Maine v. Moulton

PETITIONER:Maine
RESPONDENT:Moulton
LOCATION:Rhode Island District Court

DOCKET NO.: 84-786
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: Maine Supreme Judicial Court

CITATION: 474 US 159 (1985)
ARGUED: Oct 08, 1985
DECIDED: Dec 10, 1985

ADVOCATES:
Anthony Whitcomb Beardsley – on behalf of the Respondent
Wayne S. Moss – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 08, 1985 in Maine v. Moulton

Warren E. Burger:

Mr. Moss, I think you may proceed whenever you are ready.

Wayne S. Moss:

Mr. Chief Justice, and may it please the Court:

This is a criminal case from Maine involving a Massiah issue of whether the Sixth Amendment right to counsel applied to a post-indictment meeting between Respondent Moulton and his friend, Gary Colson, a co-defendant, on theft charges.

The central question here is whether the Massiah/Henry rule should be extended to the facts of this particular case.

There are two factors here which are important, distinguishing this case from Massiah and Henry.

First, Moulton himself, not the police, created his incriminating situation relative to the pending theft charges.

Second, the police here put the body wire on Colson as part of a legitimate investigation into a new crime which was Moulton’s plans to murder a key state’s witness, Gary Elwell.

In light of these two factors, there is no deliberate elicitation here, because, as the Court said in Henry, the police here did not intentionally create the situation inducing Moulton’s incriminating statements.

I would like to address each of these two factors in turn.

First, as I said, Moulton himself, not the police, created this incriminating situation.

Moulton initiated all the contacts between himself and Colson, including the meeting in which he incriminated himself.

Respondent concedes that it was Moulton who did arrange the meeting in which Moulton incriminated himself.

Moreover, Moulton, on his own initiative, put on the agenda for that meeting a complete discussion of their trial strategy and the perjured testimony that Moulton wanted them to get.

Just further evidence that Moulton himself created his own incriminating situation is that some of the statements at the meeting were made without any questioning or promoting by the informant Colson at all and other statements that he made in response to Colson’s questions, that Colson asked those questions within the role that Moulton had created for him which was to review discovery materials and prepare a perjured defense for trial.

Additional evidence that this Moulton/Colson meeting was not a government-created confrontation is that here Colson was the one who initiated contact with the police to complain about threatening telephone calls.

This is not a case where the police sought out the informant to investigate pending charges.

The second important factor here is that the police placed the body wire on Colson as part of their legitimate investigation into a new crime, Moulton’s plans to murder a key state’s witness.

The suppression hearing justice below in fact found that the police were involved in this legitimate purpose of investigating a new crime and put the body wire on for that purpose and also to protect Colson’s safety and not to gather evidence on the pending charges.

This finding is entitled to some deference because it was the suppression hearing justice below who heard the testimony firsthand, observed the demeanor of the witnesses and found both the police and the informant Colson to be believable.

The Maine Supreme Court found ample evidence to support the justice’s finding and Respondent, as I have said, concedes that there was a legitimate purpose here for this investigation into murder.

The police were making every effort here to comply with Massiah while investigating the proposed murder and this is evidenced by the police instructions themselves.

Prior to this Moulton/Colson meeting, the police instructed Colson, the informant, to act like himself, converse normally, and avoid trying to draw information out of Moulton.

The police consulted with the local District Attorney’s office before giving these instructions and the instructions themselves are consistent with Massiah and show a good-faith effort to comply with it.

Harry A. Blackmun:

But, he did ask questions, didn’t he?

Wayne S. Moss:

Yes, he did ask questions.

Harry A. Blackmun:

Do you think he elicited comments?

Wayne S. Moss:

No, he did not elicit comments and the reason why he did not elicit comments is because those were statements that either Moulton was going to make anyway or that those questions that Colson asked were questions that Moulton required him to ask in order to develop the perjured testimony that Moulton wanted him to give.

Harry A. Blackmun:

But your Supreme Judicial Court disagreed with it?

Wayne S. Moss:

Yes, and the reason that our Maine Supreme Judicial Court disagreed is because our Maine Supreme Court assumed that simply by putting the body wire on the informant that the state somehow created the incriminating situation.

Our Court also used a foreseeability test and that is because it was foreseeable that the defendant and the informant would be having conversations about pending charges and that the defendant would be making incriminating statements in this conversation, that because this was foreseeable this also violated Massiah and Henry.

