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                 United States Court of Appeals
                     For the First Circuit





No. 98-1897

                          UNITED STATES,

                            Appellee,

                                v.

                        RICHARD N. LaBARE,

                      Defendant, Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]




                              Before

                      Selya, Circuit Judge,
                   Cyr, Senior Circuit Judge,
                   and Boudin, Circuit Judge.
                                
                                
                                
                                
     Jane Elizabeth Lee for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney, was on brief for
appellee.





September 8, 1999



                                
                                

�  BOUDIN, Circuit Judge.  On February 8, 1997, a taxi
driver named Merritt Warren was robbed of $1,800 in cash and shot
multiple times while in a parking lot in Portland, Maine.  The
police arrested Richard LaBare on an unrelated matter on February
27, 1997.  Immediately thereafter, based on evidence described
below, the state brought charges against LaBare for attempted
murder and robbery in the Warren case, and the federal government
filed a criminal complaint alleging a felon-in-possession violation
in connection with the same event.  18 U.S.C. � 922(g).  Counsel
was appointed that same day, and LaBare was placed in the Kennebec
County Jail in Augusta, Maine, pending trial on the state and
federal charges.
  While in the jail, LaBare shared a cell block with
several other prisoners, including Joseph Chaloux and Arthur Mollo. 
Chaloux had been sentenced to six months imprisonment on a state
burglary conviction, and Mollo was then awaiting trial on a felon-
in-possession charge. Over a period of weeks, LaBare allegedly made 
inculpatory statements to both Mollo and Chaloux about the Warren
shooting.  As Mollo and Chaloux later testified, LaBare gave them
detailed, if conflicting, accounts of what happened on February 8,
1997, and solicited their help to prevent LaBare's girlfriend and
Warren from testifying against LaBare (through bribery, threats of
physical harm, or harm itself).
  Aided in part by Chaloux's testimony against LaBare, a
federal grand jury returned a one-count indictment on March 25,
1997, charging LaBare with being a felon in possession of
ammunition.  18 U.S.C. � 922(g).  Thereafter, LaBare moved to
suppress the testimony of Mollo and Chaloux, and a hearing on the
motion was held before a magistrate judge on September 4-5, 1997. 
LaBare argued that Mollo and Chaloux acted as agents of the
government, that they "deliberately elicited" information from
LaBare about the crime with which he had been charged, that these
interrogations occurred outside the presence of LaBare's counsel,
and that they therefore violated his Sixth Amendment right to
counsel's assistance.
  After hearing testimony from another prisoner offered by
LaBare and testimony from Mollo, Chaloux, and several government
agents who had interviewed them, the magistrate judge recommended
that the motion to suppress be denied.  The district court largely
upheld the magistrate judge save that the district court suppressed
statements made by LaBare to Chaloux after March 11, 1997; the
court found that at a March 11 meeting with the government Chaloux
had been instructed as to how to glean information from LaBare
about the Warren shooting, and that Chaloux's follow-up questions
to LaBare (even though contrary to instructions) amounted to
forbidden interrogation.
  LaBare was tried by a jury on the federal charge in
December 1997.  The government's case included testimony from Lorie
Fournier, who had been LaBare's girlfriend at the time of the
Warren shooting.  She testified, among other things, that on the
evening of the crime she and LaBare had been staying at a motel not
far from the crime scene; she also stated that when LaBare left the
room that evening he said he was going to find a friend who owed
him money; and, earlier that day, Fournier saw that LaBare was
carrying a gun in his pants.  Warren testified at trial that LaBare
was the man who had shot him.
  The government also offered testimony from two friends of
LaBare's, Gene and Norma Wood.  Norma testified that after the
crime LaBare told her he shot the taxi driver because he needed
money.  Norma's husband, Gene Wood, testified that LaBare had told
him he had a hat with a ponytail sewn in it; such a hat was found
in the car police recovered near the scene.  Gene Wood also
testified that LaBare told him of a plan to blackmail the cab
driver into not testifying against him.  Both Woods testified that
LaBare repeatedly asked them to provide a false alibi for him for
the evening of the Warren shooting.
  Joseph Chaloux testified that in conversations with
LaBare prior to March 11, 1997, LaBare told him that he was
involved with a shooting of a cab driver in Portland, and LaBare
asked Chaloux if he would accept $10,000 from LaBare to kill the
cab driver.  LaBare further stated that if he failed to find
someone willing to kill the driver, he would try to bribe the
driver not to testify against him.   Mollo testified that LaBare
had offered him money to get friends in a motorcycle gang to break
Fournier's legs as a warning not to testify, and LaBare further
told Mollo how he had stood over the cab driver and fired at him as
