United States v. Christopher King, 753 F.2d 1, 1st Cir. (1985)
United States v. Christopher King, 753 F.2d 1, 1st Cir. (1985)
2d 1
William M. Kunstler, New York City, with whom Mark B. Gombiner, New
York City, and Robert H. Gombiner, were on brief for defendant, appellant.
Bruce B. Kenna, Asst. U.S. Atty., Concord, N.H., with whom W. Stephen
Thayer, III, U.S. Atty., Concord, N.H., was on brief for appellee.
We now deny the motion to dismiss for two reasons: First, there was no
egregious conduct on the part of the United States Attorney or officers
investigating the firearms charges; and, second, the present record confirms our
previous statement that King was not prejudiced by any conduct of police
officers.
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As a background for the application of the district court's findings, we note the
following:At the time King was apprehended, a task force comprised of police
officers of the States of Rhode Island, New Jersey, and Massachusetts, and
agents of the FBI, had been formed to locate certain fugitives who had killed a
New Jersey state trooper. While this case was proceeding in federal court, King
was prosecuted in a Massachusetts state court for acts done by him at the time
of his apprehension. King was known to have had some connection with the
fugitives, and state officers made efforts to elicit from King information
concerning their whereabouts. On the day of a suppression hearing in the
Massachusetts state court, Sobera, a Massachusetts officer, and Evans, a New
Jersey officer, gave to an informer transmitting and recording devices which
would intercept the communications between King and his lawyers. The
recording device was put in a brief case, which the informer placed in a holding
cell where King met with his lawyers and later placed in the courtroom where
the suppression hearing was held.
Evans and Sobera both testified that they had removed the batteries from the
recording device and that it was not working. The informer testified that he
never heard the tape nor saw any transcript of it. No tape was ever produced.
On remand, the district court found that the recording device did produce a tape
and that, while the FBI had no part in placing the devices and no knowledge
that they had been placed before the event, some unknown FBI agents did
know of the tape after the event and were privy to the contents of it. The
finding of the district court is based on an inference that the recording device
would not have been planted if it had not been working.
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There was no evidence of nor any effort to prove, either in the federal
suppression hearing or in the trial on the merits, any communication between
King and his lawyers. King contends, however, that we must presume
prejudice. To presume prejudice we are required to assume that there had been
discussions between King and his lawyers which bore on the strategy of the
defense. The evidence shows no more than that King and his lawyers had some
communication in the vicinity of the brief case, and there is no suggestion in
the evidence or in the briefs as to what that communication might have been.
We are further required to assume that the unknown FBI agents who were
privy to the contents of the tape, but who were not shown to have any
relationship to the prosecution of this case, in some way communicated that
knowledge to the United States Attorney prosecuting this case and that that
knowledge somehow altered the strategy of the United States in its prosecution.
On reviewing all of the evidence, we are unable to understand how any
knowledge of King's strategy would have in any way changed either the list of
the witnesses called or the questions asked of them. There is no evidence of
prejudice, and in this case it should not be presumed.
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