                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-1997

Bey v. Morton
Precedential or Non-Precedential:

Docket
95-5608




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Filed August 28, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-5608

MARKO BEY
       Appellant

v.

WILLIS E. MORTON, SUPERINTENDENT;
PETER VERNIERO,* ATTORNEY GENERAL

*Pursuant to F.R.A.P. 43(c)

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 94-cv-01735)

Argued February 4, 1997

BEFORE: STAPLETON AND MANSMANN, Circuit Judges,
and POLLAK,** District Judge

(Opinion Filed August 28, 1997)



_________________________________________________________________
** Hon. Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.



       Susan L. Reisner, Public Defender
       James K. Smith, Jr. (Argued)
       Assistant Deputy Public Defender
       Office of Public Defender
       Appellate Section
       31 Clinton Street - 9th Floor
       P.O. Box 46003
       Newark, NJ 07101
       Attorneys for Appellant

       Peter Verniero, Attorney General
       Catherine A. Foddai (Argued)
       Deputy Attorney General
       Office of Attorney General of
        New Jersey
       Division of Criminal Justice
       Richard J. Hughes Justice Complex
       P.O. Box CN086
       Trenton, NJ 08625
       Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

While incarcerated on death row in New Jersey, Marko
Bey engaged in numerous "everyday" conversations with
Corrections Officer Alexander Pearson. These discussions
covered many different topics from sports, to women, to the
news. In the course of their discourse, Bey confessed to the
murders of two women. When Bey's death sentence was
subsequently vacated and the convictions for the murder
and sexual assault of one of the victims were reversed, the
state introduced Pearson's testimony at the retrial, and Bey
was again found guilty and this time received a sentence of
life imprisonment. After Bey's convictions were affirmed on
direct appeal, he sought relief in the district court. Bey now
appeals from the district court's denial of his petition for
habeas corpus relief.

We hold that there was no violation of Bey's Sixth
Amendment right to counsel because there was no

                                 2



deliberate elicitation of incriminating information for use in
connection with his prosecution. We also hold that there
was sufficient evidence at Bey's second trial to support the
jury's findings of guilt. Thus, we will affirm the district
court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The bruised and battered body of Cheryl Alston was
found by a jogger on April 2, 1983, in a vacant lot across
the boardwalk from the beach in Ocean Grove, Neptune
Township, New Jersey. A police investigation ensued, and
Bey was arrested on May 6, 1983. On December 13, 1983,
he was convicted for the murder, felony murder, aggravated
assault, and aggravated sexual assault of Alston and two
days later was sentenced to death. The New Jersey
Supreme Court vacated Bey's death sentence on August 2,
1988, because he had been a juvenile at the time of the
offense and was therefore not eligible for the death penalty.
See State v. Bey I, 548 A.2d 846 (N.J. 1988). The Court also
reversed the convictions, remanded the case, and ordered
the suppression of Bey's confession to the police.

In a separate prosecution, Bey was also convicted of
murdering Carol Peniston in 1983. On the day that the New
Jersey Supreme Court vacated Bey's convictions for the
Alston murder, the Court also vacated the death sentence
he received for the Peniston murder, but affirmed his
conviction in that case, see State v. Bey II, 548 A.2d 887
(N.J. 1988). Bey has since been again sentenced to death
for the Peniston murder. See State v. Bey, 645 A.2d 685
(N.J. 1994); State v. Bey, 610 A.2d 814 (N.J. 1992).

In the course of the state's preparation for Bey's retrial
in 1988, an investigator from the Monmouth County
Prosecutor's Office interviewed some 12 or 13 corrections
officers regarding Bey. He discovered that, in addition to
the earlier confession to the police, Bey had made
statements to Pearson while incarcerated in late 1983 and
early 1984 at the Capital Sentencing Unit ("CSU") of the
New Jersey State Prison in Trenton. In a statement taken
September 19, 1988, Pearson told the investigator that
shortly after Bey's arrival at the CSU he had "talked" with

                                3



Bey about "why he was here" and "why he did it." Bey had
disclosed to him that he killed two women, one of whom he
"raped and beat" "on the beach," and that he was "high"
while committing the murders.

