribute, or dispense. or possess with intent to manufacture,

distribute, or dispense, a controlled substance... .” Section 846

makes unlawful an attempt or conspiracy to violate section 84].

18 U.S.C. § 1952 (1982) provides in pertinent part:

(a) Whoever travels in interstate or foreign

commerce or uses any facility in interstate or foreign

commerce, including the mail. with intent to --

(1) distribute the proceeds of any unlawful activity: or

(2) commit any crime of violence to further any unlawful

activity: or

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evidence obtained by the government after May 18, 198],

and (2) that United States v. Starks, 515 F.2d ll2 (3d Cir.

1975), and Government of the Virgin Islands v.

Testamark, 570 F.2d 1162 (3d Cir. 1978), required the

suppression of other evidence obtained prior to that

date. The trial court denied both motions. We agree with

those rulings, and we affirm.

I.

Muzychka’s difficulties with the law grow out of his

dealings with Jack Naiman and Ronald Raiton. Those

dealings occurred, unfortunately for Muzychka, at

times when both Naiman and Raiton were cooperating

with the government by distributing phenyl-2-

propanone (P-2-P) to customers who would use that

substance in the manufacture of methamphetamine, a

controlled substance. By the spring of 1981, both Raiton

and Naiman had been arrested on drug charges and

were cooperating, pursuant to plea agreements, in

obtaining evidence against potential P-2-P purchasers.

In April of 1981, Naiman approached Muzychka in

Philadelphia for the purpose of arranging a sale of P-2-P.

On May 6 they met and, in a conversation tape recorded

by Naiman, Muzychka agreed to purchase twelve gallons

of P-2-P. On May 14 Muzychka delivered to Naiman

(3) otherwise promote, manage. establish, carry on, or

facilitate the promotion, management, establishment, or

carrying on, of any unlawful activity.

and thereafter performs or attempts to perform any of the acts

specified in subparagraphs (1), (2). and (3), shall be fined not

more than %10,.000 or imprisoned for not more than five years, or

both.

b) As used in this section “unlawful activity” means (1) any

business enterprise involving . . . narcotics or controlled

substances....

28 U.S.C. 8 1952 (1982).

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$20,000 in partial payment for the anticipated

twelve-gallon shipment. This May 14 conversation was

also recorded.

On May 18, Muzychka and Naiman traveled to Fort

Lauderdale, Florida, for the purpose of obtaining

delivery of twelve gallons of P-2-P from Naiman's

supplier, Ronald Raiton. At that time Muzychka did not

yet know Raiton. Raiton could only deliver eight gallons,

for which Muzychka paid Naiman an additional

$18,500. Naiman placed these eight gallons of P-2-P in

the trunk of a rented car which Muzychka intended to

drive to Philadelphia.

Unknown to Muzychka, however, he and Naiman

were under surveillance by an agent of the Federal Drug

Enforcement Administration. That agent obtained the

cooperation of Fort Lauderdale police, who stopped the

rented car driven by Muzychka soon after it left the Fort

Lauderdale airport. Muzychka proved to have no driver's

license; Fort Lauderdale police officers then arrested

him and took him to the Fort Lauderdale police

headquarters. At the time of the arrest, police informed

Muzychka that he had been arrested for possession of

P-2-P. Although Muzychka was detained for several

hours, Fort Lauderdale police later released him without

explanation. Florida authorities lodged no formal

charges against Muzychka -- either for driving without a

license or for possession of P-2-P. The rented car and its

contents were impounded.

Muzychka returned to Philadelphia, where on June

24, 1981 he received an unexpected telephone call from

Raiton. That call was inspired by officials of the Federal

Drug Enforcement Administration. Raiton introduced

himself to Muzychka by asking if Muzychka had ever

traveled to Florida with Naiman. When Muzychka

answered affirmatively, Raiton encouraged him to

return the call from a phone booth. Muzychka took the

bait and called Raiton. The return call was recorded. In

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this conversation, with encouragement from Raiton,

Muzychka incriminated himself in the purchase of

P-2-P from Naiman. Subsequent recorded telephone

conversations between Muzychka and Raiton during

July and August, 1981, further incriminated Muzychka.