Warren E. Burger:

If that evidence had been used against Moulton in the trial on his initial charge, would it have been admissible?

Wayne S. Moss:

The evidence of murder?

Yes, it would have been admissible at least insofar as it would have showed any consciousness of guilt.

It certainly would have been relevant evidence.

And, also it would be admissible for Sixth Amendment purposes as well because, at least as regards to the murder, Moulton was planning to commit the murder.

There is no right to counsel for new crimes that someone is planning to commit.

Therefore, it should be admissible.

Another reason why the murder evidence would be admissible, which also goes to why all this other evidence should be admissible as well, is that there still has to be a government-created confrontation for there to be a Sixth Amendment violation.

And, the state’s position here is that Moulton in this meeting was just continuing a discussion of ideas that he had originated in the telephone conversation which he also initiated leading up to that meeting.

Warren E. Burger:

If there were incriminating materials, could it have been used against Colson on his first charge?

Wayne S. Moss:

Oh, yes, it certainly could have been, yes, against Colson.

Warren E. Burger:

If it was obtained afterward?

Wayne S. Moss:

Used against Colson?

Warren E. Burger:

Colson, yes.

Wayne S. Moss:

The informant.

Warren E. Burger:

Maybe I have got my parties mixed here.

Wayne S. Moss:

Moulton is the defendant and Colson is the informant.

And, certainly it would have been admissible against Colson.

Warren E. Burger:

Colson went to the Chief of Police, didn’t he?

Wayne S. Moss:

Yes.

Warren E. Burger:

And said he was threatened and wanted some protection among other things.

Wayne S. Moss:

Yes.

Lewis F. Powell, Jr.:

Mr. Moss, the Supreme Court of Maine found, as I recall, that Colson frequently pressed… I think that is the term used by the Maine Court… the respondent here to talk about the thefts.

How do we get around that?

Wayne S. Moss:

Those questions have to be put back in the context of this meeting itself.

In respondent’s brief at pages seven and eight, he lists some of those questions and when one takes those questions and puts them back in context, one can see that Moulton created the situation that required Colson to ask him questions.

For example, the first question that respondent has there on page seven is, and this is Colson, the informant, asking the question and Caps, who he refers to is Moulton, the defendant–

Lewis F. Powell, Jr.:

What page are we on?

Wayne S. Moss:

–Page seven of the respondent’s brief.

It is the red brief.

Lewis F. Powell, Jr.:

Yes.

Wayne S. Moss:

And, Colson asks,

“One thing I cannot remember, Caps, just can’t remember, I know it was in December, what night did we break into Lothrop Ford? “

“What date? “

Now, unto itself that question might seem that it is eliciting something that Moulton didn’t want to talk about.

However, shortly before that question… and that question is on page 23, actually appears on page 23 of the transcript of this meeting… on page 22 of that transcript, shortly before that meeting, Moulton said to Colson,

“Anyways, we have got to get a consistent story going on here because our stories right now are all messed up. “

So, what Moulton did there is he put Colson in a situation where Colson had to get the facts straight, they had to get the facts straight between the two of them, just so they would be able to develop their perjured testimony.

This is evidenced by the fact that elsewhere in the meeting Moulton accuses Colson, Moulton accuses Colson… He says,

“You don’t know what to say. “

“You don’t know what to lie about and what to not lie about. “

And, he is accusing Colson of that when Colson had his initial interview with the police and the inference or what is actually being said there is we have got to get the facts straight on this so we can go ahead and develop our perjured testimony.

And, there are other situations where Moulton also puts Colson in this situation.

Byron R. White:

If Colson did ask some questions and he elicited responses, did the state tell him to do that?

Wayne S. Moss:

No, the state did not tell him to do that.

Byron R. White:

Who set up the meeting?

Wayne S. Moss:

Moulton set up the meetings.

Byron R. White:

But the state did put a wire on him?

Wayne S. Moss:

Yes.

Byron R. White:

But, they didn’t… What did they tell him?

Wayne S. Moss:

They told him to act like himself, converse normally, and avoid trying to draw information out of Moulton.

Byron R. White:

So, they didn’t instruct him to ask questions?

Wayne S. Moss:

Correct.

Warren E. Burger:

As a matter of fact, the Superior Court made an express finding that he was to avoid trying to draw information out of Moulton.

