UNITED STATES of America, Plaintiff-Appellee, v. Hughes A. BAGLEY, Defendant-Appellant

concurring in part and dissenting in part:

I write separately to express my views regarding the holding in Massiah v. United *1242 States, 377 U.S. 201 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964). In addition, I dissent from the majority’s conclusion that appellant received a fair trial despite the possibility that extrinsic evidence may have affected the jury’s verdict. I would remand for a new trial.

I

THE MASSIAH ISSUE

The majority holds that this case is controlled by our previous decisions in United States v. Irwin, 612 F.2d 1182 (9th Cir. 1980), and United States v. Glover, 596 F.2d 857 (9th Cir.), cert. denied, 444 U.S. 860 , 100 S.Ct. 124 , 62 L.Ed.2d 81 (1979). I agree, but I believe the majority has somewhat overstated Glover's reach.

The majority states that in Glover and Irwin “this court held that to establish a violation of Massiah defendant must show that he suffered prejudice at trial as a result of evidence obtained from interrogation outside the presence of counsel.” In a case like this one, where none of the evidence obtained from the informant was used at trial, Glover and Irwin do require prejudice. Both Glover and Irwin recognized, however, that Massiah…

AMENDED OPINION

Appellant Bagley was convicted of being a felon in possession and receipt of firearms and of dealing in firearms without a license. The district court entered judgments of acquittal at the close of the government’s case on one count of receipt of firearms and on a charge of obstructing justice. Our jurisdiction rests on 28 U.S.C. § 1291 (1976). We affirm.

I.

FACTUAL BACKGROUND

In January 1978 appellant Bagley was convicted of a felony and placed on both *1237 supervised probation and special parole. By superseding indictment of May 15, 1979, appellant was charged with two counts of being a felon in possession of firearms in violation of 18 U.S.C. App. § 1202(a) (1976), three counts of being a felon in receipt of firearms in violation of 18 U.S.C. § 922 (h) (1976), one count of dealing in firearms without a license in violation of 18 U.S.C. § 922 (a)(1) (1976), and one count of obstruction of justice in violation of 18 U.S.C. § 1503 (1976). The factual basis of these charges also supported appellant’s simultaneous arrest on a probation revocation warrant. Probation revocation proceedings were held during which the government presented evidence substantially…

641 F.2d 1235 7 Fed. R. Evid. Serv. 1657 , 7 Fed. R. Evid. Serv. 930 UNITED STATES of America, Plaintiff-Appellee, v. Hughes A. BAGLEY, Defendant-Appellant. No. 79-1581. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 9, 1980. Decided Jan. 30, 1981. Amended April 13, 1981. Robert J. Wayne, Seattle, Wash., argued, Irwin H. Schwartz, Seattle, Wash., on brief, for defendant-appellant. Francis J. Diskin, Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. AMENDED OPINION Before SNEED and FLETCHER, Circuit Judges, and JAMESON * , District Judge. SNEED, Circuit Judge: 1 Appellant Bagley was convicted of being a felon in possession and receipt of firearms and of dealing in firearms without a license. The district court entered judgments of acquittal at the close of the government's case on one count of receipt of firearms and on a charge of obstructing justice. Our jurisdiction rests on 28 U.S.C. § 1291 (1976). We affirm. I. FACTUAL BACKGROUND 2 In January 1978 appellant Bagley was convicted of a felony and placed on both supervised probation and special parole. By superseding…