United States v. Darnell Hayes
2000 Cal. Daily Op. Serv. 8991, 2000 Daily Journal DAR 11947, 231 F.3d 663 (2000)
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Rule of Law:
The Sixth Amendment right to counsel attaches only at or after the initiation of adversary judicial criminal proceedings, which are commenced by way of a formal charge, preliminary hearing, indictment, information, or arraignment, not by a pre-indictment court order to take material witness depositions.
Facts:
- Darnell Hayes, an adjunct professor, was part of a scheme with Sam Koutchesfahani to sell passing grades to foreign students who did not attend classes or complete coursework.
- Hayes accepted between $11,513 and $14,150 in bribes from Koutchesfahani for providing fraudulent grades, which allowed the students to maintain their visa status.
- Hayes did not report this income to the IRS or state unemployment officials.
- After a criminal investigation into the scheme began, Koutchesfahani agreed to cooperate with the government.
- On May 5, 1996, Koutchesfahani, acting as a government agent, secretly recorded a conversation with Hayes at a coffee house.
- During this surreptitiously recorded conversation, Hayes made incriminating statements, including his intention to lie at trial.
- This recording occurred after the government had obtained a court order to take depositions of several student witnesses who were preparing to leave the country, but before Hayes was formally indicted.
Procedural Posture:
- The government filed sealed material witness complaints against several foreign students involved in the grade-selling scheme.
- The government then filed a motion in federal district court to take pre-indictment videotaped depositions of these students, naming Darnell Hayes as a target of the investigation.
- A magistrate judge granted the government's motion and appointed counsel to represent Hayes for the depositions.
- On April 17, 1997, nearly a year after the depositions and taping, a federal grand jury indicted Hayes on 57 counts.
- In the U.S. District Court, Hayes filed a motion to suppress the tape-recorded conversation with Koutchesfahani, arguing it was obtained in violation of his Sixth Amendment rights under Massiah.
- The district court denied the motion to suppress.
- After a jury trial, Hayes was convicted on all counts.
- Hayes appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit.
- A three-judge panel of the Ninth Circuit issued a decision, which was subsequently vacated when the court granted a rehearing en banc.
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Issue:
Does a pre-indictment court order to take depositions of material witnesses constitute the initiation of formal adversary judicial proceedings sufficient to trigger a defendant's Sixth Amendment right to counsel under Massiah?
Opinions:
Majority - Judge Rymer
No. A pre-indictment court order to take depositions of material witnesses does not constitute the initiation of formal adversary judicial proceedings. The Supreme Court has established a bright-line rule that the Sixth Amendment right to counsel attaches only 'at or after the initiation of adversary judicial proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' At the time of the taping, Hayes was a 'target' of an investigation, not an 'accused' in a criminal prosecution. The government's role had not shifted from investigation to accusation, and it had not yet committed itself to prosecute. The fact that the depositions had the 'trappings of trial' or that counsel was appointed for Hayes for the depositions does not alter this fundamental rule, as the Sixth Amendment is not triggered by the mere existence of an attorney-client relationship or by pre-indictment procedures that may have consequences at trial.
Dissenting - Judge Reinhardt
Yes. The judicial authorization of videotaped depositions for use as substantive evidence at trial constituted the commencement of adversary judicial proceedings. These were not investigatory depositions; they were Rule 15 depositions taken for the express purpose of preserving testimony for trial, making them a 'critical stage of the prosecution' and a 'trial-type confrontation.' The majority's reliance on a formalistic bright-line rule is inadequate where, as here, the government took the extraordinary step of initiating a core component of the trial before the indictment. By doing so, the government crossed the 'constitutionally significant divide from factfinder to adversary,' and Hayes's right to counsel attached, rendering the subsequent secret recording a violation of Massiah.
Analysis:
This decision solidifies a formalistic and strict interpretation of when the Sixth Amendment right to counsel attaches, reaffirming the 'bright-line' rule from Kirby v. Illinois. It clarifies that even significant, court-supervised pre-indictment procedures that resemble trial activities, such as taking depositions to preserve testimony, do not trigger the right to counsel. This gives law enforcement and prosecutors a clear boundary, allowing them to continue investigative techniques like using informants to elicit statements from represented targets right up until a formal charge is filed. The ruling limits the functional, 'trial-has-begun' arguments for attaching the right, thereby strengthening the government's hand during the crucial pre-indictment phase.
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