Wayne S. Moss:

Yes, that is correct.

Warren E. Burger:

Very different from Massiah or Henry.

Wayne S. Moss:

Yes.

Lewis F. Powell, Jr.:

The police knew, as I recall, that respondent did have counsel?

Wayne S. Moss:

Yes.

Lewis F. Powell, Jr.:

And, of course, he was not notified.

Lewis F. Powell, Jr.:

He hadn’t waived the right to have counsel, had he?

Wayne S. Moss:

No, he had not.

I might add though here that–

Thurgood Marshall:

He was talking to the state, wasn’t he?

Wayne S. Moss:

–Yes, the defendant was talking to an agent of the state, yes.

Thurgood Marshall:

All right.

Wayne S. Moss:

But, there is no problem with that unto itself.

In Brewer versus Williams, one of the Massiah progeny, the Court, in fact, said that no constitutional protection would apply simply because the defendant is making statements to an agent of the state as long as there is no interrogation.

What the state is, in fact, contending here is that there was no interrogation.

I would add as well that the reason the police put the body wire on Colson was to investigate this proposed murder.

Now, the police had every obligation to investigate that murder because somebody else… As a matter of fact, the key state’s witness, his life was at stake.

The police had a responsibility to investigate that.

And, what the police were trying to do with Colson was to use him to investigate the murder while simultaneously having him avoid interrogating the defendant regarding the underlying theft charges.

On the other hand, Colson was entitled to protect his cover as an informant, therefore, he had to play along with whatever Moulton had arranged for this meeting simply to be able to protect his cover.

And, the state’s position is that the questions that Colson asked were questions that he was required to ask in order to be able to go along with the defendant’s own plans to develop this perjured testimony.

I would add as well that some of the incriminating statements… and this is just further evidence that Moulton created his own incriminating situation… that some of these incriminating statements were made without any questioning or prompting by Colson at all.

So, certainly they are not the result of interrogation and they should not be subject to any Massiah challenge.

There is another factor here that… Well, the Maine Supreme Court, as I mentioned earlier, they used the test of foreseeability to find a Massiah violation.

The problem with that test though is… defendants and informants, just by the nature of informants, it is generally going to be foreseeable that defendants and informants when they get together, that the defendant might be making incriminating statements.

That, however, does not mean that the government has created a confrontation with the defendant.

In fact, it is the very foreseeability of those statements, that just when a defendant and informant gets together or a defendant and co-defendant gets together to talk about their case that there might be incriminating statements made.

It is the very foreseeability of that situation which means that, indeed, the government hasn’t done anything to try and elicit those statements.

So, although the Maine Supreme Court used this test of foreseeability, the state’s position is that it is the very foreseeability of those statements that indicates that this was not a government-created confrontation.

Now, there is the presence of the body wire itself here.

Sandra Day O’Connor:

Do you think, counsel, that the Maine Supreme Court knew or should have-known-standard is really any different from creating a situation likely-to-induce standard in the Henry case?

Wayne S. Moss:

Yes, it is, because the should-have-known aspect of the Maine Court standard seems to get away from the fact of whether the police were actually deliberately going after statements on the theft charges.

And, the Sixth Amendment standard is that deliberateness.

The test which the Maine Court applied sounds more like an objective test that would be more akin to Rhode Island versus Innis and the statement that is used for custodial interrogation under Miranda.

And, this Court has already said… It said it in a footnote, I believe, in Rhode Island versus Innis, that when you are talking about Sixth Amendment deliberate elicitation and Fifth Amendment interrogation, they are really two separate concepts, because when you are talking about Fifth Amendment custodial interrogation, you are talking about the pressure that is already put on the defendant that is inherent in a custodial situation.

Therefore, anything which the police do which they should have known about that would prompt any statements the police are going to be taxed for.

Wayne S. Moss:

However, in the Sixth Amendment context, we really are.

We are talking about deliberate actions by the police that actually destroy the adversary aspects of the trial itself, that destroy the right to counsel that is available for trial and that, in fact, reduces the trial itself to a formality.

So, in the Sixth Amendment context, we really are looking at have the police done anything intentional.

And, the state’s position is that the combination of the two factors that we have in this case, Moulton himself, not the police, created this incriminating situation.

Good faith investigation of the police shows that the police here did not intentionally create the situation.

