United States v. Harris
914 F.2d 927 (7th Cir. 1990)
 

BAUER, Chief Judge.

This appeal from a conviction for armed bank robbery presents us with the interesting issue of whether an attorney's out-of-court statements may be offered against a defendant as the statements of an agent on behalf of his principal under Federal Rule of Evidence 801(d)(2)(D). Although there are significant policy concerns which must be considered before the admission of such statements, we believe these concerns are not seriously implicated under the facts of this case and therefore affirm.

On November 2, 1988, shortly after 11:00 in the morning, a young black male dressed in a green army jacket, camouflage pants, gray wool cap and dark sunglasses, and wearing a bandana across his face, robbed the Reliance Savings and Loan in Milwaukee, Wisconsin. The robbery was not especially creative. The man walked up to a teller's window, pulled out a gun and demanded money. The teller, Lisa Wick, handed the robber $505 in small bills from her drawer. Several of the bills were "bait money"--their serial numbers had been recorded to help identify any future use of the funds. The robber then fled from the building.

A few minutes later, Leslie Freeman, who lived a short distance from the savings and loan, encountered a young, black male standing in his garage. The man, who appeared extremely agitated, was holding a pair of camouflage pants and transferring a wad of bills from them into the pants he was wearing. The man spoke briefly with Freeman, then picked up a green Army jacket and the camouflage pants and left the garage. Freeman later identified Rickey Lee Harris, in a photo identification, as the man he discovered in his garage. That afternoon, Freeman and a Milwaukee police officer found the pants and the jacket, with some of the "bait money" in the jacket pocket, on Freeman's lawn. Other police officers found a pair of gloves, sunglasses, a gray wool cap, a green bandana and a knife in a baby carriage in Freeman's garage.

Five days after the robbery, on November 7, 1988, Milwaukee police arrested Rickey Lee Harris. After being taken to the station, Harris was given his Miranda warnings and informed of the evidence against him. Harris indicated that he would speak only with Special Agent Dan Craft, an FBI agent whom Harris apparently knew and trusted. When the agent arrived, Craft told Harris that he did not have to talk with him. Craft did not, however, re-read the formal Miranda rights. According to Craft and the Milwaukee police officers present at the time, Harris then confessed to the robbery of the Reliance Savings and Loan.

Harris was charged in the Eastern District of Wisconsin with one count of armed bank robbery in violation of 18 U.S.C. 2113(a), and a second count of using and carrying a firearm, in the commission of a crime of violence in violation of 18 U.S.C. 924(c). Prior to trial, John Carlson, Harris' court-appointed attorney asked for and received permission from the court to withdraw as defense counsel. The court then appointed Dennis Coffey to serve as Harris' attorney at trial. A three-day jury trial began on February 27, 1989. The jury returned a verdict of guilty on the count of bank robbery on March 1. The district court sentenced Harris to 266 months imprisonment. Harris filed a timely notice of appeal.

Harris raises several challenges to his conviction. Only one, however, merits extended discussion: whether the trial court erred by admitting into evidence the out-of-court statements of Harris' former attorney. The resolution of this issue turns, in part, upon the determination of whether an attorney may be considered the agent of his client for purposes of the Federal Rules of Evidence.

This rarely litigated legal issue comes to us as the result of an unfortunate gambit by Harris' first appointed counsel, John Carlson. Apparently, in an attempt to develop Harris' defense, Carlson had visited Leslie Freeman, the "garage eyewitness," at work and showed him pictures of Harris' brother, James. The defense's theory was that James had committed the robbery and fled to Freeman's garage, and that Rickey Harris was simply a victim of mistaken identity. Freeman, however, upon reviewing the pictures, did not think James looked anything like his brother, and was confident that Rickey Harris, not James, was the man he saw in his garage. Freeman indicated this to Carlson during the visit at Freeman's office. Though defense counsel continued to pursue this mistaken identity theory, any reference to Carlson's visit was carefully buried. During Freeman's cross-examination, however, defense counsel asked Freeman if he had been asked to look at photographs other than the ones included in the photograph line-up from which he identified Harris. Freeman asked if this included attorneys. Defense counsel responded "sure." Freeman then explained that a man identifying himself as John Carlson, Harris' attorney, had visited Freeman at work and showed him a picture of Harris' brother James. On re-direct examination, Freeman explained that he was confident that Rickey Harris, not James, was the person he had talked to in his garage. This testimony effectively crushed the defense's theory that James had committed the robbery.

The court permitted Freeman to testify about Carlson's statements, over defense counsel's vigorous objections, holding that Carlson was an agent of the defendant acting within the scope of his agency when he visited Freeman, and that therefore Carlson's statements were not hearsay under Fed. R. Evid. 801(d)(2)(D). On appeal, Harris now contends that this use of his former attorney's statements was reversible error.

