Amicus Curiae Brief — Maine v. Moulton

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

STATE OF MAINE, PETITIONER

Vv.

PERLEY MOULTON, JR.

ON WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MAINE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

REX E. LEE

Solicitor General

STEPHEN §S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the Sixth Amendment prohibits the use at

trial of post-indictment incriminating statements made

to a government informant, where the statements were

made at a meeting arranged by the defendant and where

the government recorded the statements as part of an

investigation of threats against the informant and other

prospective witnesses.

(1)

TABLE OF CONTENTS

Page

Interest of the United States ............................................ 1

EES 1

EEE 5

Argument:

A. The rationale of Massiah does not apply where it

was the defendant, not the government, who cre-

ated the situaticn in which he made incriminat-

A aaa 7

B. Massiah does not require exclusion of the de-

fendant’s statements where the government’s

actions were undertaken for legitimate purposes

unrelated to obtaining evidence concerning the

crime with which the defendant was charged...... 18

C. Because there is no right to the assistance of

counsel in connection with obstruction of jus-

tice, the Massiah exclusionary rule should not

apply to fruits of an objectively justifiable in-

vestigation of such activities 000000000. 28

EES SSL 30

TABLE OF AUTHORITIES

Cases:

Beatty v. United States, 389 U.S. 45, rev’g 377

es ecsnnduntuccennecene 17, 18, 29

Brewer V. Williams, 430 U.S. 387 _............. 5-6, 9, 10, 13, 14,

17, 19, 20

Clark v. United States, 289 U.S. 1 _.......000000000... 28, 29-30

Coleman v. Alabama, 399 U.S. 1 .............................. 13

Edelman Vv. Jordan, 415 U.S. 651.0000... 17

Edwards v. Arizona, 451 U.S. 477 ............-.000000000.... 18

Estelle v. Smith, 451 U.S. 454 | .000000 20

Grand Jury Subpoena Duces Tecum, In re, 731

F.2d 1082 ........... OC ae 28, 29

IV

Cases—Continued : Page

Grieco Vv. Meachum, 533 F.2d 713, cert. denied, 429

FS RTE Saeko en enens SOS 25, 26, 27, 28

Hoffa v. United States, 385 U.S. 293 -......... eid eateane 21

International Systems & Controls Corp., In re, 693

a iiiaenll 30

Johnson Vv. Zerbst, 304 U.S. 458 .............................--- 12, 14

Massiah v. United States, 377 U.S. 201 .................... passim

Be S,, Ge, Ge i TD eeteteciesceteveseccnsesinnsoomenens 18

Mealer v. Jones, 741 F.2d 1451, cert. denied, No.

BS 0 ee 17, 21, 26

New York v. Quarles, No. 82-1213 (June 12, 1984)... 19, 24

Nix v. Williams, No. 82-1651 (June 11, 1984) ......6, 13, 14,

16, 17, 20, 29

Powell v. Alabama, 287 U.S. 46 ................-.......---.--- 9

Roes Vv. Moffitt, 417 U.S. 600 .................................... 12

Sealed Case, In re, No. 84-5388 (D.C. Cir. Feb. 8,

RIESE as Rie aS ASR es nO Re 30

Sealed Case, In re, 676 F.2d 798 .................... ...--.-.---- 30

Snead v. Stringer, 454 U.S. 988 .................--..2-......--- 17

Spano v. New York, 360 U.S. 315 ............................ 8, 9,13

State v. McLeod, 1 Ohio St.2d 60, 203 N.E.2d 349. 18

Thomas v. Cox, 708 F.2d 132, cert. denied, 464

OO i aa kc 16

United States v. Ash, 413 U.S. 300 0.00. 6, 12, 13, 14

United States v. Calhoun, 669 F.2d 923, cert. de-

I ls 21

United States v. Darwin, No. 82-5794 (11th Cir.

FO, Te Te i ti ils eialeeseenlatniiomneeuieiinis 26, 28

United States v. DeWolf, 696 F.2d 1 .........00000000....... 26, 27

United States v. Dyer, 722 F.2d 174 ........................ 28

United States v. Fitterer, 710 F.2d 1328, cert. de-

I i eaieaeanuaiihs 22

United States v. Gouveia, No. 83-128 (May 29,

SITITTIITITI scissile ncasschacieeaonieceimatepbcadeaenaceaicdiiakhatehdindaadatiinRacie es Ae 12

United States v. Hearst, 563 F.2d 1331, cert. de-

UE ED REI, I geiko 15

United States v. Henry, 447 U.S. 264, aff’g 590

PGI TIE shcssithccsnitsteeunnsniatiaaitieniadeitbatakense casetiididasnbebiiaad passim

United States v. Jamil, 707 F. I oor ke 22

United States v. Kenny, 645 F.2d 1323, cert. de-

nied, 464 US. G38 ..................... CE CLR NAA nor: MPT 22

Vy

Cases—Continued : Page

United States v. Lisenby, 716 F.2d 1355 ............... 21

United States v. Malik, 680 F.2d 1162 _......0000000... 16

United States v. Massiah, 307 F.2d 62

United States v. Melanson, 691 F.2d 579, cert. de-

i Pree 15

United States v. Merritts, 527 F.2d 713 .................. 26, 2?

United States v. Missler, 414 F.2d 1293, cert. de-

I ee 21

United States v. Morrison, 449 U.S. 361 ........ 16, 17

United States v. Moschiano, 695 F.2d 236, cert. de-

Rs a ate 21, 26

United States v. Muzychka, 725 F.2d 1061, cert.

denied, No. 83-1714 (May 21, 1984) 17

United States v. Panza, 750 F.2d 1141 16

United States v. Russell, 411 U.S. 423 000000. 15

United States v. Tare, 540 F.2d 961, cert. denied,

sells 26

United States y. Vasquez, 675 F.2d 16... 22

United States v. Wade, 388 U.S. 218 2.000000... 12, 13

Wayte v. United States, No. 83-1292 (Mar. 19,

i 25

Weatherford v. Butsey, 429 U.S. 545 0000... 14, 18, 20

White v. Maryland, 373 U.S. 59 0-0... ra 13

. . 9 A, eg ) neuen rE 18

Constitution:

Is a a aminieaineenunile passim

Miscellaneous:

Kamisar, Brewer v. Williams, Massiah and

Miranda: What is “Interrogation”? When Does

it Matter?, 67 Geo. L. J. 1 (1978) ...000.0 14

Oxford English Dictionary (1978) _..............0... 8

Webster’s Third New International Dictionary

a 8

————

Tm Ne

- oso.

Iu the Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-786

STATE OF MAINE, PETITIONER

Vv.

PERLEY MOULTON, JR.

ON WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MAINE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents a significant question concerning the

admissibility at trial of post-indictment incriminating

statements made by a defendant to a government inform-

ant. Although this happens to be a state case, the resolu-

tion of the question presented will also affect federal

criminal prosecutions.

STATEMENT

After a jury-waived trial in the Superior Court of

Waldo County, Maine, respondent was convicted on sev-

eral counts of theft and burglary. The Supreme Judicial

Court of Maine reversed his convictions on the ground

that certain post-indictment statements made by respond-

ent to a government inforinant had been improperly ad-

mitted in evidence against him.

1. Respondent and a co-defendant, Gary Colson, were in-

dicted in April 1981 on three felony counts of theft by

(1)

2

receiving two stolen trucks and some automobile parts and

a misdemeanor count of theft by receiving a stolen auto-

mobile (Pet. App. 2; J.A. 8-11).* On November 4, 1982,

while these charges were still pending, Colson telephoned

Belfast Police Chief Robert Keating and informed him

that he had received threatening telephone calls regarding

the pending criminal charges.*, When Colson expressed an

interest in telling Chief Keating about the circumstances

giving rise to the theft indictments, Chief Keating told

him to consult with his attorney before revealing any in-

formation about those alleged criminal activities. Pet.

App. 44.

On November 6, 1982, Colson and respondent met at

the home of an acquaintance and then went to another

location in Belfast. At that meeting, respondent told Col-

son of his idea to kill Gary Elwell, a prosecution witness.