Eventually Muzychka paid Raiton %28,000 for what

Raiton represented (falsely) to be an additional eight

gallons of P-2-P. It is undisputed that all the

conversations between Raiton and Muzychka were

made while Raiton was acting as an informant for the

Drug Enforcement Administr:‘ton. It is also

undisputed that all the conversations with Raiton

occurred after Muzychka’s arrest on May 18, 198].

II.

Muzychka contends that his interrogation by

Raiton violated the sixth amendment right recognized

in Massiah v. United States. 377 U.S. 201 (1964). That

case holds that the sixth amendment right to counsel

prohibits the use at trial against a defendant of

statements elicited by government agents in the

absence of counsel after that sixth amendment right

has attached. Muzychka urges that the Massiah right to

counsel attached on May 18, 1981, when the Drug

Enforcement Administration caused Fort Lauderdale

police to arrest him for possession of P-2-P obtained

from Naiman and Raiton. Although the government

urged that the Fort Lauderdale arrest was for a traffic

offense, the district court found as a fact that he had

been arrested for handling P-2-P. The government does

not dispute that finding.

In rejecting Muzychka’s Massiah contention.

however. the district court relied upon the fact that

Muzychka had initiated the contact with Raiton by

trying to reach Naiman. That effort. the court

concluded, sufficed to take the case out of the Massiah

rationale. The government does not attempt to defend

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this rationale, and we reject it. The undisputed facts are

that Raiton was cooperating with the government

pursuant to an agreement made on June ll, 1981, and

that he deliberately elicited evidence connecting

Muzychka with the P-2-P seized in Florida. As it

happens, the record shows that Raiton himself initiated

the call to Muzychka. However, even if Muzychka had

initiated the call to Raiton, that fact would have been

irrelevant. If the sixth amendment right has attached

and a government agent has deliberately elicited

information from the defendant in the absence of

counsel, then the fact that one or another of the parties

had initiated the conversation is immaterial. See

Beatty v. United States, 389 U.S. 45 (1967), rev'g per

curiam Beatty v. United States, 377 F.2d 181, 188-90

(Sth Cir. i967); United States v. Anderson, 523 F.2d

1192, 1196 n.3 (5th Cir. 1975); Kamisar, Brewer v.

Williams, Massiah, and Miranda: What is

“Interrogation”? When Does it Matter?, 67 Geo. L.J. |,

44 n.286 (1978). Thus we must decide whether the sixth

amendment right recognized in Massiah had attached

at the time Raiton recorded the telephone conversations

with Muzychka.

III.

On the basis of a search of a vessel, federal agents

arrested, arraigned, and later indicted Winston Massiah

for narcotics possesion. Massiah retained a lawyer.

pleaded not guilty. and was released on bail. Federal

officials also charged Jesse Colson with possession of

narcotics and with having conspired with Massiah.

Colson later permitted government agents to install a

radio transmitter under the seat of his automobile.

Massiah entered the automobile and made a number of

incriminating statements to Colson. A federal agent ina

nearby car equipped with a radio receiver overheard this

conversation and testified to Massiah’s remarks at trial.

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The Supreme Court held that the introduction of

Massiah’'s remarks at trial elicited from him after his

indictment and in the absence of counsel violated the

sixth amendment. Writing for the court, Justice

Stewart relied principally upon the concurring opinions

of four Justices? in Spano v. New York, 360 U.S. 315

(1959). These “four concurring Justices.” Justice

Stewart wrote, “pointed out that the Constitution

required reversal of the conviction upon the sole and

specific ground that the confession had been

deliberately elicited by the police after the defendant had

been indicted, and therefore at a time when he was

clearly entitled to a lawyer's help.” 377 U.S. at 204.

“Anything less, Justice Stewart reasoned, “might deny

a defendant ‘effective representation by counsel at the

only stage when legal aid and advice would help him.”

