Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 CR 546 -- Susan Getzendanner, Judge.
Cummings, Chief Judge, Gibson, Senior Circuit Judge,*fn* and Cudahy, Circuit Judge.
These consolidated appeals arise out of the joint trial of defendants Louis Moschiano and Robert Fred "Pete" Bishop on charges of conspiracy to distribute heroin (Count One) and distribution of heroin (Count Two) in violation of 21 U.S.C. §§ 841(a) (1), 846 (1976). The jury found Moschiano guilty on both counts but found Bishop guilty only on Count One.*fn1 Moschiano, who asserted at trial a defense of entrapment, assigns as error the admission into evidence of his own statements made during the course of a post-indictment drug transaction; this evidence was offered by the government to prove Moschiano's predisposition to commit the offense charged. Bishop contends on appeal that he was prejudiced by the joint trial and that his motions for severance were erroneously denied. We affirm the convictions of both defendants.
We also have before us the appeal of respondent Stephen M. Komie, counsel for Bishop, who was found guilty of criminal contempt by the trial court for his pursuit of a prohibited line of questioning during the trial. Because we conclude that the district court improperly resorted to summary procedures, we reverse Komie's conviction and remand the case for plenary disposition.
The criminal charges in the instant case were the product of a fairly typical undercover investigation by the Drug Enforcement Administration ("DEA"). This investigation culminated on September 11, 1980, in the sale by Moschiano of one pound of heroin to confidential informant Robert Milas and DEA Agent Arthur Tahauri. We briefly recite the facts relating to this transaction, which are largely undisputed, as well as the other evidence bearing on these appeals.
On September 8, 1980, Milas met Moschiano at a restaurant in Calumet City and discussed the purchase of heroin from him. Moschiano said that the heroin would cost $1,600 an ounce and also showed Milas some heroin in the trunk of his car. The next day, Moschiano called Milas to say that he had something for Milas, and the two met later in the day to examine a cellophane bag containing what Moschiano represented was heroin. Milas and Moschiano agreed to meet again on September 11 to complete the sale.
Milas was accompanied at the September 11 meeting by Agent Tahauri, who posed as Milas' buyer. Moschiano was accompanied by Bishop, who was there, according to Moschiano, to negotiate the deal. Bishop got into Agent Tahauri's car and the two discussed the proposed sale, agreeing finally on the sale of one pound of heroin for a price of $22,000. Moschiano and Bishop departed, presumably to get the heroin, but returned empty-handed, demanding to see their buyers' money before delivering the goods. Eventually, Moschiano returned to the scene alone and handed Agent Tahauri a paper bag containing heroin, boasting that, "This is the best heroin you can have in the area." Moschiano was immediately placed under arrest. Bishop was arrested more than two months later.
At trial Bishop did not present any evidence. Based on the cross-examination of government witnesses and on the testimony of Moschiano, Bishop argued that he was an unwitting participant in, or had withdrawn from the scheme to sell heroin. Specifically, Bishop relied on testimony by Milas that he was surprised to see Bishop with Moschiano on September 11 and that he heard Bishop say, "I don't want anything to do with it. It is all Lou's deal." Moschiano also testified that he never told Bishop that he was selling heroin and that Bishop walked out when he discovered the truth.
Moschiano asserted a defense of entrapment and testified in his own behalf. In summary, Moschiano's testimony was that Milas had, since April 1980, repeatedly asked Moschiano to sell him drugs and that in order to get Milas off his back he decided to play "big shot" by supplying Milas with the requested heroin. Moschiano freely admitted that he delivered the heroin to Agent Tahauri on September 11, but he insisted that it was all Milas' idea.*fn2
To discharge its burden of rebutting Moschiano's entrapment defense, raised in opening argument, the government introduced in its case-in-chief evidence of Moschiano's participation in other narcotics transactions occurring prior to his arrest on September 11, 1980. In June 1980, Moschiano agreed to sell an undercover DEA Agent one ounce of cocaine; this deal ultimately failed when the white powder tendered by Moschiano was discovered not to be cocaine. In August 1980, Moschiano negotiated a purchase of 300 to 500 pounds of marijuana from Milas; this transaction was not consummated because Moschiano was unable to raise the necessary money. These two transactions were placed in evidence by the testimony of government agents and by tape recordings of conversations involving Moschiano.