Colson was to obtain a car to be used in that undertak-

ing. Pet. App. 9-10, 44; J.A. 25-28, 30-32, 72-76, 95-96.

On November 9 and 10, Colson met with Chief Keating

and Officer Rex Kelley of the Maine State Police at the

office of Colson’s attorney. During that meeting, Colson

discussed the thefts with which he had been charged as

well as the conversation with respondent on November 6

in which respondent had suggested a plan to kill Elwell.

Chief Keating previously had learned that other wit-

nesses, including Elwell, had received threats, and that

one witness, Leslie Ducaster, had been threatened in per-

son by respondent. Colson consented to the placement of

a recording device on his telephone, and subsequently he

recorded three telephone calls that were initiated by re-

spondent.? Chief Keating testified at the suppression

hearing that he placed the recording device on Colson’s

telephone because respondent was to call Colson back

1 Superseding indictments were returned in January 1983 (Pet.

App. 4).

2 Colson testified at the suppression hearing that he contacted

Chief Keating because the matter of the threatening telephone calls

“had gone too far” (J.A. 26).

8 Respondent’s statements in these three conversations were not

introduced at trial.

—

3

when plans to eliminate Elwell had been finalized and be-

cause Colson himself had been receiving threatening tele-

phone calls. Chief Keating told Colson to act normally

and just to be himself in these conversations. Pet. App.

10-11, 45; J.A. 28-29, 32-36, 50, 67, 74-78, 87-90, 97-100.

The three recorded telephone conversations covered a

wide variety of subjects, including personal matters such

as Colson’s work with Amway, the purchase of automo-

biles, etc. There aiso was discussion of the charges pend-

ing against respondent and Colson, in light of their re

ceipt from their lawyers of written statements obtained

from the prosecution in which several witnesses incrimi

nated respondent and Colson. See, e.g., 12/2/82 Tr 1-&;

12/14/82 Tr. 1-4, 7, 9-15, 16-17.* In addition, in the first

of the recorded telephone conversations, on November 22,

1982, respondent, in an apparent reference to the plan to

do away with a prosecution witness (see J.A. 88), told

Colson that he had “come up with a method” and that he

wanted to get together with Colson to talk about it after

respondent had “work[ed] out the details on it” (11/22/

82 Tr. 4). Respondent also referred to statements by

several witnesses that they had been threatened (12/2/82

Tr. 4; 12/14/82 Tr. 9). In the last of the recorded tele-

phone conversations, respondent, who was then living in

New Hampshire, informed Colson that he was coming to

Maine for Christmas weekend and wanted to meet with

Colson on the day after Christmas (J.A. 109-112; 12/

14/82 Tr. 7-8, 19-21, 23).

Chief Keating and Detective Kelley arranged for Colson

to wear a body recorder during the December 26 meet-

ing. Both officers testified at the suppression hearing that

the body recorder was intended to protect Colson’s safety

during the meeting, in the event that respondent might

have learned that Colson was cooperating with the police,

and to record any information concerning threats to other

witnesses. J.A. 37-39, 53-55, 67, 84-85, 87-88. Colson was

*“Tr.” with an accompanying date refers to the transcript of the

recorded conversation between respondent and Colson on that par-

ticular date.

4

instructed in connection with the December 26 meeting

to be himself and to converse normally, to discuss the

threats if that subject was brought up, but to avoid ques-

tioning or drawing information out of respondent (J.A.

55-57, 61-62, 77-78, 87). During the conversation, re-

spondent in fact did bring up the issue of killing Gary

Elwell, by means of poison darts or explosives (12/26/82

Tr. 18-21). Those portions of the transcript were not ad-

mitted into evidence at trial. There also was considerable

discussion of developing false testimony for presentation

at trial (id. at 13-14, 22, 26, 39-40, 44-45, 67-68, 76-77,

87, 97), although only one portion of that discussion was

introduced at trial (J.A. 146-150). In addition, there was

some direct discussion of the thefts for which respondent

had been indicted, and the transcript of portions of the

conversation containing such discussion was introduced at

trial. See J.A. 113-151.

2. The trial court denied respondent’s motion to sup-

press his statements to Colson (Pet. App. 43-49). The court

recognized that under Massiah v. United States, 377 U.S.

201 (1964), and United States v. Henry, 447 U.S. 264

(1980), post-indictment statements made by a defendant

without the presence of counsel must be suppressed if they

were “deliberately elicited” by the State or if the State

created a situation likely to induce the defendant to make

incriminating statements (Pet. App. 47-48). But the

court concluded in this case that “the State did not de-

liberately elicit any statements contained in the recordings

that relate to the crimes for which [respondent] had

already been indicted” and that “the State did not create

a situation likely to induce [respondent] to make incrimi-

nating statements without the assistance of counsel” (id.

at 49). In this regard, the court found on the basis of

the testimony at the suppression hearing that the State

had recorded the conversations “for legitimate purposes

not related to the gathering of evidence concerning the

crime for which [respondent] had been indicted”—+.e.,

“in order to gather information concerning the anonymous

threats that Mr. Colson had been receiving, to protect

5

Mr. Colson and to gather information concerning [re-

spondent’s] plans to kill Gary Elwell” (Pet. App. 48-49).

38. The Maine Supreme Judicial Court reversed re-

spondent’s convictions, holding that his Sixth Amendment

rights had been violated (Pet. App. 9-19).° It found

“ample evidence” to support the trial court’s conclusion

that the recordings were made for legitimate purposes

not related to the gathering of evidence concerning the

crime for which respondent had been indicted—i.e., con-

cerns about Colson’s safety and about gathering informa-

tion regarding possible threats to other witnesses (id. at

12-13). It also acknowledged the trial court’s finding that

“Colson was told to try to act like himself, converse nor-

mally, and avoid trying to draw information out of

[respondent]” (id. at 16). Nevertheless, the court held

that the statements were inadmissible under United

States v. Henry, 447 U.S. at 274, because, in its view,

the police “intentionally created a situation that they

knew, or should have known, was likely to result in [re-

spondent’s] making incriminating statements during his

meeting with Colson” (Pet. App. 18).

SUMMARY OF ARGUMENT

The Supreme Judicial Court of Maine has extended this

Court’s holdings in Massiah v. United States, 377 U.S.

201 (1964), and United States v. Henry, 447 US. 264

(1980), to quite different circumstances in which the ra-

tionale of those decisions does not apply. Massiah and

Henry concerned measures initiated by the government

that were found to constitute the “deliberate elicitation”

from the defendant of incriminating statements pertain-

ing to the criminal activities for which he already had

been indicted. 377 U.S. at 204, 206; 447 U.S. at 270.

See also Brewer v. Williams, 430 U.S. 387, 399-401

®* The Supreme Judicial Court also reversed the trial court’s dis-

missal of several counts on the basis of improper venue (Pet. App.

6-9) and rejected respondent’s search and seizure claims (id. at

19-41). Those issues are not involved here.

6

(1977) ; id. at 410, 412 (Powell, J., concurring) ; Nia Vv.

Williams, No. 82-1651 (June 11, 1984), slip op. 4, 8. The

Sixth Amendment principles articulated in Massiah re-

quire exclusion of the defendant’s statements in such cir-

cumstances in order to prevent “overreaching” by the

police or prosecutor and to “safeguard the adversary sys-

tem” (Nix v. Williams, slip op. 14; United States v. Ash,

418 U.S. 300, 312 (1973)). The far different circum-

stances of this case do not activate the same concerns.