Id, quotingSpano v. New York. 360 U.S. 315, 326 (1959)

(Douglas, J.. concurring). Officials had “deliberately

elicited’ from Massiah, as they had from Spano,

incriminating remarks after those defendants had been

indicted. 377 U.S. at 204, 206. Consequently, the Court

concluded, the sixth amendment had been violated by

the introduction at trial of Massiah's incriminating

2. See Spano v. New York. 360 U.S. 315. 324 (1959) (Douglas.

J.. joined by Black & Brennan. J.J.): id. at 326 (Stewart. J.. joined by

Douglas & Brennan, J.J.).

3. Massiah may well have been subject to “interrogation” by

Colson -- albeit not “custodial” interrogation -- within what would

later become the meaning of Miranda v. Arizona. 384 U.S. 436 (1966).

However. such interrogation” within the meaning of Miranda ts not

required by Massiah. See United States v. Henry. 447 U.S. 264.

271-72 (1980). The operative language of Massiah is that of

“deliberate! elicittation|.” 377 U.S. at 204. 206: see Brewer v

Williams, 430 U.S. 387. 399 (1977). Conduct not rising to the level of

interrogation may nevertheless satisfy (he “deliberately elicited test

of Massiah. See Rhode Island v. Innis, 446 U.S. 291. 300 n.4 (1980):

Kamisar. supra. 67 Geo. L.J, at 6. 37-55

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words, “deliberately elicited from him after he had been

indicted and in the absence of his counsel." Id. at 206.

The Supreme Court has not confined the sixth

amendment right to counsel established in Massiah to

the period following an indictment. Rather, the Court

has held that the Massiah right to counsel attaches

upon the commencement of “adversary judicial criminal

proceedings” against an accused. See Kirby uv. Illinois,

406 U.S. 682, 689 (1972) (plurality opinion); Moore v.

Illinots, 434 U.S. 220, 226-27 (1977) (adopting language

of Kirbu plurality). Thus, it is settled that the sixth

amendment right to counsel attaches at an arraignment

if under the applicable rules important proceedings may

take place which could disadvantage the defendant. See

White v. Maryland, 373 U.S. 59, 59-60 (1963) (per

curiam); Hamilton v. Alabama, 368 U.S. 52, 53-54

(1961). Moreover, the sixth amendment right to counsel

attaches at a preliminary hearing. See Moore v. Illinois.

434 U.S. 220, 228 (1977); Coleman v. Alabama, 399

U.S. 1, 7-9 (1970). Rule 5(b) of the Federal Rules of

Criminal Procedure authorizes arraignments before a

United States Magistrate for certain misdemeanors.

The procedures specified in the Rules of Procedure for

the Trial of Minor Offenses before United States

Magistrates which are thereby applicable clearly

implicate the sixth amendment right to counsel. See

Fed. Mag. R. Crim. P. 2. Rule 5.1 provides for

preliminary examinations, and proceedings under that

rule fall within Coleman v. Alabama. See Fed. R. Crim.

P. 5.1(a) (right to cross-examine witnesses and

introduce evidence); 5.1(b) (defendant may be

discharged upon showing of no probable cause): Moore

v. Illinots, 434 U.S. 220, 228 (1977): Gerstein v. Pugh.

420 U.S. 103, 122-23 (1975) (right to counsel attaches

under these circumstances).‘ Thus, if Raiton's

4. The decision in United States v. Ammar. 714 F.2d 238 (3d

Cir. 1983), where we stated that the sixth amendment right to

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interrogation had occurred after arraignment,

preliminary hearing. or indictment, the Maissah rule

would apply. Raiton’s inducements to incrimination

were more than sufficient to satisfy the Massiah

standard, See United States v. Henry. 447 U.S. 264,

270-74 (1980); Brewer v. Williams, 430 U.S. 387,

399-401 (1977); note 3, supra.

