United States of America, Plaintiff-appellee, v. Harry Stephens, Jr. and Claude Lee Hooper, Defendants-appellants, 609 F.2d 230 (5th Cir. 1980)

Appellants Hooper and Stephens, along with five other individuals, were charged in a multi-count indictment with several violations of 18 U.S.C.A. § 641 and with conspiring to violate 18 U.S.C.A. §§ 641 & 2073. The district court ordered appellants severed for trial from their five codefendants. Of the other five defendants, two pled guilty, and each of the remaining three were convicted by a jury of conspiracy and two substantive violations. Prior to the start of appellants' trial, defense counsel and the United States Attorney agreed to a stipulation to the effect that the transcript of the prior trial would be admitted at appellants' trial without objection from either side.¹  Each side reserved the right to offer additional evidence at trial. As part of the bargain, the government agreed to drop all but one of the substantive counts against Hooper and Stephens and to prosecute the remaining substantive counts as misdemeanors. After questioning the attorneys and appellants, the district court accepted the stipulation and ordered that it be filed. A bench trial was held and appellants were found guilty on all counts.

Appellants first argue that they were denied their Sixth Amendment right of confrontation by having stipulated to being tried, for all intents and purposes, on the transcript of the prior trial.

While the right to confront and cross-examine witnesses has long been viewed as fundamental to the type of fair and impartial trial which our Constitution guarantees every defendant in a criminal case, See Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), there is no doubt that the right can be waived, See Brookhart v. Janis, 384 U.S. 1, 4, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966). The issue we confront in this case is whether counsel, by stipulating to the admission of evidence, may waive his client's constitutional right to confront the source of the evidence.

While this issue appears to be one of first impression in this Court, it has received considerable attention in the Ninth Circuit and, to a lesser extent, the First and Sixth Circuits. In Wilson v. Gray, 345 F.2d 282 (9th Cir. 1965), defense counsel, without objection from his client, stipulated that the case be heard on the transcript of the preliminary hearing. Although each side reserved the right to introduce additional evidence, neither did so. The defendant challenged his conviction on the ground that the purported waiver was ineffective because he had not personally waived his right of confrontation. Id. at 283. Rejecting this argument, the court held that, where the defendant does not object, counsel may, as a matter of trial tactics, waive the right to confront and cross-examine witnesses. Id. at 286-88. See also Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912). Wilson has been reaffirmed repeatedly by the Ninth Circuit. See United States v. Goldstein, 532 F.2d 1305, 1314-15 (9th Cir.), Cert. denied, 429 U.S. 960, 97 S. Ct. 384, 50 L. Ed. 2d 327 (1976); United States v. Martin, 489 F.2d 674, 678 (9th Cir. 1973), Cert. denied, 417 U.S. 948, 94 S. Ct. 3073, 41 L. Ed. 2d 668 (1974); Phillips v. Pitchess, 451 F.2d 913, 919 (9th Cir. 1971), Cert. denied, 409 U.S. 854, 93 S. Ct. 187, 34 L. Ed. 2d 97 (1972); Symons v. Klinger, 372 F.2d 47, 50 (9th Cir. 1967). And the First and Sixth Circuits have decided the issue in the same manner. See Palfy v. Cardwell, 448 F.2d 328, 330 (6th Cir. 1971); Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir. 1954). But see Phillips v. Wyrick, 558 F.2d 489, 496 (8th Cir. 1977), Cert. denied, 434 U.S. 1088, 98 S. Ct. 1283, 55 L. Ed. 2d 793 (1978) ("A waiver of the confrontation right must be effected personally by an accused who is acting intentionally and knowledgeably. . . . (A)nd a choice to waive made by counsel Not participated in by petitioner does not automatically bar relief to the petitioner.") (emphasis added).