Three factors in particular are significant. First, un-

like the agents in Massiah and Henry, the police in this

case were not “intentionally creating a situation likely to

induce [the defendant] to make incriminating statements

without the assistance of counsel” (Henry, 447 U.S. at

274). It was respondent who initiated each of the tele-

phone conversations and the December 26 meeting and

who thereby “created” the situation in which he made the

incriminating statements. Second, in Massiah and Henry

the government deliberately sought to obtain statements

that were intimately connected with the crimes with

which the defendant was charged. In this case, by con-

trast, the Supreme Judicial Court found “ample evidence”

to support the trial court’s finding that the police re-

corded the conversations for legitimate reasons unrelated

to the obtaining of statements from respondent pertaining

to the charges against him: to protect the safety of

Colson and to investigate threats to him and other wit-

nesses. Third, the police in this case had reasonable

grounds to believe that respondent was engaged in ob-

struction of justice by threatening witnesses and that re-

spondent would discuss plans to kill a witness in the con-

versations he initiated with Colson—factors that were not

present in Massiah and Henry. A defendant has no con-

stitutional right to the assistance of counsel when he is

planning or discussing such endeavors.

There is no need for the Court to decide in this case

whether any one of the foregoing factors alone would

be a sufficient basis on which to distinguish Massiah. At

least when considered in combination, these factors

7

strongly support the conclusion that Massiah should not be

extended to require the exclusion of respondent’s state-

ments. There plainly was no “overreaching” by the police

in this case. To the contrary, the police acted in an en-

tirely responsible manner based on legitimate and well-

founded concerns that respondent was threatening physi-

cal harm to witnesses and engaging in efforts to under-

mine the very adversary system that the Sixth Amend-

ment was intended to preserve.

ARGUMENT

A. THE RATIONALE OF MASSIAH DOES NOT APPLY

WHERE IT WAS THE DEFENDANT, NOT THE

GOVERNMENT, WHO CREATED THE SITUATION

IN WHICH HE MADE INCRIMINATING STATE-

MENTS

The first important distinction between this case and

Massiah or Henry is that in the latter cases it was the

government that intentionally contrived a situation in

which it was likely that the defendant would make in-

criminating statements, while in this case it was respond-

ent who initiated each of the recorded telephone conversa-

tions and arranged the December 26 meeting (J.A. 25-36,

70, 73, 84-85). The origins, holding, and rationale of

Massiah and its progeny do not extend to these circum-

stances.

l.a. In Massiah, a government agent instructed the in-

formant to invite Massiah to go for a ride in the inform-

ant’s car and to induce him to talk about the crimes for

which he had been indicted. An agent overheard incrim-

inating statements made by Massiah and testified about

them at trial. United States v. Massiah, 307 F.2d 62, 66

(2d Cir. 1962); id. at 72 (Hays, J., dissenting). On the

basis of these factual premises, Massiah argued in this

Court that the statements he made to the informant

should have been excluded because he had been subjected

to surreptitious interrogation by the government in viola-

tion of his right to counsel. Pet. Br. at 4, 6-10, Massiah

v. United States. This Court agreed, but it is clear that

8

the Court rested its holding, as Massiah had rested his

argument, on the fact that it was the government that

set up the encounter and thereby induced him to talk.

The Court’s explicit holding in Massiah was that “the

petitioner was denied the basic protections [of the Sixth

Amendment 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 coun-

sel.” 377 U.S. at 206 (emphasis added) ; see also id. at

204. The word “elicit” connotes an affirmative drawing

out of information that the defendant would not other-

wise be disposed to reveal."

Moreover, the Court in Massiah relied on the concur-

ring opinions of four Justices in Spano v. New York, 360

U.S. 315, 324-327 (1959), a case that involved protracted

in-custody interrogation of the defendant without the

presence of counsel. The Court described the rationale of

the concurrences in Spano to be that reversal is required

whenever a confession is “deliberately elicited” from the

accused after indictment and without the presence of

counsel, because a Constitution that guarantees a de-

fendant the right to counsel at a formal trial “could

surely vouchsafe no less to an indicted defendant under

interrogation by the police in a completely extrajudicial

proceeding.” 3877 U.S. at 204. The Court acknowledged

that “in the Spano case the defendant was interrogated

in a police station, while [in Massiah| the damaging tes-

timony was elicited from the defendant without his knowl-

edge while he was free on bail.” Jd. at 206. But the

Court concluded that if the rule drawn from Spano “is to

have any efficacy it must apply to indirect and surrepti-

“ Webster's Third New International Dictionary 736 (Ath ed.

1976) defines “elicit” to mean “to draw or bring out (something

latent or potential), * * * to call forth or draw out.” The Oxford

English Dictionary 89 (1978) similarly defines “elicit’’ to mean

“ltlo draw forth (what is latent or potential) into sensible exist-

ence, * * * to extract, draw out (information) from a person by

interrogation” (emphasis in original).

9

tious interrogations as well as those conducted in the jail-

house. In this case, Massiah was more seriously imposed

upon * * * because he did not even know that he was

under interrogation by a government agent.” Jbid., quot-

ing 307 F.2d at 72-73 (Hays, J., dissenting).

Thus, the rationale of Massiah was that, as in Spano,

the government had set up what amounted to an “extra-

judicial proceeding” at which the defendant would be in-

terrogated, thereby circumventing the formal trial pro-

ceedings and the constitutional €uarantees that would ap-

ply in such proceedings. 377 U.S. at 204.’ The finding

of a right to counsel in such circumstances, the Court ex-

plained, simply reaffirmed the principle of Powell v. Ala-

bama, 287 U.S. 45, 57 (1932), that a defendant is en-

titled to the aid of counsel during the critical period of

the “proceedings” against him. 377 U.S. at 205.

b. This view of the basis and limits of Massiah is re-

flected in the Court’s subsequent opinions as well. Thus,

in Brewer v. Williams the Court described the rule of

Massiah to be that “once adversary proceedings have

commenced against an individual, he has a right to legal

representation when the government interrogate: him.”

430 U.S. at 401. The Court in Brewer found a Sixth

Amendment violation under Massiah because the detec-

tive “deliberately and designedly set out to elicit informa-

tion from Williams just as surely as—and perhaps more

effectively than—if he had formally interrogated him.”

430 U.S. at 399. See id. at 400 (“no such constitutional

protection would have come into play if there had been

no interrogation”). The concurring opinions in Brewer

echo this same theme that the government in that case

See Spano, 360 U.S. at 325 (Douglas, J., concurring) (“[t)his is

a case of an accused, who is scheduled to be tried by a judge and

jury, being tried in a preliminary way by the police”); id. at 326

(“secret trial’) ; id. at 327 (Stewart, J., concurring) (after indict-

ment, accused has right to counsel at every stage of “proceedings” ;

“[w|hat followed the petitioner’s surrender in this case was not

arraignment in a court of law, but an all-night inquisition in a

prosecutor’s office, a police station, and an automobile”).

10

had imposed upon the defendant by means of interroga-

tion.®

Similarly, in United States v. Henry, the Court stated

that the question presented was whether, under the par-

ticular facts of that case, “a Government agent ‘delib-

erately elicited’ incriminating statements from Henry

within the meaning of Massiah.” 447 U.S. at 270. See

also id. at 272, 273. In concluding that the agent did so,

the Court relied on several factors: that the cellmate was

acting under instructions as a paid government inform-

ant who was “charged with the task of obtaining infor-

mation from [the] accused” (id. at 270, 272 n.10); that

the informant ostensibly was no more than a fellow in-

mate (id. at 270, 273); and that the defendant was in

custody at the time (id. at 273-274). The Court found

these circumstances sufficient to support the conclusion

that the informant “deliberately used his position to se-

cure incriminating information from Henry when coun-

sel was not present” and that this conduct was properly

“attributable to the Government” (id. at 270). Accord-

ingly, the Court held that the government violated the

defendant’s Sixth Amendment rigtt “[b]y intentionally

creating a situation likely to induce Henry to make in-

criminating statements without the assistance of coun-

sel” (id. at 274). Thus, the Court viewed Henry, like

Massiah, as a case in which the government was the

moving force in the encounter and therefore could fairly

be regarded as having caused the incriminating state-

ments to be made.” See also 447 U.S. at 277 (Powell, J.,

5 See 430 U.S. at 409 (Marshall, J., concurring) (defendant is

entitled to have the “protective shield” of a lawyer between himself

and the “awesome power” of the state) ; id. at 411 (Powell, J., con-

curring) (detective “initiated” conversation); id. at 410, 411, 412

(detective engaged in “interrogation”); id. at 415 (Stevens, J.,

concurring) (encounter was “a critical stage of the proceeding” at

which a lawyer would have been “the essential medium through

which the demands and commitments of the sovereign [could have

been] communicated to the citizen’).