Bey subsequently challenged the admissibility of
Pearson's proposed testimony on Sixth Amendment
grounds and a suppression hearing was held.1 At the
hearing, Bey denied ever discussing the murders with
Pearson, but Pearson reiterated the statements he had
made to the investigator. Pearson also stated that he had
never initiated a conversation about Bey's murders and had
only discussed them when Bey brought up the subject.
Pearson did, however, acknowledge asking Bey for
clarification "if it was something I didn't understand." The
only specific example of a question Pearson remembered
asking about the murders was "I asked him why would he
do that. What kind of mind you was in." Pearson also
indicated that he was aware that Bey had an appeal
pending and that he was represented by counsel.

At the close of the suppression hearing, the court found
that the structure of the CSU was such that the prisoners,
as a practical matter, could not converse with one another.
Thus, conversations could be conducted only with the
guards. As a corrections officer on the CSU, Pearson was
charged with the responsibility of keeping Bey in custody
and safe. His responsibilities, according to the court,
included talking to and observing Bey to detect any suicidal
tendencies. The court also observed that the dialogue
between Bey and Pearson "touched a whole host of topics,"
including sports, women, and "life in jail," but that on five
to seven occasions "there was a discussion" about why Bey
was incarcerated. The only question mentioned by the trial
court was characterized as Pearson's having asked, "Why
did it happen?" The response, according to the court, was
"drugs or alcohol." The trial judge found that Pearson
"never set out to gain information from Mr. Bey in the
capacity of being a corrections officer; that they were
_________________________________________________________________

1. Bey's motion to suppress his confession relied on both the Fifth and
Sixth Amendments. Before us, he relies exclusively on the Sixth
Amendment.

                                4



talking, as he described it, man to man," and that "[i]t was
the inmate who initiated the conversations." Furthermore,
the court noted that Pearson made no report of his
conversations with Bey prior to being interrogated five years
after they occurred. Pearson's testimony was "found to be
extremely credible, although reluctantly given."

The trial judge concluded that the Miranda rule2 was not
violated, that there was nothing about the setting that was
coercive, and that Bey's statements were entirely voluntary.
While the isolation in the unit could fairly be described as
involving pressure to converse with a guard, there was no
physical or psychological pressure to converse about
incriminating subject matters. The trial judge observed that
the conversations between the men "had nothing to do ...
with whether or not the Court ultimately was going to
overturn the conviction." The court ultimately ruled that
Pearson's testimony would be allowed into evidence.

At Bey's second trial, Pearson testified only that Bey told
him that "he had beat [sic] and raped a woman on the
beach" and that she "died." The jury did not hear from
Pearson any information about drugs, alcohol, or any other
motivation for the crime.

The prosecution supplemented Bey's confession by
offering the testimony of investigators from the prosecutor's
offices of two other New Jersey oceanfront counties. The
investigators confirmed that there had been no homicides of
females in the vicinity of the beaches in either county
between the defendant's return to New Jersey in March of
19833 and his arrest in May of that year; the prosecution
used this evidence to link Bey's statement that he had "beat
and raped a woman on the beach" to Cheryl Alston's death,
arguing that Bey's statement could refer to no other
murder. The other evidence included: (1) police testimony
and photographs describing the crime scene in which
Alston's naked body had been found in a vacant lot across
the boardwalk from the beach along with a "two-by-four,"
_________________________________________________________________

2. See Miranda v. Arizona, 384 U.S. 436 (1966).

3. In order to prevent the jury from hearing that Bey had been
incarcerated and was paroled on March 19, 1983, the parties stipulated
that he "resided" outside of the state of New Jersey prior to that date.

                                5



which had on it blood and hair later determined to match
those of the victim; (2) testimony by the medical examiner
that Alston died of blunt blows with a "two-by-four"
instrument to the head, chest, and abdomen; (3) the
testimony of a forensic scientist that a semen stain on the
victim's discarded clothing was consistent with Bey's
enzyme markings, but that spermatozoa removed from the
victim's vagina was not; and (4) the testimony of another
forensic scientist that the single set of footprints in the
sand next to the body were the same "size," "pattern," and
"make" as a pair of sneakers seized at the time of Bey's
arrest at his mother's house 1.7 miles from the location of
the crime scene.