Thurgood Marshall:

What about the Mealer against Jones case?

Wayne S. Moss:

The state’s position is–

Thurgood Marshall:

Judge Lombard’s opinion.

Wayne S. Moss:

–Is that the majority opinion?

Thurgood Marshall:

Judge Lombard’s opinion.

Wayne S. Moss:

Well, Mealer versus Jones was incorrectly decided from the state’s point of view, because there… Once again the government did not create the confrontation.

If I recall the facts of that case correctly, it was actually the defendant who–

Thurgood Marshall:

The government didn’t create it, but the government knew what was going to be discussed.

Wayne S. Moss:

–Yes.

And, that is exactly the facts–

Thurgood Marshall:

But, you say that is not enough.

Wayne S. Moss:

–Correct.

And, that is exactly the facts that we have here, because in our case the police also knew and Chief Keating of the Belfast Police Department, he says that.

He knew that these things were going to be discussed, but he hadn’t done anything to bring that discussion about.

He, in fact, says, and it is in the suppression hearing, they were going to discuss anything and everything.

Thurgood Marshall:

He got himself wired.

Wayne S. Moss:

He got himself–

Thurgood Marshall:

You said he didn’t do anything.

He did something.

Wayne S. Moss:

–To investigate the murder and he was obligated to investigate the murder and we have the finding below that that was the purpose of the body wire, to investigate the murder.

So, just because the police themselves were aware of what was going to happen, that doesn’t mean that they have actually created the confrontation.

They have to create the confrontation for there to be a Sixth Amendment violation.

I would also add that the presence of the body wire itself does not unto itself indicate a Sixth Amendment violation.

If anything, the police would not have wanted to make a perfect record of this meeting and memorialized it through a body wire and tape recording if they were, in fact, planning to violate Moulton’s constitutional rights by gathering evidence on the pending theft charges.

They would not have wanted to do that.

Wayne S. Moss:

They were investigating murder.

Now, because of the factors, the two factors that I have been emphasizing here, this case is distinguishable from Henry.

In Henry, the Court found that the government, through its contingency arrangement with the informant and through Henry’s custody, had created a confrontation with Henry and the Court found no evidence that Henry himself had created his incriminating situation.

Here, however, there is ample evidence that Moulton at every turn created his incriminating situation.

As between Moulton and Colson, Moulton was the moving party throughout this entire relationship.

As I have said, some of Moulton’s statements at the meeting were made without any questioning by Colson at all and even those statements that he made in response to Colson’s questions, that Colson’s questions were simply within the role-playing that Moulton had set up.

I have already given some illustrations.

I would just like to go back to the third–

John Paul Stevens:

May I just ask one question, General Moss?

Is the fact that there was an investigation of an attempted murder critical to your first argument?

Supposing the informant had come in and said I know the defendant wants to come in and talk to me about… to get ready for the trial and all the rest of it, do you want to put a wire on me and I will just go in and listen to what he says.

Would you say Massiah applied then?

Wayne S. Moss:

–That would be a more difficult case.

Massiah, however, might still be inapplicable because–

John Paul Stevens:

I know it would be a more difficult case.

I can’t really tell whether your first argument also relies on the fact that there was a bona fide reason for the wire apart from investigating the pending charge.

Wayne S. Moss:

–We are relying on both of those factors in this case.

John Paul Stevens:

I see.

Wayne S. Moss:

We are not just relying on one or the other.

We are relying on the two of them together.

John Paul Stevens:

All right.

Wayne S. Moss:

And, the reason for that is because the good-faith investigation itself into the new crime, that is what they used the body wire for, that helps to show that they were not actually eliciting or creating any situation with regard to the old crime.

John Paul Stevens:

You refer to the investigation of the new crime.

Were there ever charges brought on the new crime?

Wayne S. Moss:

No, there were no charges brought on the new crime.

As I said though, it is a closer case though when there is no bona fide investigation into the new crime.

And, I think at that point an important factor to consider is the first factor that we are relying on here and that is that whether the police created an incriminating situation and then other factors would also have to be looked at to determine whether there is a Massiah violation.

At least one other factor would be what type of instructions did the police give the defendant at that point and another factor, which was an important factor in Henry, is did the police give the informant any incentives to deviate from their instructions, because the problem in Henry was that the contingent fee arrangement with the informant, in fact, gave the informant some incentive to deviate from the instructions in Henry which were to avoid questioning Henry, because the contingent fee arrangement was that he would be paid in exchange for any information he gathered.