® The Court did observe in Henry that “[i)]n Massiah, no inquiry

was made as to whether Massiah or his codefendant first raised

11

concurring) (“the government engaged in conduct that,

considering all of the circumstances, is the functional

equivalent of interrogation” ).

2. The conclusion that the rationale of Massiah applies

only to circumstances in which the government takes af-

firmative steps to induce the defendant to make incrimi-

nating statements also is supported by the text of the

Sixth Amendment guarantee and by this Court’s decisions

construing that guarantee in other contexts.

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to

have the Assistance of Counsel for his defence.” The

term “defence” itself connotes a situation in which the

government takes the offensive as an aspect of the “pros-

ecution” of the accused, in the same manner as the gov-

the subject of the crime under investigation.” 447 U.S. at 271-272.

However, that observation reflected only a determination by the

Court not to parse the dynamics of the interaction between the

defendant and the informant within the context of a conversation

for which the Court held that the government must bear overall

responsibility. The incriminating statements concededly were “the

product of this conversation” (id. at 271). Here, by contrast, there

was no governmental contrivance to secure information from re-

spondent, and it was he who provided the impetus behind each of

the recorded telephone conversations and the December 26 meeting.

The Court in Henry did not suggest that it was irrelevant whether

the government or the defendant initiated the overall encounter.

To the contrary, as we have explained in the text, the Court’s holding

was explicitly premised on the finding that the government inten-

tionally created a situation that was likely to induce the defendant

to make incriminating statements (id. at 274).

Moreover, in a footnote elaborating upon the sentence quoted

above, the Court explained that although the government specifically

arranged the meeting in Massiah, in Henry the government was

“fortunate enough to have an undercover informant already in

close proximity to the accused,” and the government exploited that

situation by charging the informant with obtaining information

from the accused (id. at 272 n.10). It was this exploitation that in

turn caused the defendant to confide in the informant (id. at 271,

274 & n.12). Thus, the explanatory footnote confirms that the

quoted passage was not intended to make the fact of governmental

instigation irrelevant.

12

ernment does at the trial itself, not a situation in which

the accused himself takes the initiative in bringing about

a pre-trial conversation or meeting with a person he does

not even know to be a government informant. Cf. Ross Vv.

Moffitt, 417 U.S. 600, 610-611 (1974). This Court’s deci-

sions reinforce that conclusion.

The Court has recognized that the “core purpose” of

the counsel guarantee is to assure assistance at trial,

“ ‘when the accused [is] confronted with both the intri-

eacies of the law and the advocacy of the public prosecu-

tor.” United States v. Gouveia, No. 83-128 (May 29,

1984), slip op. 8, quoting United States v. Ash, 413 U.S.

300, 309 (1973). The Sixth Amendment

embodies a realistic recognition of the obvious truth

that the average defendant does not have the profes-

sional legal skill to protect himself when brought be-

fore a tribunal with power to take his life or liberty,

wherein the prosecution is presented by experienced

and learned counsel.

United States v. Gouveia, slip op. 8, quoting Johnson V.

Zerbst, 304 U.S. 458, 462-463 (1938) (emphasis added).

The Court also has “extended an accused’s right to

counsel to certain ‘critical’ pretrial proceedings’ (Gou-

veia, slip op. 8). These additional situations to which the

counsel guarantee attaches are “trial-like confronta-

tion[s]” between the government and the accused (Ash,

413 U.S. at 314) that “might appropriately be considered

to be parts of the trial itself’ (id. -t 310). In United

States v. Wade, 388 U.S. 218, 224 (1967), the Court ex-

plained the rationale and process by which the counsel

guarantee has been expanded to these additional confron-

tations:

When the Bill of Rights was adopted, there were no

organized police forces as we know them today. The

accused confronted the prosecutor and the witnesses

against him, and the evidence was marshalled, largely

at the trial itself. In contrast, today’s law enforce-

ment machinery involves critical confrontations of

the accused by the prosecution at pretrial proceed-

13

ings where the results might well settle the accused’s

fate and reduce the trial itself to a mere formality.

In recognition of these realities of modern criminal

prosecution, our cases have construed the Sixth

Amendment guarantee to apply to “critical” stages

of the proceedings.

Accord, Ash, 413 U.S. at 310-311. “The Court consist-

ently has applied a historical interpretation of the guar-

antee, and has expanded the constitutional right to coun-

sel only when new contexts appear presenting the same

dangers that gave birth initially to the right itself.” Id.

at 311. See, e.g., United States v. Wade, supra (lineup) ;

Coleman v. Alabama, 399 U.S. 1 (1970) (preliminary

hearing) ; White v. Maryland, 373 U.S. 59 (1963) (guilty

plea at preliminary hearing).

The Court’s explanation of the holding in Massiah is

rooted in these Sixth Amendment principles. In Ash the

Court described Massiah as involving one such “trial-like”

situation, in which “the accused was confronted by pros-

ecuting authorities who obtained, by ruse and in the ab-

sence of defense counsel, incriminating statements” (413

U.S. at 311, 312), and the Court explained that if coun-

sel had been present at the confrontation of Massiah by the

government, he “could have advised his client on the bene-

fits of the Fifth Amendment and could have sheltered him

from the overreaching of the prosecution” (id. at 312).

Indeed, as explained above (see page 8, supra), the

Court in Massiah itself regarded the encounter between

Massiah and the informant to be identical for Sixth

Amendment purposes to the interrogation in Spano, which

the Court characterized as an “extrajudicial proceeding”

that was, in practical effect, a substitute for the trial

itself. 377 U.S. at 204. See also Henry, 447 U.S. at 269

(the Court must scrutinize “postindictment confronta-

tions” to determine whether they are “critical stages” of

the prosecution). Most recently, in Nix v. Williams—

which concerned the same interrogation that was found

in Brewer v. Williams to constitute a violation of the

Sixth Amendment under Massiah—the Court, as in Ash,

described the problem addressed by Massiah to be one of

14

“overreaching” by the police (Nix v. Williams, slip op.

14). And the Court in Nix stated the underlying Sixth

Amendment rule to be that the “assistance of counsel

must be available at pretrial confrontations where ‘the

subsequent trial [cannot] cure a[n otherwise] one-sided

confrontation between prosecuting authorities and the un-

counseled defendant.’” Jbid., quoting Ash, 413 U.S. at

315 (brackets in Nix).

The history and logic of the Court’s extension of the

Sixth Amendment guarantee just described do not apply

where, as in this case, the defendant initiates an en-

counter with an undercover informant. In that circum-

stance, the defendant is not “imposed upon” by the gov-

ernment (Massiah, 377 U.S. at 206) and is not “brought

before” a “tribunal” by the government (Johnson V.

Zerbst, 304 U.S. at 463). Nor is he brought before an

“extrajudicial proceeding” that is the functional equiv-

alent of such a tribunal, as in the case of government-

instigated interrogation or comparable elicitation of in-

criminating statements (Massiah, 377 U.S. at 204), in

which the confrontation “might appropriately be consid-

ered to be part[] of the trial itself’ (Ash, 413 U.S. at

310). By the same token, the government’s willingness to

have an undercover informant attend a meeting suggested

by the defendant does not in any way approach the sort

of “overreaching” by the government or “one-sided con-

frentation between prosecuting authorities and the un-

counseled defendant” that led the Court to extend the

right to counsel to the situations presented in Massiah

and Brewer. See Nix v. Williams, slip op. 14; Ash, 413

U.S. at 312."° To the contrary, such participation by the

informant may often be necessary in order to maintain

his undercover status. See Weatherford v. Bursey, 429

U.S. 545, 557-558 (1977). In short, this Court’s opinions

do not support an extension of the Sixth Amendment

right to counsel to a situation involving statements freely

10 See Kamisar, Brewer v. Williams, Massiah and Miranda: What

is “Interrogation”? When Does it Matter?, 67 Geo. L. J. 1, 44 n.286

(1978) (a “forceful argument” can be made that Massiah “does

not reach so far’’).