The jury convicted Bey once again of murder, felony
murder, aggravated assault, and aggravated sexual assault.
The court sentenced him to life imprisonment with a 30-
year parole disqualifier for the murder count and a
consecutive term of 20 years with a 10-year parole
disqualifier for the aggravated sexual assault count, and
imposed a $2,000 Violent Crime Compensation Board
penalty. The felony murder and aggravated assault counts
were merged.

On appeal, the Appellate Division of New Jersey's
Superior Court disagreed with the trial court's
determination that Pearson was not acting as a "law
enforcement agent" during his conversations with Bey.
State v. Bey, 610 A.2d 403, 411-12 (N.J. Super. Ct. App.
Div. 1992). The court observed that a corrections officer is
a law enforcement agent by statute in New Jersey, see
N.J.S.A. 2A:154-4, that the guards were all encouraged to
maintain good communication lines with the inmates as a
suicide precaution, that it was hard for prisoners to
communicate with one another, and that the "corrections
officer was one of the few people they could have any daily
contact with." Bey, 610 A.2d at 411. However, the Appellate
Division held that the comments were not "deliberately
elicited" by the state in violation of Bey's right to counsel.
The court observed that the conversations were not
knowingly designed to circumvent the protections of
the Sixth Amendment as Pearson was not instructed to
obtain any incriminating information from Bey, he never

                                6



prepared any reports about the information, there was no
investigative or motivational nexus between the
prosecutor's office and Pearson, and the state only
discovered the confession to Pearson through the
investigation of the prosecutor's office. Id. at 415. The court
also rejected Bey's claim that the evidence at trial had been
insufficient to support his conviction. The New Jersey
Supreme Court denied certification. State v. Bey, 611 A.2d
657 (N.J. 1992).

The district court denied Bey's petition for habeas relief,
holding that Pearson's casual discussions with Bey were
not "deliberately designed to elicit statements from the
defendant that would settle the outcome of the trial one
way or another," and that the sum of the evidence was
sufficient to support Bey's conviction.

II. STANDARD OF REVIEW

In the briefing before us, Bey argued that we should
conduct plenary review of the state court's conclusion that
his Sixth Amendment right was not violated. See Miller v.
Fenton, 474 U.S. 104, 115-17 (1985); Parry v. Rosemeyer,
64 F.3d 110, 113 (3d Cir. 1995), cert. denied, ___ U.S. ___,
116 S. Ct. 734 (1996). The state, on the other hand, urged
us to examine the decision under the more deferential
standard articulated in 28 U.S.C. S 2254, as amended by
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"),4 Pub. L. No. 104-132, 110 Stat. 1214.
_________________________________________________________________

4. Section 2254(d) now provides:

       An application for a writ of habeas corpus on behalf of a person in
       custody pursuant to the judgment of a State court shall not be
       granted with respect to any claim that was adjudicated on the
       merits in the State court proceedings unless the adjudication of
the
       claim--

       (1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States; or

       (2) resulted in a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented in
the
       State court proceedings.

                                  7



When this case was briefed, the federal courts had taken
conflicting positions on whether the AEDPA's amendments
were applicable in non-capital habeas corpus proceedings,
like Bey's, that were pending at the time of the AEDPA's
enactment. The Supreme Court has since resolved the
debate, holding that the AEDPA's modifications to S 2254(d)
and (e) do not apply in such circumstances. Lindh v.
Murphy, ___ U.S. ___, 117 S. Ct. 2059 (1997). Accordingly,
we review Bey's petition under our prior plenary standard
and are not required by the AEDPA to defer to the state
court's conclusion on this legal issue.5

III. RIGHT TO COUNSEL

A.