But, that is not this case, because here the police were investigating a new crime and they did not give the defendant any incentives to go ahead and investigate the pending theft charges.

As I said, the body wire was to investigate the new crime.

Wayne S. Moss:

Although admittedly there was a deal here in that charges were dropped against Colson… that is the new charge, not the pending theft charge, but rather new charges.

No new charges would be brought against Colson in exchange for his cooperation; that is his testimony at the trial.

That was in exchange for his eye witness testimony at the trial, in exchange for what he actually saw, what he actually did with Moulton.

That deal had nothing to do with actually a continuing investigation to gather evidence against Moulton on the pending theft charges.

The respondent also refers to the fact that Colson had not yet been sentenced and that somehow this gave him an incentive to go ahead at this meeting and to ask Colson a lot of question to ingratiate himself with the police.

I would point out that the record nowhere supports that.

There was no sentencing deal here with the informant.

There was nothing said that the informant… that the state would recommend a lighter sentence in exchange for gathering evidence on the pending charges.

To the extent that the sentencing means anything at all, it means that it gave the informant an incentive to follow the police instructions precisely, which was to be himself and avoid drawing information out of Moulton, and also the open sentencing gave Colson an incentive to continue to do what the police wanted him to do, which was to investigate the proposed murder.

Those were the incentives that Colson had.

So, the state’s position here is that, at least for Sixth Amendment purposes, there really was no interrogation and there really was no elicitation; that Moulton’s incriminating statements were the product of a situation which he himself had created that should not be charged to the police.

Respondent says that the… given the foreseeability of the defendant’s incriminating statements at this meeting, he somehow implies that the state somehow had some duty to protect against the foreseeability of those statements, but that is not the case.

The Sixth Amendment protects against government-created pre-trial confrontations in the absence of counsel.

Where the defendant has created the pre-trial confrontation through misplaced confidence in someone who is really working for the state, then the Sixth Amendment does not apply.

The police are not obligated to protect the defendant from his own inability to keep quiet and that is especially so here where the defendant was planning new crimes to obstruct justice, perjury and murder, for which there was no right to counsel anyway.

I would like to reserve the remainder of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Beardsley?

Anthony Whitcomb Beardsley:

Mr. Chief Justice, and may it please the Court:

The following questions were posed to Perley Moulton:

“I just can’t remember. “

“I know it was in December. “

“What night did we break into Lothrop Ford, what date? “

“How many times did we drill them locks? “

“Remember when we took the pickup truck out through there and we dumped all of that stuff off of that? “

“Did you follow me? “

“Yes, you followed me there or did you? “

“One thing we still don’t know. “

“We stole the Mustang on the 13th of December, we stole the dump-truck on the 13th of January. “

“How many holes did you drill? “

Anthony Whitcomb Beardsley:

The state is trying to say that those questions are not deliberate and that those statements are not interrogation.

Those statements came after… Those questions came after the state’s agent, Gary Colson, whispered into him microphone, I hope I can go through with this.

Those questions came after the defendant, Perley Moulton, had disclaimed this new crime that they were investigating, saying that it wouldn’t work.

The state would have you believe that as soon as Perley Moulton on his own voluntarily walks into the police agent’s home, that the police agent should not come under constitutional scrutiny for his actions.

And, we feel that this type of action which the state agent did was deliberately eliciting questions.

There is no question that the police agent was surreptitious.

There is no question that he was not a passive listener.

There is no question that the questions related specifically to the crimes for which the defendant was under indictment.

William H. Rehnquist:

Why do you use the term “deliberately eliciting”?

Do you use that as a word of art?

Anthony Whitcomb Beardsley:

I use that word because that is the term that is in the Massiah case to determine whether or not the police agent got certain evidence out of the defendant and it clearly applies in this case.

Warren E. Burger:

May I ask you a hypothetical extension on these facts?

Suppose in the conversation Colson said let’s get together tomorrow and Moulton said, no, I can’t do it, I am going to Washington to shoot the President of the United States and then he asked how he is going to do that and he explains in detail how he is going to do it, with a camera that is a concealed gun.

Now, would this conversation be admissible in a charge against Moulton for threatening the President of the United States?

