APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 79-00085-02)
Before Weis and Garth, Circuit Judges, and Miller,*fn* Judge.
Appellant Van Scoy was convicted by a jury of aiding and abetting murder in the second degree at the United States Penitentiary, Lewisburg, Pennsylvania, under 18 U.S.C. §§ 1111 and 2. On April 24, 1980, he was sentenced to custody of the Attorney General for a period of twenty-five years to commence upon expiration of a sentence he was then serving. From the district court's judgment, Van Scoy appeals. We affirm.
An original indictment by the grand jury was returned against Van Scoy and one Ronald Lee Kesting, both sentenced prisoners, on November 14, 1979. By leave of court, this was dismissed on November 29,*fn1 and a new indictment was returned on December 13, 1979, charging that they
unlawfully, willfully, deliberately, maliciously, with premeditation and malice aforethought, did murder Jose Gonzalez by stabbing him with a knife and did aid and abet one another in the commission of the said murder.
On December 20, 1979, in the course of pretrial proceedings, the Government waived the death penalty with respect to both defendants in order to eliminate any question over the Supreme Court's holding in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972). At trial, which began on March 18, 1980, and continued (except for March 22 and 23) through March 28, Kesting testified for the defense and admitted his intentional killing of Gonzalez, who also was an inmate at the Lewisburg penitentiary.
Van Scoy has raised nine issues for review which will be considered seriatim.
Whether the district court erred in denying Van Scoy's motion to suppress certain written statements.
The incident involving Gonzalez occurred on August 11, 1978. On September 4, Van Scoy and Kesting were charged with violating prison regulations in that incident and were segregated from the general prison population.*fn2 Van Scoy was placed in a cell immediately below one Ronald Casebeer, an inmate who had been segregated earlier on administrative charges of attempting to escape and conspiracy to firebomb the front gate of the penitentiary. Van Scoy and Casebeer knew each other. They engaged in conversation and secretly exchanged handwritten letters, using a fishing line, which Casebeer dropped to Van Scoy's cell. Three letters from Van Scoy to Casebeer inculpated Van Scoy in the Gonzalez murder. These were received by Casebeer between September 5 and September 10, 1978. Van Scoy argues that Casebeer was a known Government informant "operating as such but without instructions to obtain any specific information," that the letters were obtained in violation of his Sixth Amendment rights, and that they were inadmissible at trial under the rationale of United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980).*fn3 In the alternative, he argues that the findings of the district court were clearly erroneous.
Prior to trial, Van Scoy filed a motion to suppress the letters, and the Government filed a response thereto. A hearing was held on February 12, 14, 19, 22, and 25, 1980, comprising thirteen hours of testimony. At the conclusion of the hearing, counsel filed briefs. On March 10, 1980, the district court issued an order denying the motion to suppress. Pertinent portions of the order are set forth below:
The hearing disclosed that on April 14, 1978, Ronald Casebeer arrived at Lewisburg on a bus from the Atlanta Penitentiary.... On May 23, 1978, Casebeer ... was placed in the special housing unit of the Lewisburg Penitentiary. Casebeer remained in the special housing unit until October 31, 1978 when he was transferred to the Atlanta Penitentiary on a writ of habeas corpus ad testificandum....
Sometime near the beginning of June, 1978, Casebeer gave a note to Lieutenant Jerry Brookmole, Special Intelligence Supervisor at the Penitentiary, which requested a meeting with a member of the F.B.I. Apparently, the FBI office in Atlanta independently directed special agent Richard Rodgers to seek out Casebeer in connection with the investigation of two murders at the Atlanta Penitentiary. In the summer of 1978, Casebeer met with special agent Rodgers as well as agent Carlyle R. Thompson. At the meeting with the FBI agents, Casebeer gave them some information with regard to the Atlanta murders which in the view of the agents did not require Casebeer to be given any special protection. In October of 1978, Casebeer again requested through Lt. Brookmole to see the F.B.I. agents. At a meeting held with the F.B.I. agents on October 27, 1978, Casebeer indicated that he had information bearing on the murder of Jose Gonzalez on August 11, 1978.
Casebeer requested that certain documents be brought from his personal property which had been stored in an inmate property room while he was in the special housing unit, a manila envelope containing three letters allegedly written by Defendant Van Scoy to Casebeer while both inmates were housed in the special housing unit of the Lewisburg Penitentiary.