Following Moschiano's testimony about entrapment, the government offered in rebuttal the testimony of DEA Agent Richard Kazmar. His testimony figures in all three appeals presently under consideration. Agent Kazmar was allowed to testify that on December 5, 1980, approximately one month after the return of the indictment against the defendants, he met with Moschiano, posing as a pharmaceuticals salesman. Moschiano asked Agent Kazmar to sell him 50,000 Preludin*fn3 tablets, and indicated that he intended to sell the pills to truck drivers. Agent Kazmar told Moschiano that the price for these pills would be approximately $50,000. During the course of this conversation, Moschiano also made a number of statements concerning his previous heroin sale and subsequent arrest on September 11. Agent Kazmar testified that he met with Moschiano on two subsequent occasions but that the negotiations were discontinued by Moschiano because he thought he was being followed. The proposed transaction was never consummated.
Moschiano's appeal focuses exclusively on the testimony of DEA Agent Kazmar. As indicated above, Agent Kazmar was permitted to testify at trial that after Moschiano's indictment, he met with Moschiano and, posing as a pharmaceuticals salesman, negotiated an illegal sale of $50,000 worth of Preludin tablets to Moschiano. Significantly, the government sought to introduce Moschiano's statements only with respect to the Preludin negotiations and did not seek to use Moschiano's admissions relating to the pending heroin charges. Agent Kazmar's testimony was offered by the government on two theories: as evidence of Moschiano's predisposition to commit the heroin offenses charged in the indictment, and also as evidence impeaching certain statements made by Moschiano during cross-examination. The district court accepted the testimony on both theories but we consider the evidence only with respect to Moschiano's entrapment defense because the district court instructed the jury to consider Agent Kazmar's testimony for this purpose only, without mentioning impeachment.
Moschiano contends that Agent Kazmar's testimony was inadmissible for two reasons. First, Moschiano argues that the introduction into evidence of his own statements, deliberately elicited by a government agent in the absence of counsel, violated the sixth amendment right to the assistance of counsel, as enunciated in Massiah v. U.S., 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964). Second, he maintains that evidence of subsequent crimes is inadmissible under Rule 404(b) of the Federal Rules of Evidence when offered to prove predisposition. We address these claims in turn, reject both of them, and affirm Moschiano's conviction.*fn4
Our starting point in analyzing Moschiano's sixth amendment claim is the Supreme Court's decision in Massiah v. U.S., 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964). In that case, the defendant, after having been indicted and having retained counsel, made incriminating statements to his co-defendant (turned government informer), in whose car government agents had installed a radio transmitter. At trial, the defendant's incriminating statements were brought before the jury through the testimony of the government agent who monitored the receiving device. The Court held that the defendant
was denied the basic protections of that guarantee [assistance of counsel under the sixth amendment] 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 counsel.
377 U.S. at 206. See also United States v. Henry, 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183 (1980); United States v. Malik, 680 F.2d 1162 (7th Cir. 1982). This holding rests on the proposition that once adversary proceedings have been commenced against an individual, he has a right to legal representation when the government interrogates him. Brewer v. Williams, 430 U.S. 387, 401, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977).
The Court in Massiah made clear, however, that it was entirely proper to continue the investigation of the suspected criminal activities of the defendant even though he had already been indicted. 377 U.S. at 207. It is equally clear that Massiah offers no immunity from liability for uncounseled, post-indictment statements that involved criminal acts or constituted criminal acts in themselves. Such statements, even though deliberately elicited by government agents after indictment and in the absence of counsel, may form the basis for a separate or superseding indictment and may be offered to prove such additional charges. Hoffa v. U.S., 385 U.S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966); United States v. Hinton, 543 F.2d 1002, 1014-15 (2d Cir.), cert. denied, 429 U.S. 980, 97 S. Ct. 493, 50 L. Ed. 2d 589 (1976); United States v. Osser, 483 F.2d 727, 730-34 (3rd Cir.), cert. denied, 414 U.S. 1028, 38 L. Ed. 2d 321, 94 S. Ct. 457 (1973); United States v. Missler, 414 F.2d 1293, 1302-03 (4th Cir. 1969), cert. denied, 397 U.S. 913, 25 L. Ed. 2d 93, 90 S. Ct. 912 (1970). The case before us poses a somewhat different question. Moschiano's post-indictment statements concerning the proposed purchase of Preludin tablets involved a separate crime (and thus could have been included in a separate or superseding indictment), but were offered into evidence at the trial on the charges in the indictment pending at the time of the Preludin negotiations. This situation, not directly controlled by Massiah, has been considered in only a few cases.