... Under the traditional law of agency, the statements of an agent made in the course of the agency serve to bind the principal. Thus, such statements are presumably reliable in the absence of cross-examination because they are considered as if they were statements of the principal himself.

An attorney may be the agent of his client for purposes of Rule 801(d)(2)(D). The unique nature of the attorney-client relationship, however, demands that a trial court exercise caution in admitting statements that are the product of this relationship. As at least one circuit has noted, "the routine use of attorney statements against a criminal defendant risks impairment of the privilege against self-incrimination, the right to counsel of one's choice and the right to effective assistance of counsel." United States v. Valencia, 826 F.2d 169, 172 (2d Cir. 1987). Moreover, "the free use of prior [statments] may deter counsel from vigorous and legitimate advocacy" on behalf of his client. [United States v. McKeon, 738 F.2d 26, 32 (2d Cir. 1984).] Thus, a more exacting standard must be demanded for admission of statements by attorneys under Rule 801(d)(2)(D), "in order to avoid trenching upon other important policies."

Turning to facts of Harris' case, however, we are satisfied that these policies were not harmed by the admission of Carlson's statements. Carlson did withdraw as Harris' defense counsel, thus implicating the policies ... concerning the effective assistance of the counsel of one's choosing. Carlson's withdrawal cannot be linked to the possible use of these out-of-court statements. If anything, Carlson's absence is the likely result of his becoming a possible witness in Harris' trial due to his unsuccessful gambit. Whatever the reason, however, Harris was effectively represented at trial and Carlson's withdrawal predated any discussion of the use of these statements.

Beyond this, Carlson's statements did not impair Harris' privilege against self-incrimination. These statements, and the inferences drawn from them, undermined the defense's theory of mistaken identity. They did not, however, force Harris to take the stand to rebut them. Carlson was not relating confidential information about his client to Freeman. Instead, he was testing a theory on behalf of his client. Harris' rights under the fifth amendment were burdened by allowing this testimony only to the extent that any damaging piece of evidence generally forces a defendant to present a competing explanation to the jury. This does not, however, violate the privilege against self-incrimination.

Finally, allowing Carlson's statements to be presented to the jury did not impair "vigorous and legitimate advocacy" on Harris' behalf. The defense continued to present its theory of mistaken identity and the jury was free to accept this. They did not. Carlson gambled that Freeman would be confused by the picture of James Harris. He lost. Other attorneys will have to assess the risks of such a strategy in the future. We cannot say, however, that legitimate advocacy would be chilled by requiring lawyers to make such judgment calls. Effective advocacy requires strategic and tactical decisions at all levels of the criminal process. The fact that a lawyer's unsuccessful maneuver might be used against his client will not unduly chill legitimate advocacy.

Nor does such a result conflict with the Second Circuit's holdings in McKeon and Valencia. In McKeon, 738 F.2d 26, the court was concerned with the admission of certain statements made by defense counsel in a previous trial which were now inconsistent with the defendant's current theory of defense. Thus, the court in McKeon was faced with various concerns not present here, including forcing criminal defendants to face a "Hobson's choice" between limiting their defense arguments at a later trial to ones offered at an earlier trial, or having any later arguments impeached with earlier ones. Valencia, 826 F.2d 169, was concerned with informal statements made by a defense attorney to a prosecutor during an off-the-record discussion of the defendant's case. As a matter of policy we encourage such open discussions to encourage swift administration of trials. This policy concern is obviously not seriously implicated by the admission of statements elicited by an attorney on a gambit such as Carlson's visit to Freeman. We must also note that, these differences from our case aside, the Second Circuit has narrowed the reach of McKeon and Valencia in United States v. Arrington, 867 F.2d 122 (2d Cir. 1989), holding that despite the concerns raised about the use of attorney's out-of-court statements, no special procedures are required for the admission of such evidence.

Carlson was acting as an agent of his client when he interviewed Freeman. He was his counsel of record and his statements were made within the scope of that relationship. For purposes of Rule 801(d)(2)(D), therefore, these statements were technically not hearsay and were admissible against Harris. None of the policy concerns inherent in the lawyer-client relationship were infringed by admitting this evidence. Decisions on the admission of evidence are within the broad discretion of the trial judge, and we will only reverse such decisions upon a clear abuse of that considerable discretion. For purposes of determining whether the special policy concerns implicated by the admission of an attorney's statements as the agent of a client, we also must rely on the discretion of the trial judge and his or her close proximity to the parties involved. Valencia, 826 F.2d at 173. The admission of Carlson's out-of-court statements was not an abuse of this discretion.

 


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