The letters detailed a number of facts about the murder of Gonzalez. Casebeer testified that the letters were solicited from Van Scoy by Casebeer when Casebeer was located in a cell immediately above Van Scoy's cell. Casebeer and inmate Richard McCue had decided to concoct a story essentially that they had witnessed two black inmates assault and kill Gonzalez. As a result of the story, Van Scoy was expected to be exonerated. The purpose of Casebeer's letters was to elicit sufficient information from Van Scoy so that Casebeer and McCue could create credible stories.
Casebeer secured the first two letters from Van Scoy as a result of written inquiries. The third letter from Van Scoy was unsolicited....
... Despite the Defendant's arguments, the Court is not at all persuaded that Casebeer was in fact a government agent. Although it is true that Casebeer had served as an informant with regard to the Atlanta murders, there is nothing to suggest that Casebeer had been paid by the F.B.I. to serve as an informant and in fact the FBI agents testified that he had not been given any favorable treatment because of his cooperation with the Government either as to the Atlanta murders or as to the Gonzalez information. Some testimony indicated that Casebeer at some time served as an informant in the civil case of Picariello v. Fenton, No. 29-317 (M.D.Pa.). It did not suggest that the Government instructed Casebeer to secure certain information with regard to the Gonzalez murder or that Casebeer was in any way paid to discover such information. At best, it can be said that Casebeer was willing to furnish certain information without any instructions from the Government. Although it is true that Casebeer undoubtedly knew that the information he secured would be useful and accepted by the Government, it is the Court's view that this does not convert him into a government agent.... and the Court cannot say that the mere acceptance of such inculpatory information converts an informant acting without direction from the Government into a government agent.
... Since the Court has determined that Casebeer was not a government agent, Miranda's protections are inapplicable....
We are satisfied that the evidence of record amply supports the findings of the district court and that those findings are not clearly erroneous. The standard of appellate review of such findings was stated in Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972) as follows:
"In reviewing the decision of the District Court, our responsibility is not to substitute findings we could have made had we been the fact-finding tribunal; our sole function is to review the record to determine whether the findings of the District Court were clearly erroneous, i. e., whether we are "left with a definite and firm conviction that a mistake has been committed.' " Speyer, Inc. v. Humble Oil and Refining Co., 403 F.2d 766, 770 (3d Cir. 1968).
Although that was a civil case, and there is no counterpart in the Federal Rules of Criminal Procedure to Rule 52(a), Fed.R.Civ.P., which prescribes the "clearly erroneous" rule, it appears to be well settled that the rule applies in criminal cases. United States v. Marley, 549 F.2d 561 (8th Cir. 1977); Government of Virgin Islands v. Gereau, 502 F.2d 914, 922 (3d Cir. 1974); United States v. Trice, 476 F.2d 89 (9th Cir.), cert. denied, 414 U.S. 843, 94 S. Ct. 103, 38 L. Ed. 2d 81 (1973); United States v. Tallman, 437 F.2d 1103 (7th Cir. 1971); United States v. Lawrenson, 298 F.2d 880 (4th Cir.), cert. denied, 370 U.S. 947, 82 S. Ct. 1594, 8 L. Ed. 2d 812 (1962); United States v. Abel, 258 F.2d 485, 494 (2d Cir. 1958), aff'd, 362 U.S. 217, 226-28, 80 S. Ct. 683, 690-91, 4 L. Ed. 2d 668 (1960).
Van Scoy's reliance on United States v. Henry, supra, is misplaced. In that case, the testimony of the Government's informant was held to have been erroneously admitted in derogation of Henry's Sixth Amendment rights because the informant was a government agent acting under instructions and paid on a contingent fee basis for obtaining incriminating information from Henry.*fn4 In this case, the district court found that, at the time Van Scoy's letters were solicited and received by Casebeer, Casebeer was not a government agent, and on the record before us it cannot be said that the finding was clearly erroneous.*fn5 That Casebeer was not a government agent also sets this case apart from Massiah, Miranda, and Escobedo, all supra, cited by Van Scoy.
There was no error in the district court's denial of the motion to suppress.
Whether the trial judge's comment to the jury that the death penalty was not ...