In this instance, however, although Muzychka was

arrested for possession of P-2-P, he was neither

arraigned nor presented for preliminary hearing on that

or any other charge until after Raiton had elicited

information from him, Muzychka nevertheless urges

that the Massiah rule should apply to Raiton’'s

post-arrest elicitation of evidence in this case. He

presses two arguments in this respect. First, Muzychka

maintains that his arrest by Florida officers at the

behest of federal agents alone triggered the right to

counsel, He argues persuasively that once he was the

target of the Drug Enforcement Administration, he was

in need of counsel, especially counsel who might warn

him about self-incrimination, Second, Muzychka urges

that if his arrest alone did not trigger the right to

counsel, then the arrest coupled with the circumstances

of Raiton’s deception together triggered the sixth

amendment right. Muzychka notes that federal agents

tempted him to solicit information from Raiton by

counse! “does not extend to the pre-indictment period. “id. at 261, is

not to the contrary. In that case, the challenged conversation

occurred before Judith Ammars arrest, id. at 244, and therefore

before any Rule 5 | preliminary hearing. The statement inAmmar at

Pp 26ltowhich the government refers was made in the context of the

fact situation before the court and nothing tin that opinion indicates

that the court was enunciating a general proposition (hat the sixth

amendment right to counsel does not attach after a Rule 5.1

Preliminary hearing As indicated in the text above, tt is clear that

the VMassiah right ') counsel attaches after the first adversary

judicial proceeding

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concealing the circumstances surrounding Muzychka’'s

release by Florida officials after his arrest on May 18.

Absent a sixth amendment right to counsel,

Muzychka had no constitutional right to be free from

governmental investigation. See Hoffa v. United States.

385 U.S. 293, 300-04 (1966).* Thus his claim for

suppression of the Raiton recordings depends on

whether a sixth amendment right to counsel attached at

the time of his conversations with Raiton. In resolving

that issue it is appropriate to consider the development

of the Supreme Court's efforts toward control of police

methods of interrogation from Spano v, New York, 360

U.S. 315 (1959), through Miranda v, Arizona, 384 U.S

436 (1966), and thereafter.

A.

In 1959 a unanimous Supreme Court reversed a

conviction in a murder case on the ground that the state

trial court should not have adm.tted the defendant's

confession, The majority of the court, in an opinion by

Chief Justice Warren, held that admission of the

confession violated the fifth amendment privilege

against self-incrimination because, uncer the totality of

the circumstances, it was involuntary. Spano v, New

York, 360 U.S. 315, 323-24 (1959). Justices Black,

Douglas, Brennan, and Stewart conc arred in the

judgment, but on the separate ground that the

confession, whether voluntary or not, shou!d not have

been admitted because it had been obtained in the

absence of counsel after the sixth amendment right to

counsel had attached. In Spano the interrogation

oveurred after an indictment hac been returned, 360

5. No argument is made that Muzychka was ‘in custody’ or

was subject to ‘custodial interrogation within the meaning of

Miranda vy Arizona, 384 US. 436 (1966)

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U.S. at 325 (Douglas, J., concurring); id. at 327

(Stewart, J., concurring).

The position of Justices Black, Douglas, Brennan,

and Stewart -- that the sixth amendment prohibits the

use of statements obtained in the absence of counsel by

government interrogation after indictment -- did not

attract a majority in the Supreme Court until the

resignations, in the October 1961 Term, of Justices

Frankfurter and Whittaker. In the October 1963 Term,

the minority view inSpano v. New York became the law

when Chief Justice Warren and Justice Goldberg joined

Justice Stewart's opinion of the Court in Masstah v.

United States, 377 U.S. 201 (1964). Like Spano, the

governmental interrogation in Massiah occurred after

indictment. Since Massiah, it has been settled that the

sixth amendment right to counsel attaches no later

than indictment, and that statements deliberately

elicited by the government in the absence of counsel are

thereafter inadmissable. Justice Stewart's analysis in

Massiah, it must be noted, related the exclusion of such

evidence to the effectiveness of counsel after the

commencement of judicial proceedings, and not to the

reliability of the defendant's statements alone.

Voluntariness, and thus reliability, were for Justice

Stewart fifth amendment rather than sixth amendment

issues, at least until the commencement of judicial

proceedings. After that time, Justice Stewart saw the

right to counsel as a requisite for the protection of fifth

amendment values.