The Sixth Amendment, which is made applicable to the
states through the Fourteenth Amendment, provides that
"[i]n all criminal prosecutions, the accused shall enjoy the
right ... to have the assistance of counsel for his defense."
U.S. Const. amend. VI; see Estelle v. Smith, 451 U.S. 454,
470 (1981). The Amendment serves to safeguard the
adversarial process by ensuring that once the right to
counsel has attached the accused "need not stand alone
against the State" at any "critical stage" of the aggregate
proceedings against him. Id. at 470; see also United States
v. Henry, 447 U.S. 264, 269 (1980). The purpose of the
Sixth Amendment is to protect the "unaided layman," who
"finds himself faced with the prosecutorial forces of
organized society, and immersed in the intricacies of
substantive and procedural criminal law." United States v.
Gouveia, 467 U.S. 180, 189 (1984) (quoting Kirby v. Illinois,
406 U.S. 682, 689 (1972)).

In a line of cases involving incriminating statements
made to police informants, the Supreme Court has held
that an individual who stands indicted of a crime is denied
_________________________________________________________________

5. Of course, the underlying factual findings by the state court are
entitled to a presumption of correctness. See 28 U.S.C. S 2254(d)(1995);
Kuhlmann v. Wilson, 477 U.S. 436, 459-60 (1986); Pemberthy v. Beyer,
19 F.3d 857, 864 (3d Cir. 1994).

                                  8
his right to counsel when agents of the state circumvent
that right by "deliberately elicit[ing]" inculpatory statements
from him in the absence of his counsel, absent a voluntary
and knowing waiver. Michigan v. Harvey, 494 U.S. 344,
348-49 (1990); see also Kuhlmann v. Wilson, 477 U.S. 436,
457 (1986); Maine v. Moulton, 474 U.S. 159, 173 (1985);
Henry, 447 U.S. at 270; Massiah v. United States, 377 U.S.
201, 206 (1964). The deliberate elicitation doctrine was first
recognized in Massiah, where the defendant, released on
bail, made numerous incriminating statements to his
codefendant, who had agreed to act as a government
informant and had permitted the installation of a
surveillance device in his automobile. Id. The Court
concluded that the protections of the Sixth Amendment
apply to "indirect and surreptitious interrogations as well
as those conducted in the jailhouse" and held that the
defendant's confession had been "deliberately elicited" by
the police in violation of both the Fifth and Sixth
Amendments. Id.

In Henry, the Court determined that the defendant's
pretrial confession to a government informant who had
been placed in the defendant's cell in order to listen to his
comments should have been suppressed. 447 U.S. at 274.
The Court applied Massiah's deliberate elicitation
formulation, observing three relevant factors: (1) the paid
informant was acting under the state's instructions and
had an incentive to produce useful information; (2) the
informant was ostensibly no more than a fellow inmate;
and (3) the defendant was in custody and under
indictment. Id. at 270. Despite the government's specific
instructions to merely listen to the defendant, the
informant had "stimulated" conversations with the
defendant. Id. at 273. The Court held that"[b]y
intentionally creating a situation likely to induce[the
defendant] to make incriminating statements without the
assistance of counsel, the Government violated [the
defendant]'s Sixth Amendment right to counsel." Id. at 274.
The case was not one where " `the constable... blundered;'
rather, it [was] one where the `constable' planned an
impermissible interference with the right to the assistance
of counsel." Id. at 275.

                                9



The Court also found a Sixth Amendment violation where
the confession was obtained by an informant who agreed to
wear a recording device in a meeting with a defendant out
on bail. Moulton, 474 U.S. at 180. The Court invoked
Massiah and Henry and articulated the following principle:
       [K]nowing exploitation by the State of an opportunity to
       confront the accused without counsel being present is
       as much a breach of the State's obligation not to
       circumvent the right to the assistance of counsel as is
       the intentional creation of such an opportunity.
       Accordingly, the Sixth Amendment is violated when the
       State obtains incriminating statements by knowingly
       circumventing the accused's right to have counsel
       present in a confrontation between the accused and a
       state agent.

Moulton, 474 U.S. at 176. Where the police suggested that
the informant wear the wire at the meeting with his
codefendant and the police were aware that the meeting
was for the "express purpose" of discussing the pending
charges and trial defense, a Sixth Amendment violation
occurred. Id. at 176-77.