Warren pleaded for his life.
  The government also offered circumstantial evidence. 
Notably, Warren testified that the getaway car bore a temporary
license plate containing the number "2"; a Subaru purchased by
LaBare for Fournier was found a mile or so from the shooting with
just such a license plate.  Also, the police found several spent
small-caliber weapon shell casings in or near the taxi, and agents
recovered from LaBare and Fournier's home a magazine for a weapon
of the same caliber.  According to Chaloux's testimony, LaBare said
that he had used a small-caliber weapon to shoot a cab driver in
Portland.
  In LaBare's favor, Lorie Fournier admitted that she was
a manic depressive and had been in a bad state at the motel. 
Warren conceded that he had picked out two men from police
photographs after he was shot and, though one was LaBare, Warren
had said that the other was more likely the shooter.  Chaloux and
Mollo, of course, had criminal records and, being incarcerated, had
an obvious self-interest in pleasing the prosecutors.   And while
the LaBare-Fournier car was found a mile away from the robbery,
Warren said that the car he saw at the scene was a different color.
  LaBare did not testify at trial but offered two witnesses
in addition to the impeachment evidence already set forth.  One,
his prison mate Cavallaro, said he had never heard LaBare admit to
the shooting or threaten Fournier.  And Kenneth Meader, another
prisoner, said that Chaloux had told him that Chaloux knew of a way
to beat the system (the possible implication being that Chaloux
might lie to get out of jail).  Although the court then refused to
allow Meader to expand upon this point, Meader's initial statement
was never struck from the record.
  The jury deliberated for about four hours and then found
LaBare guilty of the felon-in-possession offense.  Thereafter,
based on computations described below, the district court sentenced
LaBare to 327 months in prison.  After the federal trial but before
sentencing, LaBare was convicted in state court for robbery and
attempted murder for the Warren shooting and sentenced to 40 years
in state prison.  At the federal sentencing, the district judge
rejected LaBare's request that the federal sentence be made
expressly concurrent with the state sentence.  LaBare now appeals
from both his conviction and his sentence.
  LaBare's challenge to his conviction rests on a single
claim: that the testimony of Mollo and Chaloux should have been
suppressed in its entirety because it was obtained in violation of
LaBare's right to counsel.  The basis for this claim is a line of
cases beginning with Massiah v. United States, 377 U.S. 201 (1964),
holding that once a criminal proceeding has been initiated and a
defendant's right to counsel has attached, the government may not
"deliberately elicit" statements from the defendant, in the absence
of counsel and without a proper waiver. And, with limited
exceptions, e.g., Michigan v. Harvey, 494 U.S. 344 (1990) (use for
impeachment allowed), the government may not introduce against the
defendant incriminating statements procured in violation of
Massiah.  See Michigan v. Jackson, 475 U.S. 625, 629-30 (1980).
  The Supreme Court has made clear that for Massiah
purposes the right to counsel attaches when "adversary judicial
criminal proceedings" have commenced against an accused, "whether
by way of formal charge, preliminary hearing, indictment,
information, or arraignment."  United States v. Gouveia, 467 U.S.
180, 188 (1984) (quoting Kirby v. Illinois,  406 U.S. 682, 688-89
(1972)).  In this case, adversary proceedings against LaBare began
no later than February 28, 1997, when the federal criminal
complaint was filed against him for the felon-in-possession charge
ancillary to the Warren crime.  The jailhouse conversations with
which we are concerned all occurred after that date.
  The government assumes that the right to counsel attached
but argues that neither Mollo nor Chaloux were acting as the
government's agents in any interrogation of LaBare; and, says the
government, neither prisoner actively elicited information from
LaBare.  Massiah applies only to interrogation by the government or
someone acting on its behalf, Kuhlmann v. Wilson, 477 U.S. 436, 459
(1986); even a government agent can testify as to what the
defendant said to him so long as the agent did not actively elicit
the information.  Id.  But while these legal premises are clear,
their application to this case is less than straightforward.
  Mollo's testimony presents the greater difficulty for the
government.  Mollo, being held on a federal charge in Kennebec
County Jail, was interviewed on February 28, 1997, by federal
authorities to arrange for Mollo's general cooperation.  In this
discussion, the Assistant U.S. Attorney told Mollo that he was not
to question other inmates but only to report what they volunteered;
and Mollo was also advised that he was not a government agent.
Mollo says that at this time he did not know LaBare; and LaBare's
name was not mentioned in the interview.  On March 11, Mollo
entered a plea agreement with the government, promising to disclose
"all that he knows or has heard about violations of federal and
state law."
  Mollo apparently met LaBare after Mollo's transfer to the
latter's cellblock in March 1997; during the next several weeks or
so, LaBare (according to Mollo) made a number of statements
incriminating LaBare in the Warren robbery and shooting.  On March
31, Mollo wrote to the Assistant U.S. Attorney to say that he had