Although Spano involved post-indictment

interrogation, a plausible reading of the concurring

opinions in that case is that the four concurring

Justices were attempting to develop a per se rule

respecting interrogation, based on interference by the

police with the right to effective counsel, which would

have avoided the often difficult and time-consuming

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litigation over issues of voluntariness. After the Spano

minority became a majority in Massiah, Justice

Stewart's opinion of the Court, although written

narrowly, could plausibly have been read as addressing

this same concern by utilizing the sixth amendment

right to counsel as a basis for a per se prohibition

against interrogation by government agents when an

investigation became focused on an individual.

A month later, however, Justice Stewart made it

clear that this was not the direction in which he would

move, The occasion was his dissent in Escobedo v.

Illinois, 378 U.S. 478 (1964), in which Justice Stewart

distinguished Massiah because it involved ‘the

deliberate interrogation of a defendant after the

initiation of judicial proceedings against him.” 378

U.S, at 493 (Stewart, J.. dissenting) (emphasis added).

“Under our system of criminal justice.” he observed,

“the institution of formal, meaningful judicial

proceedings, by way of indictment, information, or

arraignment, marks the point at which a criminal

investigation has ended and adversary proceedings

have commenced. It is at this point that the

constitutional guarantees attach which pertain to a

criminal trial." Id. at 493-94.

The opinion of the Court in Escobedo v. Illinois.

written by Justice Goldberg. represents the high

watermark of the movement in the Supreme Court to

control police methods of interrogation through the

sixth amendment, Justice Goldberg noted that the

interrogation took place before the defendant was

indicted:

But in the context of this case, that fact should

make no difference. When petitioner requested, and

was denied, an opportunity to consult with his

lawyer, the investigation had ceased to be a general

investigation ot a.: unsolved crime. Spano v. New

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York, 360 U.S. 315, 327 [(1959)) (Stewart, J.,

concurring). Petitioner had become the accused,

and the purpose of the interrogation was to “get

him” to confess his guilt despite his constitutional

right not to do so.

The “guiding hand of counsel” was essential to

advise petitioner of his rights in this delicate

situation. Powell v. Alabama, 287 U.S. 45, 69

((1932)]. This was the “stage when legal aid and

advice were most critical to petitioner.” Massiah v.

United States, supra, at 204. It was a stage surely as

critical as wus the arraignment in Hamilton v.

Alabama, 368 U.S. 52 [(1961)], and the preliminary

hearing in White v. Maryland, 373 U.S. 59 [(1963)

(per curiam)).

378 U.S. at 485, 486. In Escobedo the defendant, while

in custody, asked to consult with his attorney, and the

precise holding is limited to that state of facts:

We hold, therefore, that where, as here, the

investigation is no longer a general inquiry into an

unsolved crime but has begun to focus on a

particular suspect, the suspect has been taken into

police custody, the police carry ovt a process of

interrogations that lends itself to eliciting

incriminating statements, the suspect has

requested and been denied an opportunity to

consult with his lawyer, and the police have not

effectively warned him of his absolute

constitutional right to remain silent, the accused

has been denied “the Assistance of Counsel” in

violation of the Sixth Amendment....

378 U.S. at 490-9].

The precise holding in Escobedo does not protect

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Muzychka because, although Raiton’s interrogation

clearly took place at an accusatory stage (Muzychka had

already been arrested with P-2-P in his constructive

possession), Muzychka was not, at the time of his

conversation with Raiton. in police custody, nor had he

requested and been denied an opportunity to consult

with counsel. Justice Goldberg's reasoning in

Escobedo, however, that the sixth amendment right to

counse! attached once the defendant was the target of

an investigaiion, could with very little strain have been

extended to a per se prohibition against governmental

interrogation in the absence of counsel once an

investigation evolved to the stage of an accusation

which resulted in an arrest.

When the Supreme Court next addressed police

interrogation, Justice Goldberg, author of Escobedo.

was no longer a member. It is clear from the briefs filed

in connection with the four cases decided in Miranda v.