15

made by the defendant after he approached the govern-

ment informant. Cf. United States v. Melanson, 691 F.2d

579, 585 (1st Cir.), cert. denied, 454 U.S. 856 (1981).

Accordingly, to hold that this case is controlled by

Massiah would cut that case’s exclusionary rule loose

from its mofrings in settled Sixth Amendment principles.

8. There is an additional reason why Massiah should

not be extended to require the exclusion of statements

where the defendant, uninfluenced by any governmental

contrivance, proposed the meeting with the government

informant. A showing that the government “deliberately

elicited” the admissions or other incriminating statements

from the defendant is an appropriate requirement be-

cause exclusion of such highly relevant evidence at trial

can be justified only where there is a substantial basis

for believing that government conduct actually caused the

defendant to make uncounseled statements that he other-

wise would not have been disposed to make (cf. United

States v. Russell, 411 U.S. 423 (1973) )—i.e., that the

statements are fairly “attributable to the Government”

(Henry, 447 U.S. at 270). For this reason, the Court in

Henry was careful to distinguish the situation involving

only a “listening post,” such as where conversations be-

tween the accused and a third party are overheard by

means of a recording device installed by the government.

447 U.S. at 271 n.9. See, e.g., United States v. Hearst,

563 F.2d 1331, 1347-1348 (9th Cir. 1977), cert. denied,

435 U.S. 1000 (1978). Similarly, Justice Powell ex-

plained in his concurring opinion, citing Hearst, that

“Massiah does not prohibit the introduction of spon-

taneous statements that are not elicited by governmental

action.” 447 U.S. at 276.

Although this case is factually different from Hearst

in the sense that Colson, the informant, was not a passive

listener in the meeting with respondent, here, as in

Hearst, the government itself did not create the situation

in which it was likely that respondent would make in-

criminating statements. Respondent did that himself by

initiating each telephone conversation and setting up the

December 26 meeting with Colson. This case and Hearst

16

therefore are directly analogous for purposes of applica-

tion of the Massiah doctrine. Compare United States v.

Panza, 750 F.2d 1141, 1153 (2d Cir. 1984) (“the conver-

sation was not attributable to the government and did

not violate [the defendant’s] Sixth Amendment rights’) .”

By contrast, in Massiah it was clear that the govern-

ment’s actions in arranging the meeting did cause the

defendant to make the incriminating statements, and in

Henry the Court viewed the circumstances in the limited

record as sufficient to support a similar conclusion. In

those circumstances, exclusion of the statements that

were the product of the government’s deliberate inter-

ference with the attorney-client relationship was required,

despite the substantial societal cost, in order to restore

fairness to the trial proceedings. See United States v.

Morrison, 449 U.S. 361, 364-365 (1981); ef. Nix v. Wil-

liams, slip op. 14. But absent unusual circumstances not

present here, where the defendant approaches the inform-

ant and requests the meeting, not only is there no com-

parable affirmative conduct by the government to create

the situation in which the incriminating statements are

made; there often will not be a firm basis for believing

that whatever involvement there was by the government

—here, its agreement to have the informant participate

in the meeting under instructions to act and converse

normally—actually had any effect on what the defendant

said.

In this case, for example, there is no indication that

the fact that Colson iad approached the government and

agreed to become an informant after he received threats

had any effect on respondent’s evident eagerness to dis-

11 Panza involved the closely related situation in which a question

arises as to whether the person who engaged in conversation with

the defendant should be regarded as a government agent in the

particular circumstances presented. See, e.g., Thomas v. Cox, 708

F.2d 132, 135-136 (4th Cir.), cert. denied, 464 U.S. 918 (1983);

United States v. Malik, 680 F.2d 1162, 1164-1165 (7th Cir. 1982).

If not, the conversation and any incriminating statements emanat-

ing from it are not appropriately attributable to the government

for Sixth Amendment purposes.

17

cuss the charges against him in the December 26 meet-

ing with Colson that respondent initiated. Nor, as a re-

sult, is there any indication that this encounter had any

adverse impact on the fairness of respondent’s trial.

Compare United States v. Morrison, supra. It is clear

that if Colson had not become a government informant

until after December 26, there could be no basis what-

ever for finding a Sixth Amendment violation in the use

at trial of statements respondent made to him on that

date. If, as seems likely, Colson’s status as an informant

at the time of the meeting had no substantial effect o1

what respondent was disposed to say, exclusion of re-

spondent’s statements unfairly places the government in

a worse position by virtue of Colson’s cooperation than

if Colson had not approached the police until after the

conversations. Cf. Nix v. Williams, slip op. 10, 14. The

Sixth Amendment does not require that result.’

12In Beatty v. United States, 389 U.S. 45 (1967), the Court,

citing Massiah, summarily reversed a conviction where the meeting

at which the incriminating statements were made to the undercover

informant was requested by the defendant. However, the Court’s

summary disposition in Beatty, without an opinion, does not have

the same precedential effect as a case briefed and argued on the

merits. Edeiman v. Jordan, 415 U.S. 651, 670-671 (1974). See

Snead vy. Stringer, 454 U.S. 988, 994 n.3 (1981) (Rehnquist, J.,

dissenting from denial of certiorari) (discussing Beatty); id. at

993 (Massiah, Brewer, and Henry support requirement that de-

fendant show “functional equivalent of interrogation”). In any

event, Beatty has not been relied upon or even cited in any subse-

quent opinions for the Court, and we do not believe that Beatty

should be followed, because its result fails to withstand analysis.

But see Mealer v. Jones, 741 F.2d 1451, 1454 (2d Cir. 1984), cert.

denied, No. 84-6210 (Apr. 1, 1985); United States v. Muzychka,

725 F.2d 1061, 1063 (3d Cir. 1984), cert. denied, No. 83-1714

(May 21, 1984).

For the reasons given in the text (see page 7-8, supra), because

the government does not “elicit” statements from the defendant

when the defendant himself requests the meeting at which the

statements are made, Beatty constituted a considerable extension

of Massiah. Moreover, any inference from the facts in Beatty that

the Court was prepared to extend Massiah in full measure to the

mere acquisition of statements from the defendant without govern-

menc provocation did not survive Brewer v. Williams, where the

Court stated that no Sixth Amendment violation would have

18

B. MASSIAH DOES NOT REQUIRE EXCLUSION OF

THE DEFENDANT'S STATEMENTS WHERE THE

GOVERNMENT’S ACTIONS WERE UNDERTAKEN

FOR LEGITIMATE PURPOSES UNRELATED TO

OBTAINING EVIDENCE CONCERNING THE

CRIME WITH WHICH THE DEFENDANT WAS

CHARGED

This case is distinguishable from Massiah and Henry

not only because here the defendant initiated the contact,

occurred if the government had not engaged in interrogation or its

functional equivalent. 430 U.S. at 399-401; id. at 410, 412 (Powell,

J., concurring). Similarly, in finding no Sixth Amendment violation

in Weatherford v. Bursey, supra, the Court stressed that the de-

fendant had invited the informant to the meeting and that it was

necessary for him to accept the invitation in order to avoid sus-

picion that he was an informant. 429 U.S. at 557-558.

In Henry, the Fourth Circuit expressly relied on Beatty for the

proposition that Massiah was not limited to circumstances in which

the government induced the statements in question (Henry Vv.

United States, 590 F.2d 544, 546 (1978)), and Henry argued in

this Court (Resp. Br. at 19, 21-25, 34 n.12, United States v. Henry)

that Beatty required the exclusion of all incriminating statements

obtained by the government, even if they were not induced by it.

This Court, however, did not rely on Beatty or even cite it, nor did

it in any way endorse the view that it is irrelevant whether the

defendant or the government was the moving force behind the

encounter. To the contrary, the Court found a Sixth Amendment

violation because the government had “intentionally creat{ed]” a

situation in which it was likely that the defendant would incrimi-

nate himself. 447 U.S. at 274.