In Kuhlmann, on the other hand, the Court did not find
a Sixth Amendment violation where an inmate had followed
police instructions and had merely listened to the
confession of his cellmate. 477 U.S. at 456. After the
defendant's arraignment, the police placed him in the same
cell with the informant for the express purpose of
determining who the defendant's accomplices were. The
defendant initially told the informant the same story he had
given to the police, whereupon the informant advised him
that his story "didn't sound too good." Later, the defendant
related the actual events, an account which the informant
surreptitiously noted in writing and rendered to the police.
Id. at 440. The Court cited the Massiah and Henry
decisions and observed that the "primary concern of the
Massiah line of decisions is secret interrogation by
investigatory techniques that are the equivalent of direct
police interrogation." Id. at 459. The Court stated:

       Since "the Sixth Amendment is not violated whenever--
       by luck or happenstance--the State obtains

                                10



       incriminating statements from the accused after the
       right to counsel has attached," a defendant does not
       make out a violation of that right simply by showing
       that an informant, either through prior arrangement or
       voluntarily, reported his incriminating statements to
       the police. Rather, the defendant must demonstrate
       that the police and their informant took some action,
       beyond merely listening, that was designed deliberately
       to elicit incriminating remarks.
Id. at 459 (citation omitted). Because the informant had not
asked any questions but "only listened" to the defendant's
"spontaneous" and "unsolicited" statements, no Sixth
Amendment violation occurred. Id. at 460.

In each case, those charged with Sixth Amendment
violations were conducting, or working with others who
were conducting, an investigation of crimes the defendant
had been charged with committing. They were thus
deliberately seeking to elicit information to be used in
connection with the charges pending against the accused,
the subject matter of the defendant's attorney-client
relationship. In this line of cases, the Court struggled with
the issue of whether there are any circumstances under
which the state can deliberately undertake to secure
incriminating information from a represented defendant in
the absence of counsel and can thereafter use in court the
incriminating information it obtains. The answer that has
evolved is that it can, only if there is not "elicitation"--only
if the government does no more than listen. See Kuhlmann,
477 U.S. at 459. It cannot if the police or their informants
question or otherwise encourage or facilitate the
defendant's discussion of the crime, and this is true even if
the defendant initiates the discussion of the criminal
conduct. See Henry, 447 U.S. at 271-72.

These strict rules are necessary in Massiah-type
situations because the state has deliberately set out to
secure information for use in a pending prosecution and
because the accused, thinking he is communicating with a
fellow inmate rather than a state investigator, is exercising
no judgment as to whether counsel's advice should be
sought. Under these circumstances, the risk of "dilut[ing]
the protection afforded by the right to counsel" is great.

                                11



Moulton, 474 U.S. at 171; see Henry, 447 U.S. at 273
("Conversation stimulated in such circumstances may elicit
information that an accused would not intentionally reveal
to persons known to be Government agents.").

B.

Bey also relies on another line of cases, those involving
court-ordered examinations to obtain information relevant
to the prosecution of the defendant's case. See Powell v.
Texas, 492 U.S. 680 (1989); Satterwhite v. Texas, 486 U.S.
249 (1988); Buchanan v. Kentucky, 483 U.S. 402 (1987);
Estelle v. Smith, 451 U.S. 454 (1981). In Estelle, the Court
held that a defendant in a capital case has "a Sixth
Amendment right to the assistance of counsel before
submitting to [a] pretrial psychiatric interview" ordered by
the court for the purpose of securing information for use in
connection with the defendant's trial. Id. at 469.6 It followed
that, if counsel was not notified of the interview and given
the opportunity to advise his client on whether to submit to
it, information secured from the defendant could not be
used by the state at trial. Since the state had used the
psychiatrist to prove future dangerousness at the penalty
stage, the death penalty judgment had to be reversed. Id. at
471. Accord Powell, 492 at 681-85 (finding violation of Sixth
Amendment where defense counsel was not informed that
competency and insanity examination would include issue
of future dangerousness); Satterwhite, 486 at 252-55
(holding defense counsel does not receive constructive
notice of a mental examination and its scope through the
filing of documents granting an ex parte motion for such an
exam). Compare Buchanan, 483 at 424-25 (where defense
counsel had raised mental status defense and had moved
for a psychiatric examination, no Sixth Amendment
violation occurred when court-ordered examination was
used at trial to rebut the defense).
_________________________________________________________________

6. In Estelle, the purpose of the interview was to determine competence
to stand trial, 451 U.S. at 456-57, whereas in Powell, it was for that
purpose and to determine sanity at the time of the offense. 492 U.S. at
681. The motivation for the evaluation in Satterwhite included both
competency for trial and sanity at the time of the crime as well as future
dangerousness. 486 U.S. at 252.