We find the reasoning of these cases persuasive, and today hold that counsel in a criminal case may waive his client's Sixth Amendment right of confrontation by stipulating to the admission of evidence, so long as the defendant does not dissent from his attorney's decision, and so long as it can be said that the attorney's decision was a legitimate trial tactic or part of a prudent trial strategy.² 

Applying this standard to the instant case, we conclude that appellants' right of confrontation was effectively waived by their attorney. Before the stipulation was accepted by the district court, the following colloquy took place:

THE COURT: Mr. Newth, do those correctly recite the stipulations and agreements that you've entered into on behalf of Mr. Stephens and Mr. Hooper?

MR. NEWTH: Yes, they do, Your Honor.

THE COURT: All right. And Mr. Stephens, Mr. Hooper, you've heard the stipulations read and the statements by your counsel. Is that Do they correctly and accurately reflect your agreement?

MR. STEPHENS: Yes, Your Honor.

MR. HOOPER: Yes, Your Honor.

THE COURT: Do you understand what we've done and what we're doing?

MR. STEPHENS: Yes, Your Honor.

MR. HOOPER: Yes, Your Honor.

THE COURT: And you've had an opportunity to review that with your Mr. Newth, your lawyer?

MR. STEPHENS: Yes, Your Honor.

MR. HOOPER: Yes, Your Honor.

THE COURT: All right. Thank you. They may be filed.

MR. NEWTH: Your Honor, for the purpose of the record, may I state that on the date of the agreed first stipulation, and I think it was June MR. PRATHER: 14th. July 14th.

MR. NEWTH: July 14th. That was outside the courtroom of Judge Hughes, that was done over a period of three hours, from 2 p. m. till almost 5 p. m. on that particular date, that Mr. Stephens and Mr. Hooper was present, that we fully went into that agreement at long length.

THE COURT: Okay. Do you agree with that Mr. Stephens and Mr. Hooper?

MR. STEPHENS: Yes, Your Honor.

MR. HOOPER: Yes. Your Honor.

THE COURT: You're fully satisfied to proceed in this manner?

MR. STEPHENS: Yes, Your Honor.

MR. HOOPER: Yes, Your Honor.

THE COURT: And you understand you're not obligated to do this. You could not agree and the government would be put to its proof of every element against you and under the Rules of Evidence and this entire preceding trial would not be offered as it is. The government would have to start from scratch, so to speak. You understand that?

MR. STEPHENS: Yes.

MR. HOOPER: Yes, sir.

THE COURT: All right. Read the indictment.

Record, Tr. at 6-10.

Our reading of the record convinces us that both Hooper and Stephens, with full knowledge of the implications, consented to the stipulation. There is no evidence that they expressed any reservations to their attorney prior to their appearance before the district judge. Nor can we say that counsel's decision on this matter was not a legitimate trial tactic or part of a prudent trial strategy. Appellants originally were charged with several substantive violations of 18 U.S.C.A. § 641, all of which could have been prosecuted as felonies. As the quid pro quo for appellants consenting to the stipulation, the government agreed to drop all but one of the substantive counts and to prosecute the remaining counts as misdemeanors. Moreover, having witnessed the prior trial, defense counsel may very well have felt that his clients would fare better at their trial by agreeing to the admission of the transcript instead of forcing the government to recall the witnesses who would then be focusing their testimony on the activities of Hooper and Stephens rather than their five codefendants. This certainly would have been a reasonable decision in view of the fact that appellants' defense, at least in part, was that they were not in any way involved in the wrongdoings of the other five defendants. On these facts, we find no grounds for reversal.

Appellants' second argument, concerning the nature of the funds that they were charged with embezzling, was considered and expressly rejected by this Court in United States v. Smith, 596 F.2d 662, 663-64 (5th Cir. 1979).

Finally, appellants contend that they were denied effective assistance of counsel. Because this is a direct appeal, the issue is not properly before this Court:

The law of this Circuit is that claims of inadequate representation cannot be determined on direct appeal where such claims were not raised before the District Court and there has been no opportunity to develop and include in the record evidence bearing on the merits of the allegations.

United States v. Rodriguez, 582 F.2d 1015, 1016 (5th Cir. 1978) (per curiam).

The judgment of the district court is Affirmed without prejudice to the right of appellants to raise the issue of ineffective assistance of counsel in a proper proceeding.

AFFIRMED.