The Fourth Circuit and the respondent in Henry also relied on

the Court’s summary reversal in McLeod v. Ohio, 381 U.S. 356

(1965), for the proposition that the absence of inducement by the

government is irrelevant. In McLeod, however, the defendant made

the statements to police officers while riding in a car with them; the

statements were not made to an undercover informant. Moreover,

the state court opinion under review does not disclose how the

defendant came to make the statements; the opinion instead focuses

primarily on whether the accused had a right to counsel during the

period after indictment but before appointment of counsel. State

v. McLeod, 1 Ohio St. 2d, 60, 62-63, 203 N.E. 2d 349, 351-352

(1964). In any event, this Court since has understood McLeod

as a case involving elicitation of statements by the government.

See Edwards v. Arizona, 451 U.S. 477, 484 n.8 (1981). See also

Wyrick v. Fields, 459 U.S. 42, 54 (1982) (Marshall, J., dissenting)

19

but also because the reasons for the government’s response

to that contact were quite different from the purposes

underlying the government’s actions in Massiah and

Henry. In Massiah, tne government had “instructed” the

informant “to engage Massiah in conversation relating to

the alleged crimes” (307 F.2d at 72 (Hays, J., dissent-

ing); Pet. Br. at 4, Massiah v. United States), and in

Henry the Court concluded that the government agent had

likewise instructed the informant to obtain incriminating

information from the accused that specifically related to

the very crime with which he was charged (447 U.S. at

270-271 & nn. 7-8, 272 n.10). In this case, by contrast,

the trial court found that the State recorded the con-

versations “for legitimate purposes not related to the

gathering of evidence concerning the crime for which

[respondent] had been indicted”—namely, “to gather in-

formation concerning the anonymous threats that Mr.

Colson had been receiving, to protect Mr. Colson and to

gather information concerning [respondent’s] plans to kill

Gary Elwell.” Pet. App. 48-49 (emphasis added). Cf.

New York v. Quarles, No. 82-1213 (June 12, 1984). The

Supreme Judicial Court found “ample evidence” to sup-

port that finding (Pet. App. 13). This distinction is sig-

nificant for several reasons.

1. The principal concern underlying Massiah and its

progeny is that the government might engage in secret

interrogation of the defendant for the very purpose of

circumventing the formal trial proceedings and the assist-

ance of counsel that the defendant would have in such

proceedings. See pages 8-11, supra. Thus, in Massiah it-

self, the petitioner argued that the government “must

deal through and not around an attorney retained by a

defendant under indictment.” Pet. Br. at 6, quoting 307

F.2d at 72 (Hays, J., dissenting). In Brewer, this con-

cern that the government might act in deliberate deroga-

tion of defense counsel’s role was heightened because it

(McLeod holds that “the Sixth Amendment forbids all efforts to

elicit information * * * in the absence of counsel, * * * regardless

of whether the technique used to ertract information is in any way

coercive” (second emphasis added) ).

20

was found that the police violated an express agreement

with counsel that the defendant would not be questioned

during the ride to Des Moines. 430 U.S. at 390-391, 401

n.8; id. at 410, 412 n.1, 414 n.2 (Powell, J., concurring) ;

id. at 415 (Stevens, J., concurring) .’* And in Henry the

Court similarly concluded that the government agent had

“planned an impermissible interference with the right to

the assistance of counsel.” 447 U.S. at 275.’* Compare

Estelle v. Smith, 451 U.S. 454, 470-471 (1981).

The Court consistently has stated the rule of Massiuh

in terms that respond to and seek to prevent the type of

governmental conduct just described. Thus, in Massiah,

the Court held that the Sixth Amendment was violated

because there was used against the defendant at trial evi-

dence 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” (377 U.S.

at 206 (emphasis added)). Similarly in Brewer v. Wil-

liams the Court premised the finding of a violation on the

fact that the detective had “deliberately and designedly

set out to elicit information from Williams” (430 U.S. at

399), and in Henry the Court concluded that the govern-

ment violated the Sixth Amendment because it “inter-

tionally creat[ed]” a situation likely to induce the de-

fendant to make incriminating statements (447 U.S. at

274) .*

18 See also 430 U.S. at 407 (Marshall, J., concurring) (“there can

be no doubt that Detective Leaming consciously and knowingly set

out to violate Williams’ Sixth Amendment right to counsel”); Nix

Vv. Williams, slip op. 4-5 (Stevens, J., concurring).

14 See also 447 U.S. at 275 n.14, quoting Disciplinary Rule 7-

104(A)(1) of the American Bar Association’s Code of Professional

Responsibility (“a lawyer shall not * * * [c]ommunicate or cause

another to communicate on the subject of the representation with

a party he knows to be represented by a lawyer in that matter’).

The Court’s citation to this rule suggests that it viewed the Sixth

Amendment issue in terms of a deliberate circumvention of counsel

with regard to the “subject of the representation.”

15 Compare Weatherford v. Bursey, 429 U.S. at 558, in which the

Court held that there was no Sixth Amendment violation because,

inter alia, there was no “purposeful intrusion” by the government

into the lawyer-client relationship.

21

The exclusionary rule announced in Massiah thus “serves

the salutary purpose of preventing police interference with

the relationship between a suspect and his counsel once

formal proceedings have been initiated.” Henry, 447 U.S.

at 276 (Powell, J., concurring). But the language,

origins, and function of the Massiah rule do not require

the exclusion of statements that were obtained as the re-

sult of governmental actions that were not undertaken

for the purpose of gathering information about the

crimes for which the defendant had been indicted, but

rather had an objectively justifiable independent purpose.

The concurrent finding by the courts below that the State

recorded the conversations for reasons unrelated to ob-

taining incriminating statements from respondents about

the pending charges therefore removes this case from the

ambit of the Massiah doctrine.

2.a. Other considerations support this conclusion as

well. The fact that a person is under indictment for one

crime obviously does not prevent the government from

investigating other criminal activity in which he has been

implicated. As part of such an investigation, an under-

cover informant may elicit from him incriminating state-

ments pertaining to other criminal activity as to which

charges have not been filed. And if formal charges sub-

sequently are filed against the defendant arising out of

the latter activity, Massiah does not prohibit the introduc-

tion of the previously elicited statements at the defend-

ant’s trial on those charges. See, e.g., Hoffa v. United

States, 385 U.S. 293, 307-308 (1966); Mealer v. Jones,

741 F.2d at 1453; United States v. Lisenby, 716 F.2d

1355, 1357-1359) (11th Cir. 1983) (en banc); United

States v. Moschiano, 695 F.2d 236, 240-241 (7th Cir.

1982), cert. denied, 164 U.S. 831 (1983); United States

v. Calhoun, 669 F.2d 923, 925 (4th Cir.), cert. denied,

456 U.S. 946 (1982); United States v. Missler, 414 F.2d

1293, 1302-1303 (4th Cir. 1969), cert. denied, 397 U.S.

913 (1970). Although in such circumstances the state

ments may have been intentionally obtained from the de-

fendant at a time when he had a Sixth Amendment right

to counsel with regard to the then-pending charges, the

22

elicitation of the statements in connection with the in-

vestigation of a separate crime does not constitute the

sort of direct governmental interference with the attor-

ney-client relationship that constitutes a violation of the

Massiah rule. Put another way, Massiah does not confer

on a defendant against whom an indictment has been

returned an immunity from normal law enforcement

techniques to investigate indications of other criminal ac-

tivity.’®

For the foregoing reasons, it is clear that if respondent

had been charged with obstruction of justice, Massiah

and its progeny would not bar the admission at his trial

on those charges of any incriminating statements recorded

by the State while he was under indictment only for the

theft offenses. Contrary to the holding of the Maine Su-

preme Judicial Court, we submit that the Sixth Amend-

ment likewise does not require exclusion of any such in-

criminating statements from evidence at respondent’s

trial on the theft charges. When the officers received in-

formation that Colson and various prosecution witnesses

were being threatened, and that respondent had pro-

pounded a plan to kill one of the witnesses, they unques-

tionably would have been derelict in their duty had they

failed to pursue an inquiry into these matters by all

proper investigative means at hand. Such means would

include undercover contact with respondent in an effort

to secure further information about, and to forestall con-

summation of, any proposed new offenses. Information

uncovered in such an objectively justified investigation di-

rected against independent offenses by respondent should

16 To the extent it governs law enforcement techniques, the Dis-

ciplinary Rule for attorneys cited by the Court in Henry (see note

14, supra) likewise does not prohibit communications between an

informant and the defendant with regard to suspected criminal

activity for which he had not been formally charged. See, e.g.,

United States v. Fitterer, 710 F.2d 1328, 1333 (8th Cir.), cert.

denied, 464 U.S. 852 (1983); United States v. Kenny, 645

F.2d 1323, 1339 (9th Cir.), cert. denied, 454 U.S. 828 (1981);

United States v. Vasquez, 675 F.2d 16, 17 (2d Cir. 1982); but ef.