Arizona. 384 U.S. 436 (1966), and from the argument of

counse]l, that all involved saw in Escobedo the potential

for a holding that all post-arrest interrogation by

government agents in the absence of counsel was

prohibited by the sixth amendment.® That was not to

be. Instead the court completely changed direction.

abandoning the sixth amendment as a basis for contro!

of post-arrest, pre-indictment interrogation by

government agents. Although the name Miranda still

evokes emotional reactions in some law enforcement

quarters, the decision actually represents a major

retreat from the Court's movement with respect to

control of interrogation practices from Spano v. New

6. See. e.g.. Brief for American Civil Liberties Union. Ainicus

Curiae, at 10-31: arguments of counsel reprinted in Y. Kamisur. W

LaFave & J Israel. Modern Criminal Procedure 572-78 (5th ed

1980).

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York through Escobedo v. Illinois. Instead of moving

the sixth amendment right to counsel forward to the

arrest stage, and prohibiting governmental

interrogation in the absence of counsel thereafter as a

matter of law, the Court affirmatively authorized such

interrogation. The privilege against self-incrimination

was identified as primarily, if not solely, a fifth

amendment problem, and fifth amendment interests

were protected by imposing the requirement of a

pre-interrogation ritualistic and largely ineffective’

warning. Even the warning requirement was applied

only to custodial interrogation.

Miranda represented the Supreme Court's first

step toward the adoption of Justice Stewart's dissenting

position in Escobedo. Although the Court rebuffed

Justice Stewart's view that the sixth amendment has no

applicability to pre-indictment interrogation, it also

declined the invitation to require the presence of

counsel during all post-arrest interrogation. The precise

holding in Escobedo -- that custodial interrogation in

the absence of counsel may not continue when an

accused requests counsel -- was not overruled. Rather,

as Professor Kamisar has put it, “by moving from a right

to counsel base in Escobedo to a self-incrimination

base, ‘Miranda (did) not [enlarge] Escobedo as much as

it... displaced it.’” Kamisar, supra, 67 Geo. L.J. at 26:

see id. at 25 n.145, 40, 79 n.464. As noted above, no

claim has been made that Muzychka was interrogated in

custody or that his statements were admitted in

violation of Miranda.

7. The effectiveness of Miranda warnings is discussed in

Griffiths & Ayres. A Postscript to the Miranda Project: Interrogation

of Draft Protesters. 77 Yale L.J. 300, 310-ll (1967): and Gibbons,

Practical Prophylaxis and Appellate Methodology: The

Exclustonary Rule as a Case Study tn the Dectstonal Process. 3

Seton Hall L. Rev. 295, 314 (1972).

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Although Miranda foreshadowed a retreat to

Justice Stewart's position in Escobedo, it did not

preordain that retreat. United States v. Wade, 388 U.S.

218 (1967) -- in which the court established the right to

counsel at a post-indictment lineup without relying on

the existence of an indictment as a trigger for the right

to counsel -- seemed to confirm that view.® Nevertheless,

Justice Stewart's vision of the function of the sixth

amendment in the protection of other constitutional

values commanded a plurality of the Court in Kirby v.

Illinois, 406 U.S. 682, 688-90 (1972), and majorities of

the Court in Moore v. Illinois, 434 U.S. 220, 226-27

(1977), and Brewer v. Williams, 430 U.S. 387. 398

(1977). These cases hold that the right to counsel!

attaches “‘at or after the initiation of adversary judicial

criminal proceedings -- whether by way of formal

charge, preliminary hearing, indictment, information.

or arraignment.” Moore, 434 U.S. at 226, quoting

Kirby. 406 U.S. at 689.

B.

