SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS, GARTH and HIGGINBOTHAM, Circuit Judges
The petition for rehearing filed by Appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. A separate opinion Sur Denial of Petition for Rehearing is being filed by Judge Garth, joined in by Judge Adams and Judge Rosenn.
BY THE COURT, JAMES HUNTER, III, Circuit Judge
GARTH, Circuit Judge , dissenting from Order denying Petition for Rehearing:
I vote to grant the government's petition for rehearing in banc . In my view, the panel opinion, which will now become the law of this circuit, has reached an illogical result -- a result which bears no relationship to the evil which the panel has properly condemned. In this case government agents sought to interfere with the relationship between a criminal defendant and her counsel. However, despite an acknowledged absence of prejudice to the defendant, the panel in finding a sixth amendment violation has ordered that the defendant's indictment be dismissed -- a sanction without precedent in this or other circuits.
Inasmuch as under this circuit's operating procedures, only a court in banc may override a panel's published opinion (Internal Operating Procedure p.25), I have voted for the court in banc to reconsider the panel's decision in this case -- a decision which I believe to be seriously flawed, in both analysis and result.
Hazel Morrison, the defendant-appellant, was indicted on June 28, 1978 on two counts of illegally distributing heroin in violation of 21 U.S.C. § 841(a)(1). On May 31, 1978, Salvatore Cucinotta, Morrison's attorney, met with an Assistant United States Attorney and with Dennis Maloy, an agent of the Drug Enforcement Agency (D.E.A.), for purposes of engaging in pretrial negotiations. Therefore, at least from May 31, 1978 on, the government knew that Morrison was represented by counsel. On August 23, 1978, D.E.A. agents Stephen Hopson and James Bradley visited Morrison's home without the knowledge or permission of her counsel.*fn1 According to the panel opinion, Slip Op. at 3,
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.
Undaunted by this encounter, Morrison immediately called her attorney, who came to her home. In Cucinotta's presence, Morrison called the telephone number given her by Hopson. Apparently in an attempt to verify the misconduct of the D.E.A. agents, she made plans to meet Hopson between noon and 1:00 p.m. of the next day. Hopson did not arrive at the scheduled time, however, but came instead at 6:00 p.m. He departed upon being informed by Morrison that she had company and could not speak, and that in any event she wanted her attorney present. The next day, August 25, 1978, Morrison received another visit from Hopson. According to Hopson's testimony he repeated the statements he had made during his first visit.
Prior to trial, Morrison 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. This motion was denied without opinion by the district court. Immediately thereafter, appearing with her same attorney Salvatore Cucinotta, Morrison entered a conditional plea of guilty to one count of distribution. She was sentenced to five years imprisonment, followed by a special parole term of three years. On appeal, a panel of this court reversed the judgment of sentence and remanded to the district court with an order to dismiss the indictment with prejudice because the government had interfered with Morrison's sixth amendment right to counsel!
There can be no excuse made for the improper conduct of the D.E.A. agents in this case. Nonetheless, I most strenuously disagree with the analysis and the result of the panel opinion. The logic of the panel opinion will simply not bear scrutiny. Apparently because the panel cannot think of an appropriate sanction to correlate with the nonprejudicial, albeit inexcusable, conduct of the government in this case, it has decided to impose the extreme sanction of dismissing the indictment. The infirmity in the reasoning of the panel opinion is compounded by the result. ...