United States v. Jamil, 707 F.2d 638, 646 (2d Cir. 1983).

23

not be excluded if relevant to the trial of charges pending

at the time of the investigation.

We recognize that there is language in Massiah that

could be read to support a contrary result, but there are

material differences between that case and this one that

counsel against an overbroad reading of Massiah in this

regard. The government argued that the incriminating

statements at issue in Massiah should not be suppressed

because federal law enforcement agents had an interest

in continuing their investigation of Massiah and his as-

sociates in order to find out the source and intended

buyer of the narcotics and to uncover the full scope of the

well-organized drug ring in which petitioner appeared to

be involved. 377 U.S. at 206. The Court was prepared

to assume that it was entirely proper for the government

to continue that investigation (id. at 206-207), but it

nevertheless held that “the defendant’s own incriminating

statements, obtained by federal agents under the circum-

stances here disclosed, could not constitutionally be used

by the prosecution as evidence against him at his trial”

(id. at 207 (emphasis in original) ). This passage in the

Massiah opinion does not require exclusion of respond-

ent’s incriminating statements in this case.

Massiah had been indicted in connection with the im-

portation of cocaine. 377 U.S. at 202. Although the gov-

ernment had an obvious interest in continuing its inves-

tigation (especially in order to detect the activities of

other persons who had not yet been charged), insofar as

Massiah himself was concerned, any such investigation

of the narcotics ring necessarily pertained directly to the

criminal activities for which he already had been indicted.

Moreover, the Court’s specific holding, quoted above, was

that Massiah’s statements “obtained by federal agents un-

der the circumstances here disclosed” were inadmissible

against him; the circumstances disclosed were that the

informant had been specifically instructed to obtain in-

formation from Massiah about the alleged crimes. See

page 7, supra.

The government’s argument in Massiah to which the

passage in question responds had the flavor of a post hoe

24

rationalization of conduct that, at its inception, in fact

had as a primary purpose the obtaining of evidence for

use at trial on the pending charges. If the Court in

Massiah had fashioned an exception permitting the ad-

mission of Massiah’s statements on the basis of the gov-

ernment’s assertion that it had a general ongoing interest

in investigating related offenses, that exception might well

have swallowed the rule the Court fashioned to prevent

intentional interference with the attorney-client relation-

ship concerning the crimes with which the defendant is

already charged. But where, as here, the investigation

was undertaken for reasons entirely distinct from any de-

sire to procure incriminating statements from the defend-

ant concerning the crimes with which he already has been

charged, the question is not one of fashioning an “excep-

tion” to the Massiah rule. The rule itself simply does not

apply. And whatever difficulty there might be in some

cases in teasing out the motives for governmental action,

the record in this case unequivocally demonstrates an ob-

jective basis on which it can be determined that the gov-

ernmental action was not a subterfuge to circumvent the

policies of the Massiah rule, and both courts below so

found (Pet. App. 12-13, 48-49).

17The Supreme Judicial Court characterized the trial court’s

fnding that the recordings were made for legitimate purposes as

focusing on the “motives” of the police. See Pet. App. 12, 14. The

court acknowledged that this “legitimate motive” was relevant to

the alleged infringement of respondent’s right to counsel, but did

not find it dispositive. Jd. at 14. Perhaps some inquiry into subjec-

tive motivation is inevitable, given the problem of intentional

interference to which the Massiah rule is addressed and the result-

ing emphasis in the test on whether a “deliberate” elicitation

occurred. However, there is no need here to consider the relative

roles of a subjective and objective inquiry into the purpose of the

police endeavor, because by either measure there is “ample evidence”

to support the conclusion that the recordings had a legitimate basis

independent of any desire to obtain incriminating statements about

the thefts (Pet. App. 12-13). Compare New York v. Quarles, No.

82-1213 (June 12, 1984), slip op. 6.

The Supreme Judicial Court believed that a different result was

required because it was foreseeable to the Belfast Police that re

spondent would make incriminating statements pertaining to the

25

In sum, a “separate crimes” doctrine draws support

from the principles of Massiah, establishes a clear and

objective test, and accomplishes an appropriate accom-

modation of the defendant’s interest in protecting his

relationship with his attorney against interference by the

government and society’s countervailing interest in the

investigation of crime and the safety of its citizens.

b. In accordance with the principles just discussed, a

number of courts of appeals have held that Massiah does

not apply in cases involving investigations of separate

crimes. In Grieco v. Meachum, 533 F.2d 713, 717-718

(1st Cir.), cert. denied, 429 U.S. 858 (1976), the First

Circuit held that statements by the defendant, who was

under indictment for murder, offering to pay a jail-house

informant $50,000 to confess to the murder were prop-

erly admitted at the murder trial, apparently as admis-

sions tending to show the defendant’s consciousness of

guilt for the murder (id. at 717). The court reasoned that

exclusion of relevant, otherwise admissible testimony is a

remedy for a past violation c* the Constitution and that

there was no violation of the defendant’s constitutional —

rights in obtaining the defendant’s statements concerning

a separate crime, subornation of perjury (id. at 71T-

718). The court stressed, however, that the government in

that case had “acted in good faith in investigating another

thefts in the course of the December 26 meeting. See Pet. App. 15-16.

Foreseeability, however, is not the test. The government must have

“intentionally creat[ed]|" the situation in which the defendant was

induced to make incriminating statements. Henry, 447 U.S. at 274.

As we have shown in Point A, it was respondent, not the State, who

created the situation here. And as we have explained in this

Point B, the State’s investigation did not in any event have the

focused purpose of eliciting statements about the pending charges.

Thus, even if Chief Keating should have anticipated that respond-

ent would discuss the theft charges, the relevant question would be

whether the State recorded the statements because of, rather than

in spite of, that consequence. Cf. Wayte v. United States, No. 83-

1292 (Mar. 19, 1985), slip op. 11. The courts below found that it

did not.

26

crime” and that the result might have been different if

the government’s actual intention had been to obtain tes-

timony for use in the murder trial (id. at 718). In the

latter event, of course, the ostensibly independent inves-

tigation would have been a pretext for a direct intrusion

into the attorney-client relationship concerning the mur-

der charges and thus a “deliberate elicitation” of incrimi-

nating statements about those charges within the meaning

of Massiah. Accord, United States v. DeWolf, 696 F.2d

1, 2-3 (1st Cir. 1982).

The Seventh, Ninth, and Eleventh Circuits have fol-

lowed the First Circuit’s decision in Grieco and concluded

that Massiah is inapplicable in such circumstances. See

United States v. Merritts, 527 F.2d 713, 715-716 (7th

Cir. 1975) ; United States v. Moschiano, 695 F.2d 236, 240-

243 (7th Cir. 1982), cert. denied, 464 U.S. 831 (1983)**;

United States v. Taxe, 540 F.2d 961, 968-969 (9th Cir.