In light of these holdings, it cannot be maintained

that the right to counsel was triggered solely by

8. In Wade the Court increased the sophistication of tts

analysis of the right to counsel in two respects wholly independent of

the commencement of adversary judicial proceedings. First. the

Court seized upon the sixth amendment guaranty of the right of the

accused to have the assistance of counsel “for his defence.” holding

that this language guaranties assistance by counsel “whenever

necessary to assure a meaningful ‘defence.'” 388 U.S. at 225. In this

respect the Court expanded on the holding of Escobedo. pressing the

sixth amendment into service to protect values other than the

privilege against self-incrimination when necessary for a

“meaningful defence” at “critical stages” of the proceedings. Second.

the Cc urt evaluated the necessity for counsel at a “critical stage” in

light of the effectiveness that cross-examination would have at trial

in the event counsel were absent from thai stage. Id. at 230-32. In

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Muzychka’'s arrest by Florida authorities. That battle

was waged and decided decisively in Miranda. There the

Court declined to require the presence of counsel! at all

post-arrest interrogation, despite the argument that the

presence of counsel was necessary to protect the rizht to

be free of compelled incrimination. To the extent that

some courts have suggested in dicta that an arrest alone

marks the commencement of adversary judicial

proceedings within the meaning of Massiah. we cannot

agree.°

Nor can we agree that the right to counsel was

triggered by Muzychka’s arrest by Florida authorities

coupled with the circumstances surrounding Raiton's

conservations with him. Muzychka’s argument is

essentially that the government's technique of eliciting

information from him was inherently coercive, and that

counsel should have been present to insulate him

against that coercion. These are fifth amendment

values whose protection, before the commencement of

adversary judicial proceedings, is now exhausted by

Miranda and the due process and self-incrimination

clauses. See Stovall v. Denno, 388 U.S. 293, 301-02

(1967). It is at this date too late to advocate the

impressment of the sixth amendment right to counsel

in the service of fifth amendment values before the

addition, the Court continued the practice, begun in Massiah and

Escobedo, of evaluating the salutary effect of the presence of counsel

during critical phases of the proceedings. Id. at 232-35. These

analyses were not dependent on the existence vel non of an

indictment.

9. See United States v. Kenny. 645 F.2d 1323, 1338 (9th C!>.).

cert. dented, 452 U.S. 920 (1981); United States v. Zazzara. 626 F.2d

135, 138 (9th Cir. 1980); United States v. Nashawaty, 571 F.2d 71,

74-75 (1st Cir. 1978): United States v. Sam Goody, Inc., 506 F. Supp.

380. 394 (E.D.N.Y. 1981): United States v. Matthews. 488 F. Supp.

374. 380-81 (D. Neb. 1980).

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commencement of adversary judicial proceedings. Until

adversary judicial proceedings have commenced,

coercive methods of eliciting information from a

defendant are governed by Miranda and due process

and self-incrimination analyses. '°

Muzychka also relies on the holding of United

States ex rel. Burton v. Cuyler, 439 F. Supp. 1173,

1179-82 (E.D. Pa. 1977). That case holds that the

issuance of a state arrest warrant may, under the

applicable state law, constitute the commencement cf

adversary judicial proceedings within the meaning of

Massiah. We have no occasion io consider whether an

arrest warrant issued under state law may constitute

the commencement of formal judicial proceedings when

State law regards the issuance of an arrest warrant as

the equivalent »f an indictment. It is undisputed that

Florida authorities issued no arrest warrant for

Muzychka in this case.'!

Because Muzychka was not in custody, Raiton’s

interrogation did not require Miranda warnings.

Because no adversary judicial proceedings had occurred

prior to Raiton’'s elicitations, the sixth amendment rule

announced in Massiah does not apply. Thus the court

0. Muzychka did not urge that the use of Raiton’s deceptions

in obtaining evidence violated due process. Such a contention

would, on this record, evidently be foreclosed by United States v.

Jannotti, 673 F.2d 578, 606-10 (3d Cir.) (in banc), cert. dented. 457

U.S. 1106 (1982).

11. Muzychka also relies on United States v. Lilla. 534 F

Supp. 1247, 1280 (N.D.N.Y. 1982), affd in part and rev'd tn parton

other grounds, 699 F.2d 99 (2d Cir. 1983). holding that under

certain circumstances the filing of a federal felony complaint may

constitute the commencement of adversary judicial proceedings. In

that case arrest warrants had been issued against the defendants

under Fed. R. Crim. P. 5(a) before the time of the challenged

conversations. Jd. at 1275. We have no occasion to decide whether

the issuance of an arrest warrant under Fed. R. Crim. P. 5{a) may

constitute the commencement of aciversary judicial proceedings.