Anthony Whitcomb Beardsley:

If this is a legitimate new crimes investigation, perhaps that evidence could be used on some potential–

Byron R. White:

Well, your state foreheld that it could, didn’t it?

Anthony Whitcomb Beardsley:

–That is correct.

Warren E. Burger:

I was exploring your view of the matter.

Anthony Whitcomb Beardsley:

The new crimes… The State of Maine found that this was a new crimes investigation.

I will support their finding.

I think that the state’s position is that this is a new crimes investigation with fringe benefits that they knew about ahead time.

And, those fringe benefits were that they knew that Perley Moulton was going to be there and that these questions would be elicited.

The agent had every reason to elicit these questions.

The agent had not performed for the police up to that point.

He had tried these telephone taps and no evidence had come out incriminating the defendant.

He had entered in this initial interrogation where the defendant totally disclaimed this new crimes investigation and the agent’s… his credibility was at stake.

He hadn’t performed.

He had a deal that he was to cooperate and he indicated that he was only told to act normally.

The agent, when he testified, said he wasn’t instructed as to anything else, just to act normally.

And, he proceeded to draw incriminating statement after incriminating statement out of the defendant.

Anthony Whitcomb Beardsley:

And, if the state… I think the state has to be responsible… I think they have to be responsible for the acts of their agents.

The agent is an arm or the state and a task has to be set up, instructions have to be very definite, because this investigation as to whether it is a new crime or an old crime can get very confusing.

That is why the state has to be very clear in instructing their agent not to do exactly what Gary Colson did in this case.

They didn’t take that protection.

Sandra Day O’Connor:

Well, Mr. Beardsley, both the trial court and the Maine Supreme Court agreed that the state had a legitimate purpose in mind in investigating a new offense when it wired Mr. Colson for sound.

Do you think that there is any deterrent effect on the police in excluding Mr. Moulton’s statements under those circumstances?

If the police have a legitimate purpose in wiring Mr. Colson for sound to investigate for a new offense, what deterrent effect would it have to try to exclude the statements that Moulton makes?

Anthony Whitcomb Beardsley:

The state–

Sandra Day O’Connor:

In trying Mr. Moulton for the original offense?

Anthony Whitcomb Beardsley:

–The state perhaps could use statements regarding the new crime if the trial judge found that they were not prejudicial or constituting uncharged misconduct, something along those lines.

I think what the state is trying to do here is getting through the back door from their agent what they could not do themselves directly.

They knew Perley Moulton has expressed his right to remain silent and they knew that he had a lawyer and they knew that this matter would be discussed.

I think what the Maine Supreme Court said was, yes, it was a new crimes investigation, but also he was not a passive listener.

He took an active role.

And, the state took advantage of the situation where the agent and the defendant were good friends, got together regularly anyway, and took advantage of that situation.

And, where they knew that this would be discussed they should have been explicit in telling their agent not to ask any questions regarding the pending crime.

And, what they are doing is they are just cutting their agent loose and say go to it, because if Perley Moulton voluntarily comes to your home, anything goes, and that is what the state is arguing here.

Byron R. White:

When did he become a government agent, Colson?

Not a date, but… It wasn’t until when?

Anthony Whitcomb Beardsley:

Approximately three months prior to… Well, at the very beginning of November, he went to the police and these statements took place the day after Christmas.

There had been numerous conversations with the police by Gary Colson.

They had forgiven him for a Class A–

Byron R. White:

I know, but there were a lot of conversations between Moulton and Colson before even you would claim he was an agent of the state.

Anthony Whitcomb Beardsley:

–That is correct.

Byron R. White:

And, I suppose those statements would then… Colson certainly could have taken the stand and talked about them himself.

Anthony Whitcomb Beardsley:

He sure could have and he did and the trial court didn’t believe a word he said because all the other… the other charge that was related, Perley Moulton was found not guilty on and the evidence they had was Colson’s testimony.

Byron R. White:

But, he could have testified as to the robbery charge.

Anthony Whitcomb Beardsley:

The burglary and theft charge.

Byron R. White:

Yes.

Anthony Whitcomb Beardsley:

Yes, and he did.

Byron R. White:

And, the earlier statements were not excluded?

Anthony Whitcomb Beardsley:

I don’t believe it was the earlier statements that he testified to.