1976), cert. denied, 429 U.S. 1040 (1977); United

States v. Darwin, No. 82-5794 (11th Cir. Apr. 16, 1985),

slip op. 3002-3005. But see Mealer v. Jones, 741 F.2d

at 1453-1455. The Eleventh Circuit explained that per-

mitting the use of the statements obtained in the separate

investigation will protect the “societal interest in law

enforcement,” while “[b]arring use of the evidence where

there is bad faith or pretext will tend to inhibit the gov-

ernment from overreaching and from doing indirectly

what Massiah prohibits it from doing directly.” United

States v. Darwin, slip op. 3004-3005.

For the most part, the statements admitted into evi-

dence in the cases just discussed related directly to the

separate crime that was the subject of investigation, not

the original offense with which the defendant was

charged. But see United States v. Darwin, slip op. 3001-

3002. In this case, on the other hand, the particular

18 The Seventh Circuit in Moschiano specifically rejected the con-

tention that Grieco was effectively overruled by Henry, observing

that Henry “did not address the issue whether post-indictment

statements relating to new criminal activity could be used to prove

the charges in the pending indictment.” 695 F.2d at 242 n.8.

27

statements introduced at respondent’s trial related to the

theft offenses themselves. J.A. 113-152."° But contrary to

dicta in several of the opinions just discussed, that dis-

tinction is not significant for purposes of the Massiah

doctrine.

It is of course true that statements relating to the

present or future commission of a crime are not protected

by any constitutional or other privilege. For that reason

alone, Massiah does not preclude their admission into evi-

dence at the trial on the original offense. See page 28, in-

fra.” While this factor is therefore a sufficient condition

for admission of statements obtained in the course of in-

vestigating other offenses by the defendant, it is not a nec-

essary one. Application of the Massiah exclusionary rule

turns on the basis for and purpose of the investigation,

not the nature of the evidence it yields. Where, as here,

the State engaged in a bona fide investigation into mat-

ters independent of the crimes with which the defendant

was charged, all evidence obtained through that investiga-

tion should be regarded for present purposes as having

lawfully come into the State’s hands. Such evidence then

may be used in any proceeding in which it is relevant.

Thus, in this case, because the State properly recorded

the December 26 meeting between respondent and Colson

as part of an independent investigation into efforts to ob-

struct justice, Massiah did not require the exclusion at

the theft trial of respondent’s incriminating statements

that were recorded in that investigation, whether or not

those statements also constituted or referred to separate

crimes.

19 One portion of the transcript did touch upon the subject of

producing false testimony at trial (see J.A. 146-150).

20In the present case, for example, evidence of respondent’s

plans to eliminate government witnesses, or to produce false testi-

mony at trial, presumably would heve been admissible at respond-

ent’s trial on the theft charges to show consciousness of guilt. See,

e.g., United States v. DeWolf, 696 F.2d at 3; Grieco v. Meachum,

533 F.2d at 717.

28

C. BECAUSE THERE IS NO RIGHT TO THE ASSIST-

ANCE OF COUNSEL IN CONNECTION WITH

OBSTRUCTION OF JUSTICE, THE MASSIAH EX-

CLUSIONARY RULE SHOULD NOT APPLY TO

FRUITS OF AN OBJECTIVELY JUSTIFIABLE IN-

VESTIGATION OF SUCH ACTIVITIES

In this case, the Belfast Police not only were conduct-

ing a legitimate independent investigation into past

threats made to potential prosecution witnesses, but they

also had reason to believe that there would be discussions

at the December 26 meeting of plans for further obstruc-

tion of justice by means of threats or harm to witnesses.**

Such aggravating circumstances were wholly absent in

Massiah and Henry.

A person has no right to the assistance of counsei in

the commission or planning of a crime. United States V.

Darwin, slip op. 3005; United States v. Merritts, 527

F.2d at 716. As this Court remarked with regard to the

attorney-client evidentiary privilege (Clark v. United

States, 289 U.S. 1, 15 (1933)):

The privilege takes flight if the relation is abused.

A client who consults an attorney for advice that

will serve him in the commission of a fraud will

have no help from the law. He must let the truth be

told.

See, e.g., Grieco Vv. Meachum, 533 F.2d at 718 n.4; In re

Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1038-

1041 (2d Cir. 1984); United States v. Dyer, 722 F.2d

174, 177-178 (5th Cir. 1983). The same principle must

apply in the context of the Massiah rule, which also is

designed to protect the attorney-client relationship. It

therefore would be inconsistent with the underpinnings of

Massiah—indeed, a perversion of, Massiah’s right to

counsel rationale—to require the exclusion of evidence of

a person’s incriminating statements that were the prod-

uct of a good faith investigation into his post-indictment

21 The police also were concerned about Colson’s own safety if

respondent had discovered that he was cooperating with the police.

Ne a

29

unlawful plans and activities. That is especially so here.

The future crime with which the Belfast Police were con-

cerned in this case—obstruction of justice—is one cal-

culated to undermine the very integrity of the adversary

process and the fairness of the trial that the Sixth

Amendment rule announced in Massiah is intended to

preserve. See 377 U.S. at 204, 206; see also Nix v. Wil-

liams, slip op. 13-14.”

In this case, the statements that were actually intro-

duced at trial pertained largely to the theft offenses,

not to the possible obstruction of justice that prompted

the investigation. Bui as we have explained (see page

27, supra), application of the Massiah rule turns on the

nature of the investigation, not the nature of the evidence

it produces. Accordingly, the legitimacy of the State’s

recording of the December 26 meeting must be viewe?

from the position of the police prior to that meeting,

when they arranged for Colson to record it. There seems

little doubt that the police at that time had, as a result

of respondent’s own actions and statements, a “reason-

able basis to suspect” ** that respondent would discuss

*2In Beatty v. United States, discussed in note 12, supra, evi-

dence of threats made to the government’s informant in order to

deter him from testifying was introduced at trial along with other

incriminatory statements. See 377 F.2d 181, 184 (5th Cir. 1967).

Although the Fifth Circuit relied on that factor in distinguishing

Massiah (377 F.2d at 190), the government in its brief in opposi-

tion in this Court did not make the argument, which has since been

accepted by a number of courts of appeals (see pages 25-26, supra),

that no Sixth Amendment violation occurs as a result of the admis-

sion of statements relating to obstruction of justice because there is

no right to counsel in connection with such conduct. See Br. in Opp.

5-9. There also is no indication in Beatty that the government had

reason to suspect prior to the meeting that the defendant would

discuss or engage in obstruction of justice. The Court’s summary

reversal in Beatty therefore does not constitute a considered rejec-

tion of the argument in the text. In any event, for the reasons given

in note 12, supra, Beatty should not be followed here.

23 See In re Grand Jury Subpoena Duces Tecum, 731 F.2d at 1039

(describing the showing necessary to invoke the crime-or-fraud

exception to the attorney-client privilege). Similarly, in Clark v.

30

plans to harm prosecution witnesses and thereby obstruct

justice in the pending prosecution. And as it turned out,

respondent, in fact did discuss such plans, as well the

possibility of introducing false testimony at trial. Be-

cause the courts below found that this was one of the

State’s legitimate purposes for the investigation, and

because there is no suggestion of pretext or bad faith,

respondent’s statements obtained as a result of that meet-

ing could not properly be excluded on right to counsel

grounds.

CONCLUSION

The judgment of the Supreme Judicial Court of Main>

should be reversed.

Respectfully submitted.

REX E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

KATHLEEN A. FELTON

Attorney

May 1985

United States, supra, the Court stated that “[t]o drive the privilege

away, there must be ‘something to give colour to the charge:;’ there

must be ‘prima facie evidence that it has some foundation in fact.’ ”

289 U.S. at 15, quoting O’Rourke v. Darbishire [1920] A.C. 581,

604. See also Jn re Sealed Case, 676 F.2d 793, 814 n.84 (D.C. Cir.

1982). In light of past threats in this case, the State’s concerns

plainly had “‘some foundation in fact.” See also Jn re International

Systems & Controls Corp., 693 F.2d 1235, 1242 & n.11 (5th Cir.

1982); In re Sealed Case, No. 84-5388 (D.C. Cir. Feb. 8, 1985),

slip op. 7-8 & n.3.

WU. 8. GOVERNMENT PRINTING OFFICE; 1985 461531 102186