                                12



In the Estelle line of cases, as in Massiah, those acting on
behalf of the state, i.e., the prosecutor, judge, and
psychiatrist, were deliberately attempting to secure
information from the defendant for use in connection with
his prosecution. Accordingly, a similar risk of diluting the
protection afforded by the Sixth Amendment existed in this
line of cases.

C.

The critical distinction between this case and the
Massiah and Estelle lines is that Pearson, while a state
actor, was not a state actor deliberately engaged in trying to
secure information from the defendant for use in
connection with the prosecution that was the subject
matter of counsel's representation. While it may be
debatable whether any of the information used at trial was
given by Bey in response to a question from Pearson, the
state court found, based on undisputed facts, that no
question asked by Pearson was part of an effort
"deliberately designed to elicit incriminating remarks" for
use against Bey. While it thus may not be clear whether
there was an "elicitation" by Pearson, there certainly was no
"deliberate elicitation" within the teachings of the cases Bey
relies upon.

Ordinarily, when a state agent converses with an indicted
defendant under circumstances in which the agent should
expect that incriminating information might be disclosed
and such information is disclosed and is subsequently used
in the prosecution, it can be presumed that there was a
deliberate elicitation of information for use in connection
with the case. The undisputed facts in this case, however,
are simply inconsistent with a deliberate plan on the part
of Pearson to garner information for use against Bey.7
_________________________________________________________________

7. In an appropriate case, the trial court could preclude the prosecution
from admitting a corrections officer's testimony into evidence. If a
corrections officer's role requires conversations with inmates under
circumstances in which inculpatory statements should be foreseen, the
prosecution should expect to forego, at the subsequent trial of the
inmate, the use of any statements elicited in those conversations, unless
the inmate has been given Miranda warnings.

                                13



Pearson was known by Bey to be an employee of the
state, not a fellow inmate or confederate. While the
circumstances were such that Pearson should have
anticipated that Bey would converse freely with him, given
Pearson's status as a guard and the fact that he did little,
if anything, to draw Bey out on the subject of his crimes,
we question whether Pearson should have anticipated the
confession which Bey volunteered. But even if we assume
elicitation on Pearson's part, the undisputed facts do not
support the hypothesis that Pearson intended to elicit
information for use against Bey. First, Pearson had no
responsibility for eliciting or reporting information for use
in the prosecution of Bey's case and was not working with
anyone who had such responsibility. Second, and most
importantly, Pearson did not behave like someone who
intended to secure incriminating statements from Bey. The
record lacks evidence of any questions designed to elicit the
statement that Bey had raped and beaten a woman to
death on the beach, and merely reveals Pearson's asking
"why" Bey had committed the act and seeking clarification
"if it was something [he] didn't understand." Pearson did
not take any notes or compile any reports of his
conversations with Bey. Cf. Kuhlmann, 477 U.S. at 440
(informant surreptitiously recorded cellmate's statements in
writing). In fact, Pearson disclosed the confession to no one
for five years.8 It was only through the systematic efforts of
the investigator that the prosecutor's office uncovered Bey's
statements. Even Pearson's testimony in Bey's case was
"reluctantly given." Thus, the state's receipt of Bey's
_________________________________________________________________

8. In this regard, we think Bey's case is similar to that of the jailhouse
informant in United States v. York, 933 F.2d 1343, 1360 (7th Cir. 1990).
The informant in York did not report to the FBI the information he had
obtained through casual conversations with the defendant until several
months after the discussions had occurred when he learned from a
newspaper account that the defendant's conviction had been reversed.
The Seventh Circuit observed that "[i]t is inconceivable that had these
statements been the fruit of an attempt to deliberately elicit information
from [the defendant] that [the informant] would not have reported them
to [his FBI contact] at that time." Id. Similarly, there is no explanation
for Pearson's failure to immediately convey his information to the
prosecutor's office or even his supervisor, if he intended to elicit
incriminating information from Bey.

