APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF EASTERN PENNSYLVANIA D.C. Crim. No. 78-00193
Before Hunter and Weis, Circuit Judges, and Markey, Chief Judge, of the Court of Customs and Patent Appeals.*fn* Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth and Higginbotham, Circuit Judges.
On June 28, 1978, the Appellant, Hazel Morrison, was indicted on two counts of illegally distributing heroin in violation of 21 U.S.C. § 841(a)(1) (1976). Prior to trial, she filed a Motion to Dismiss the Indictment with Prejudice, alleging denial of her sixth and fourteenth amendment right to effective assistance of counsel and her fourteenth amendment right to a fair trial. The motion to dismiss was heard in the United States District Court for the Eastern District of Pennsylvania and was denied without opinion. Immediately after the announcement of the district court's decision denying the motion, Morrison entered an open conditional plea of guilty to one count of distribution.*fn1 She was subsequently sentenced to five years imprisonment, with a special parole term of three years to follow.
The record in this case shows that agents of the Drug Enforcement Agency effected a willful and unjustified interference with Mrs. Morrison's sixth amendment right to counsel.*fn2 We conclude that both counts of the indictment against Morrison should be dismissed with prejudice.
On May 31, 1978, Salvatore Cucinotta, Morrison's lawyer, met with Assistant U.S. Attorney Jack Riley and D.E.A. agent Dennis Malloy for the purpose of engaging in pre-trial negotiations. At least from that date, the government knew that Mrs. Morrison was represented by counsel. Subsequently, agent Malloy was contacted by another D.E.A. agent, Stephen Hopson. Hopson was engaged in the investigation of a heroin dealer, and wished to gain Mrs. Morrison's cooperation in that investigation. Malloy was aware that Hopson wanted to negotiate with Mrs. Morrison, and knew that Hopson wished to "solicit her cooperation." Malloy discussed the case against Morrison "generally" with Hopson, and Hopson was allowed to examine the file on defendant's pending trial. Hopson also had "two or three" conversations with Assistant U.S. Attorney Riley in which Morrison's "name came up".
On August 23, 1978, D.E.A. agents Hopson and James Bradley visited defendant's home with neither the knowledge nor the permission of her counsel. At that time Hopson questioned Mrs. Morrison about the source of her heroin during the period prior to her arrest; suggested that she was facing a stiff jail term;*fn3 observed that he could make recommendations to the U.S. Attorney as to whether she should receive a lenient or heavy sentence; and told her about the government's protection plan for informers. Hopson also questioned Mrs. Morrison about how much money she was to pay Mr. Cucinotta. He then stated that he had seen her counsel's work, and suggested to Mrs. Morrison that she retain a public defender instead. He also urged her to obtain the services of a public defender if she wished to cooperate with the D.E.A. Finally, he suggested that she should think about the quality of the representation that she would receive for the amount of money ($200) that she was paying attorney Cucinotta. Upon departing, he gave defendant his telephone number.
Mrs. Morrison immediately called attorney Cucinotta, who went to her home. While he was there, Morrison called the number she had been given and made plans to meet agent Hopson between noon and 1:00 p. m. of the next day. However, that next day Hopson did not arrive as scheduled, but appeared without warning at about 6:00 p. m. The defendant told him that she had company and couldn't speak, and that in any event she wanted her lawyer present. Hopson departed. One day later Mrs. Morrison received yet another surprise visit from agent Hopson. According to Hopson's testimony he repeated the statements he had made during his first visit.
The government "readily concedes that the agents erred in attempting to elicit the cooperation of Morrison without working through her attorney." On these facts, we are confronted with neither the proverbial constable's blunder, not overzealousness in the pursuit of otherwise legitimate law enforcement ends. Rather, we have a pattern of conduct calculated to intrude upon and destroy the attorney-client relationship.
The government presents us with two threshold questions which must be answered before we may consider the advisability of granting such extraordinary relief as dismissal of the indictment. First, it contends that we are precluded by Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977), from granting any relief at all. Second, it claims that, even if there has been a sixth amendment violation, dismissal of the indictment is not a permissible remedy.
The government reads Weatherford as holding that, in the absence of demonstrable prejudice, no sixth amendment violation occurs. We disagree. In Weatherford, the Supreme Court was asked to determine whether the presence of an undercover police officer at a strategy meeting between a defendant and his counsel amounted to a constitutional violation. The police officer, when in fact invited by the defendant, attended exclusively for the purpose of preserving his undercover identity and did not relate anything that he had heard during the course of the meeting. The Court of Appeals for the Fourth Circuit concluded that "whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial." Bursey v. Weatherford, 528 F.2d 483, 486 (4th Cir. 1975). The Supreme Court reversed, reasoning that not every intrusion into the attorney-client relationship is a violation of the sixth amendment right to counsel, and rejected the Fourth Circuit's Per se test. The Court's decision was a narrow one. The Court held only that "(t)here being no tainted evidence in this case, no communication of defense strategy to the prosecution, and no purposeful intrusion by Weatherford, there was no violation of the sixth amendment." 429 U.S. at 558, 97 S. Ct. at 845. This holding is not broad enough to support the interpretation that the government urges upon us, namely that mere failure to gain evidence or tactical advantage from an intrusion bars any finding of a sixth amendment violation.
Weatherford applies, in the eavesdropping context, when there is Both no prejudice to defendant's case And no wrongly motivated intrusion into the attorney-client relationship. This leaves untouched a vast range of conduct which does constitute a recognizable violation of the right to effective assistance of counsel.*fn4 In the case of a deliberate attempt actually to sever or otherwise to interfere with the attorney-client relationship, a much more explicitly intrusive offense, the analysis must proceed differently. Here, it is appropriate to consider the purpose and propriety of the agent's conduct and its effect on the defendant's rights and the attorney-client relationship.*fn5 We had cause to consider this issue in Via v. Cliff, 470 F.2d 271 (3d Cir. 1972). There, prison officials were accused of wrongfully preventing an attorney from contacting his prisoner-client during the period immediately before trial. We advanced the test that, "(if) the interference was either wrongly motivated or without adequate justification, (it constitutes) an infringement of (the) constitutional right to counsel." Id. at 275.
This test for wrongfully motivated or inadequately justified interference is entirely consistent with the rationale of Weatherford, which itself identified purpose as a factor to be considered in the context of challenged eavesdropping. Indeed, since in Weatherford the police officer intruded only to the extent that it was necessary to be physically present at defense meetings to preserve his cover, the intrusion was neither wrongly motivated nor without adequate justification, and would have been upheld under the Via test.*fn6 Accordingly, we conclude that Weatherford does not bar us from finding a violation on the facts before us.
The government next advances the contention that even if we find a sixth amendment violation, we are limited to ordering either suppression of evidence or a new trial. The government argues that since neither of these orders would be appropriate in this case, we are precluded from granting any relief at all. We readily agree that suppression or new trial are frequently appropriate forms of relief for sixth amendment violations. The government has cited a number of our previous decisions wherein such relief was ordered. However, none of those cases even suggests the novel rule that these two forms of relief are ...