But see Kamisar, supra. 67 Geo. L.J. at 85-86 n. 503.

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did not err in denying the motion to suppress the Raiton

tapes.

IV.

Muzychka also moved to suppress the tape

recordings made by Naiman prior to the arrest in Fort

Lauderdale. The ground for this motion is that since not

all of his conversations with Naiman in April and May of

1981 were recorded, none of those recorded should be

admitted. Muzychka does not contend that the

unrecorded conversations were exculpatory. Nor does

he contend that tape recordings were destroyed either

deliberately or by inadvertance. Thus his claim does not

fit within the due process rationale of Brady v.

Maryland, 373 U.S. 83, 87 (1963), and United States v.

McCrane, 547 F.2d 204, 205-08 (3d Cir. 1976) (per

curiam). Rather, he placed principal reliance on United

States v. Starks, 515 F.2d Il2 (3d Cir. 1975), and

Government of the Virgin Islands v. Testamark, 570

F.2d 162 (3d Cir. 1978). Neither case affords a ground for

suppression of the Naiman tapes which were made.

In United States v. Starks, this court laid down

standards of authentication to be met by the

proponents of tape recordings offered in evidence. 515

F.2d at 121-22. Those recordings which the government

proposed to offer in this case were authenticated. There

is no evidence that they were altered so as to give a

misleading account of the recorded conversations. The

absence of other recordings does not bear upon the

authenticity of the recordings which were made.

In Government of the Virgin Islands v. Testamark,

we dealt with the failure of the police to preserve a

sample of the defendant's blood which would have been

relevant to the defense of intoxication. We held that the

loss or destruction of that evidence deprived the

defendant of the right to compulsory process, and

violated fundamental fairness, because no other

evidence could substitute for the lost blood sample. 570

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F.2d at 1166. For two reasons, Testamark is not

controlling here. First, no tape recordings were lost or

destroyed; rather, they were never made. Second, there

is another means available for establishing what

occurred during the unrecorded conversations with

Naiman. Naiman can be subpoened, or Muzychka can

testify.

What Muzychka proposes is essentially aper se rule

that when the government utilizes an informant to

record conversations with a target of an investigation, it

must record all such conversations or none may be

admitted. There is no justification for such a rule. Fed.

R. Evid. 403 gives the court discretion: to exclude

relevant evidence on the ground that it presents an

unfairly edited version of a series of transactions. There

was no abuse of discretion in denying the suppression

motion here, since no showing was made that the

unrecorded conversations would have been

exculpatory, or would have tended to make the recorded

conversations seem less inculpatory. Moreover

Muzychka was free to argue that selective recordation

bore on the weight which a factfinder should attach to

what was heard on the tapes.

IV.

Since the trial court did not err in denying the

suppression motions addressed to either the Raiton or

the Naiman tapes, the judgment of sentence will be

affirmed.

A True Copy:

Teste:

Clerk of the United States Coun oj Appeals

Jor the Third Circutt

1IAO CS Courts. G MC. irtatiuig. Pte. Pa 25S. We dees

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 83-1246

UNITED STATES OF AMERICA

v.

EUGENE MUZYCHKA,

Appellant

(D.C. Crim. No. 82-00018)

SUR PETITION FOR REHEARING

Present: SEITZ, Chief Judge, ALDISERT, ADAMS,

GIBBONS, HUNTER, WEIS, GARTH,

HIGGINBOTHAM, SLOVITER AND

BECKER, Circuit Judges and CALDWELL,

District Judge*

The petition for rehearing filed by appellant in the

above entitled case having been submitted to the judges

who participated in the decision of this court and to all

the other available circuit judges of the circuit in regular

active service, and no judge who concurred in the deci-

sion having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

*Hon. Wiliam W. Caldwell, United States District Judge for

the Middle District of Pennsylvania, on panel rehearing only.

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having voted for rehearing by the court in banc, the peti-

tion for rehearing is denied.

By the Court,

/s/ GIBBONS

Judge

Dated: Feb. 22, 1984

| eam ep ence |)