                                  14



confession was not the result of any deliberate elicitation by
Pearson for use in connection with Bey's prosecution, and
the state's use of Bey's confession at trial did not violate the
Sixth Amendment.9

IV. Sufficiency of the Evidence

We also find no merit in Bey's sufficiency of the evidence
challenge. Pearson's testimony, if credited, established that
Bey had "beat[en] and raped a woman on the beach" and
that she had "died." Investigators from the prosecutor's
offices in two New Jersey oceanfront counties confirmed
that there were no homicides of females in the vicinity of
the beaches in their jurisdiction during the relevant time
period; this evidence narrowed the possibility that Bey was
confessing to the murder of someone other than Alston
when he admitted that he had beaten and raped a woman
_________________________________________________________________

9. Of course, any evidence of an additional legitimate reason for
interviewing Bey would be irrelevant were we to determine that Pearson
had deliberately acted to secure information for the prosecution. See
Moulton, 474 U.S. at 178-80. The Court in Moulton rejected the state's
argument that there was no Sixth Amendment violation because the
police had a legitimate basis for their surveillance activities which was
said to validate their conduct, i.e., they listened to the conversation in
order to protect the informant from future harm and to investigate other
crimes. As the Court concluded, "[b]ecause we hold that the ... police
knowingly circumvented [the defendant]'s right to have counsel present
at a confrontation between [the defendant] and a police agent, the fact
that the police had additional reasons for recording[the defendant]'s
meeting with [the informant] is irrelevant." Id. at 180.

Moulton thus instructs that the state's knowing exploitation of an
opportunity to secure incriminating statements from a counseled
defendant in the absence of his attorney may not be "cured" merely
because the state has a right to obtain information for other purposes.
Id. at 178. Such is not the issue in our case, as the government is not
claiming that Pearson acted deliberately to secure the information for the
investigating authorities but was justified in doing so because they also
needed it, for example, in order to monitor Pearson's performance of his
suicide watch. Where there is no deliberate attempt to secure
prosecution information, the admission of the statements does not
"invit[e] abuse by law enforcement personnel in the form of fabricated
investigations;" nor does it "risk the evisceration of the Sixth Amendment
right recognized in Massiah." Id. at 180.

                                15



on a beach. Alston's naked and battered body was found
just across the boardwalk from the beach with her bra
wrapped around her neck. She died from severe blunt
trauma caused by a two-by-four inch instrument matching
the stick found at the scene, bearing her blood and hair.
Articles of her clothing located at the scene were stained
with sperm which was consistent with Bey's enzyme
markers. The single set of footprints matched the"size,"
"pattern," and "make" of a pair of sneakers seized at the
time of Bey's arrest from his mother's house less than two
miles away from the location of the body.

Taking this evidence in the light most favorable to the
state, as we must, we hold that Pearson's testimony and
the other evidence that corroborates and supplements it
provides a satisfactory basis for the jury's beyond a
reasonable doubt verdict. See Jackson v. Virginia, 443 U.S.
307, 318-19 (1979); Jackson v. Byrd, 105 F.3d 145, 147-48
(3d Cir.), cert. denied, U.S. ___, 117 S. Ct. 2442 (1997). In
reaching this conclusion, we are not unmindful of the fact
that the sperm found in the victim's vagina did not match
Bey's enzyme type. The jury was entitled to evaluate this
fact in light of the forensic scientist's uncontested
testimony that sperm may remain in the body for up to 48
hours after sexual intercourse, although it is rarely
discovered later than 16 hours after such activity. The jury
was thus not required to conclude that this undisputed fact
was inconsistent with Bey's guilt.

V. CONCLUSION

We will affirm the judgment of the district court.
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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