I think he testified about the earlier acts that he was present–

Byron R. White:

Of course, if the state had just said… If he had gone to the police and said… Suppose there wasn’t any murder problem at all, no question about a new crime at all, and Colson just comes to them and says here is what Moulton is telling me to do, to testify to, and the police said, well, we are glad to listen to you.

If you have got anything else to say some time, well, come on back.

Well, he does come back.

Now, is that enough to make him an agent of the state?

Anthony Whitcomb Beardsley:

–In your fact situation, perhaps not, but in this fact situation–

Byron R. White:

Do you think the wire makes the difference?

Anthony Whitcomb Beardsley:

–The continued wire taps, the deal to cooperate and the taking advantage of their situation as far as they did.

The police knew it was going to happen and they encouraged it.

Warren E. Burger:

Who initiated the conversation between the Chief of Police and Colson after Moulton had talked to Colson?

Anthony Whitcomb Beardsley:

It is my understanding that Colson went on his own at the beginning to the Chief of Police.

The police gave Colson the wire tap and said, let us know when you record some information and he took it in.

They fitted him with the body wire.

They had–

Byron R. White:

He never set up any meetings?

Anthony Whitcomb Beardsley:

–Colson?

Byron R. White:

Yes.

Anthony Whitcomb Beardsley:

He returned telephone calls.

He continued on in this relationship after defendant had made a motion to sever that was opposed by the state arguably while Colson was an agent of the state, and, all of this preparation and topping it off with these questions which have nothing to do about the new crimes investigation–

The new crimes investigation on this murder, Perley Moulton said it wouldn’t work and they joked about poison darts from Soldiers of Fortune magazine.

William H. Rehnquist:

Supposing that Moulton had simply met… saw Colson regularly at an Elks’ lodge every Tuesday night and just starting talking to him there about this previous crime he had committed and Colson goes to the police.

They say, well, you know, that is very interesting information, we are going to take it down and if you hear anything more, let us know.

So, Colson sees him the next Tuesday night and Moulton talks again.

Colson reports back to the police.

Is there anything wrong with that?

Anthony Whitcomb Beardsley:

I don’t think that there is, but that is a lot different situation than we have here.

William H. Rehnquist:

What on earth could there be wrong with that?

Anthony Whitcomb Beardsley:

I agree.

Anthony Whitcomb Beardsley:

I don’t think that that situation alone… But, where… The only thing that could be wrong with that is that the state would be taking advantage of–

William H. Rehnquist:

Of a loose-lipped defendant.

Anthony Whitcomb Beardsley:

–That is correct.

But, I am saying arguably in that case you are correct that that evidence might be admissible.

William H. Rehnquist:

Well, you say arguably as though you think there is some argument on the other side.

Anthony Whitcomb Beardsley:

Well, in this case, they are taking advantage of the fact that Colson and Moulton have a common peril.

William H. Rehnquist:

Why can’t the state take advantage of factors that happen to break its way so long as they don’t violate some constitutional privilege.

There is nothing in the Constitution that says the government can’t take advantage of a defendant.

Anthony Whitcomb Beardsley:

No, there isn’t, but there is something that says that the state cannot deliberately elicit incriminating statements from an indicted defendant and that is exactly what they have done.

These questions are clear–

William H. Rehnquist:

In your situation?

Anthony Whitcomb Beardsley:

–In my situation.

If they went to the Elks’ Lodge and Colson came up to Moulton, after having spoken with the police, and continued to press detail after detail, it would be getting a little less clear in that situation.

In this case, it is clear.

Colson is… after this new crimes investigation has gone by the Board is deliberately interrogated and is asking specific questions that have nothing to do with the new crimes investigation.

Byron R. White:

Well, suppose there was just no question at all but what… the state had instructed him not to ask any questions, but he did anyway.

Is the state responsible for that?

Anthony Whitcomb Beardsley:

I think that the state has to be responsible for the actions of their agents.

The agent is an extension of the state.

I feel that–

Byron R. White:

Well, I don’t know why you keep calling him an agent.

All the state did… I don’t think the wire adds anything particular.

All the state said was keep us advised.

Anthony Whitcomb Beardsley:

–Well, I don’t think so.

I think Colson had a lot at stake and they–

Byron R. White:

That may be so.

Anthony Whitcomb Beardsley:

–Well, you have got something similar to the contingency fee agreement in that case where Colson is facing sentencing, he has got to produce and he hasn’t produce.