One such case is our own decision in United States v. Merritts, 527 F.2d 713 (7th Cir. 1975). In Merritts, the defendant, the president of a school board, was charged with using interstate facilities with intent to commit a crime of violence to further an illegal activity. 18 U.S.C. § 1952 (1976). Specifically, he was accused of plotting the murder of a fellow school board member in order to prevent interference with the defendant's continued receipt of kickbacks from the school district's suppliers. After the return of the indictment against him, the defendant attempted to contact one supplier to negotiate a kickback. The supplier reported the incident to the FBI and agreed to follow the FBI's instructions to go along with the defendant's overtures. A meeting between the defendant and the supplier was arranged, during which the defendant made some admissions bearing on his guilt of the crime for which he had been indicted, and he also solicited a bribe from the supplier. This conversation was recorded on a hidden device. Subsequently, the government secured a superseding indictment to include the solicitation of the bribe. In fact, this new allegation was an essential element of the crime previously charged because the original indictment had omitted an allegation of the performance of an act. The government sought to introduce at trial the post-indictment conversation as proof of this element of the offense.*fn5
This court held that Massiah did not prohibit the admission of the evidence concerning the solicitation of the bribe:
Massiah applies to incriminating statements about past conduct obtained after indictment through the equivalent of police interrogation. It does not confer immunity for utterances, such as Merritts' solicitation of a bribe, which are not statements about past conduct but constitute criminal acts in themselves. It does not confer a right to the assistance of counsel in committing a new crime or in completing an old one.
527 F.2d at 716. Thus, we held that it was permissible for the government to use as substantive evidence of guilt on the pending indictment uncounseled, post-indictment statements that constituted criminal acts and did not refer to past misconduct.
We adhere to this distinction between post-indictment statements relating to new criminal acts and post-indictment statements constituting admissions of past wrongdoing.*fn6 The former are generally outside the protection of Massiah because no person has a constitutional right to the assistance of counsel while committing a crime. The latter type of statements are generally not admissible at trial on the pending indictment because they do not represent or evidence the commission of a separate crime and because they are the kind of utterances for which the assistance of counsel could legitimately play a useful role. In the instant case, Moschiano's post-indictment statements concerned a separate crime -- the attempted purchase of Preludin tablets without a prescription -- and were therefore unprotected by the exclusionary rule of Massiah.*fn7
Further support for this conclusion may be found in the First Circuit's decision in Grieco v. Meachum, 533 F.2d 713 (1st Cir.), cert. denied, 429 U.S. 858, 97 S. Ct. 158, 50 L. Ed. 2d 135 (1976). In that case, a habeas corpus petitioner (Cassesso) was charged in state court with crimes related to the murder of one Edward Deegan. After indictment and while incarcerated pending trial, Cassesso through an intermediary approached a fellow prisoner, Glavin, who was then serving a life sentence. Cassesso offered Glavin $50,000 if he would confess to the Deegan murder. Glavin contacted the FBI, who advised him to speak to Cassesso as if he were going along with Cassesso's plan. At trial, Glavin testified to Cassesso's post-indictment conversations with him. These statements were presumably received as admissions by a defendant tending to show a guilty consciousness.
Denying habeas corpus relief, the court in Grieco rejected Cassesso's argument that Massiah precluded the introduction at the murder trial of evidence of his conversations with Glavin. Distinguishing Massiah, the court stated that "Cassesso's statements . . . were primarily uttered in the commission of another substantive offense, subornation of perjury, and were only incidentally admissible in his trial on the pending indictment." 533 F.2d at 717 (footnote omitted). Thus, as in Merritts, the court in Grieco considered it dispositive that the post-indictment statements sought to be introduced at trial on the pending indictment constituted criminal activity. It would be a different case, the court continued, "had the statements of Cassesso been innocuous except for their implication of consciousness of guilt of the prior crime. . . ." 533 F.2d at 718. Accordingly, Grieco confirms this court's holding in Merritts that post-indictment statements which are criminal acts in themselves may be introduced, where appropriate, at the trial of the charges alleged in the indictment pending at the time the utterances were made.*fn8
The Grieco court went further, however, and announced an additional limitation on its holding. Noting that its decision might have been different "had the government's intention been to obtain testimony against Cassesso for use at the trial for Deegan's murder," the court emphasized that the government had acted in good faith in investigating another crime. 533 F.2d at 718. We would concede that at least in egregious cases, Massiah would prohibit the use of evidence of post-indictment criminal activity under circumstances in which that evidence was procured not through an independent investigation into continuing or separate criminal activity but instead through a confrontation with government agents engineered for the purpose of creating evidence to use against the defendant at the trial of the indicted offenses. One such case is United States v. Anderson, 523 F.2d 1192, 1195-96 (5th Cir. 1975), in which the court reversed a defendant's conviction on narcotics charges because of a Massiah violation. The court observed that the ...