They are letting him walk on charges that carry with it a potential 25 years in jail and he hasn’t produced.

And, when Moulton totally disclaims this new crimes that they are investigating, he is saying into his microphone, I hope I can go through with this, when Moulton is out of the room, and he comes back in and the first words out of his mouth are what night did we break into Lothrop Ford, what date?

And, he continues, question after question after question on the old crime.

Anthony Whitcomb Beardsley:

And, the state argues that this evidence would have come out in the regular course of events and that is absurd.

Moulton–

Byron R. White:

So, you say the state, even though they… On the assumption that they instructed him not to ask questions, the state is still disentitled to have responses to questions that Colson nevertheless asks?

Anthony Whitcomb Beardsley:

–I think that the state is under an obligation to instruct their agent so that type of interrogation won’t happen.

And, if they choose an agent that is going to interfere with the defendant’s constitutional rights, then that evidence should be excluded.

Byron R. White:

Although you agree the state certainly could have instructed him to ask the questions about the murder?

Anthony Whitcomb Beardsley:

In a legitimate new crimes investigation, yes.

Byron R. White:

Which this was, which you agree it was.

Anthony Whitcomb Beardsley:

A new crimes investigation with fringe benefits that the state knew about.

Byron R. White:

Well, if they had indicted him for this murder, everything he said about the murder could have been admitted against him?

Anthony Whitcomb Beardsley:

Yes.

But, the evidence that he said… I am not sure that all of the evidence he said in the murder investigation could have been brought against him.

Byron R. White:

So, could have been indicted for murder and he was on trial for murder, you could have used the statements and after that they try him for the robbery, they couldn’t have used the statements?

Anthony Whitcomb Beardsley:

That is correct.

Thank you very much.

Warren E. Burger:

Very well.

Do you have anything further, Mr. Moss?

Wayne S. Moss:

Yes, Mr. Chief Justice.

The state would like to make a few points here.

First, as to those incriminating statements that Moulton made without any questioning or prompting by Colson at all, in that circumstance, Colson, with the body wire, was no more than a passive listening post.

And, a passive listening post, the Court suggested in Henry, does not unto itself constitute a government-created confrontation.

As to Moulton’s other incriminating statements which he made in response to Colson’s questions, there Colson was role-playing and as Weatherford says he was entitled to ask those questions in order to protect his cover as an informant.

Byron R. White:

What did the Court below hold was inadmissible, just the responses to interrogation or what, or all statements?

Wayne S. Moss:

All statements.

The Court below held that all of Moulton’s statements at the meeting with Colson were inadmissible, even those which were made without any questioning or prompting at all, simply on the grounds that they were foreseeable and that a body wire had been put on Colson.

And, as the state has already said in its main argument, just the body wire without more does not constitute a government-created confrontation.

Now, respondent points out that Colson, in the course of this meeting, said I hope I can make it through this.

Colson was nervous.

He was scared.

He was entitled to ask questions to protect his cover.

Wayne S. Moss:

He may not have asked questions or he may not have played out his role in the same way as some one skilled in the law, but he was still entitled to protect his cover as an informant, especially insofar as the police were using him to investigate proposed murder.

Thurgood Marshall:

Is there anything in the record as to how experienced he was as an informant?

Wayne S. Moss:

No.

Thurgood Marshall:

How long he had been doing this?

Wayne S. Moss:

No, there is nothing in the record to indicate that he had been an informant in the past.

Now, as to the statements that Moulton made regarding the proposed murder itself, which were actually not admitted at the trial, but those statements regarding the proposed murder, there the Sixth Amendment has not even attached yet, because that is a non-charge, that is a new crime.

And, there would be no problem with admitting those statements, because Moulton had no right to counsel for them anyway.

A final point that the state would wish to make and that is what more could the police do in this case to protect against a Massiah violation?

They gave Colson instructions to avoid questioning.

They did not… In contrast to Henry, they did not give Colson any incentives to go in and deviate from their instructions and question.

And, the body wire itself, as I have said, if anything, indicates that the police were trying to comply with Massiah.

Given the good faith of the police here, the deterrent rationale of the exclusionary rule which is to deter purposeful, intentional police misconduct, would simply be inapplicable.

If the Court does not have any other questions–

Warren E. Burger:

Very well.

Thank you, gentlemen.

The case is submitted.