information about LaBare; he was interviewed on April 11, making
the first of several reports about what LaBare had said or was
continuing to say.  Ultimately, Mollo testified at LaBare's trial
as to LaBare's admissions relating to the crime and also LaBare's
attempts to procure help in silencing witnesses against him.
  The magistrate judge found that all of the statements
made by LaBare to Mollo occurred before Mollo's meeting with the
Assistant U.S. Attorney on April 11, that prior to this point the
government had never directed Mollo to focus upon LaBare in any
way, and that no evidence showed that the government had
deliberately placed Mollo in proximity to LaBare.  The magistrate
judge also suggested that whatever encouragement Mollo had given to
LaBare to discuss his case did not amount to interrogation.  The
district judge sustained the magistrate judge's recommendation as
to Mollo without separate discussion, and LaBare now claims this to
be error.
  From February 28, 1997, onward, the government encouraged
Mollo to collect information volunteered by inmates, but not until
April 11, 1997, did the government focus Mollo's attention on
LaBare; by then Mollo had already collected the information he
provided at trial.  At least two circuits have regarded this lack
of governmental focus on the defendant as precluding a successful
Massiah objection to information collected by the prisoner-witness
on his own; two other circuits, by contrast, treat the lack of
focus on the defendant merely as one element in the Massiah
equation.  The division in the circuits is not surprising, for
Massiah was never a precise formula and later Supreme Court rulings
waver in their emphases.
  On strict agency principles, it could be argued that
Mollo became a government "agent" on February 28, 1997, when he
agreed to report on the future crime-related statements of fellow
prisoners and accepted direction as to how to perform this task
(e.g., "don't ask questions"), since an agent is one who acts for
another by agreement and whose work is subject to control by the
principal.  Restatement (Second) of Agency �� 1, 14 (1958).  And
under traditional agency rules, it might not matter that the
Assistant U.S. Attorney told Mollo that he was not an agent--which
is relevant but not controlling, id. � 1 and comment (b)--or that
Mollo exceeded his instructions in a predictable manner, as agents
often do, id. � 230 and comment (b).  But common law agency rules
are merely an available and not a controlling touchstone.
  In the Massiah cases, the Supreme Court has sought to
draw a line between government-instigated interrogations of a
defendant in the absence of his lawyer and other means by which the
government might come into possession of admissions by the
defendant.  Where the government asks a jail mate to report
incriminating statements by anyone but has in no way focused the
jail mate's attention on an individual defendant, it is a stretch
to describe the jail mate's inquiries of the defendant as
"government interrogation."  Thus, we think the approach taken by
the Second and Eighth Circuits, see note 2, above, is faithful to
the main thrust of the Massiah precedents.
  Further, the Second and Eighth Circuit approach gives
better guidance to law enforcement authorities on an issue that has
no single "right" answer.  Our concern with the Third Circuit
approach--in which the lack of focus on the defendant is simply "a"
factor--is that it leaves the authorities, and the lower courts,
somewhat in the dark as to just how to decide such cases.  The
government enlists jailhouse informers often enough that it is
better to have clear ground rules for what they can or cannot do. 
Where a jail mate simply agrees to report whatever he learns about
crimes from other inmates in general, we think there is not enough
to trigger Massiah.  Since Mollo's courtroom testimony as to LaBare
was all based upon what Mollo learned before April 11, 1997, when
the government revealed to Mollo a special interest in LaBare,
Massiah was not violated even if Mollo's follow-up questions went
beyond mere listening.
  This may be a close call as to Mollo, given conflicting 
precedent.  It is therefore useful to add that no such doubt
infects the testimony of Chaloux.  Chaloux had not yet received any
instructions from government officials and was not even arguably a
government agent when he collected the only statements by LaBare
that the district court admitted.   And, taking Chaloux's testimony
together with the rest of the evidence, admitting Mollo's
testimony--if error at all--would be harmless error even under the
"beyond a reasonable doubt" standard applied to constitutional
errors.  Milton v. Wainwright, 407 U.S. 371, 377-78 (1972); Chapman
v. California, 386 U.S. 18, 24 (1967).  Why this is so can be
quickly summarized.
  In describing the government's evidence against LaBare at
the outset of the opinion, we have stressed the high points: that
LaBare left on the day of the robbery with a gun, saying that he
planned to collect some money; that the victim unequivocally
identified LaBare at trial as the culprit; that two friends of
LaBare (the Woods) said that LaBare had essentially confessed to
them and tried to obtain false alibi evidence from them; that
LaBare had confessed his involvement to Chaloux and sought
Chaloux's aid in silencing his then-girlfriend, Fournier; and that
some pieces of circumstantial evidence (a gun magazine in LaBare
and Fournier's house) were consistent with LaBare's involvement.
  At the same time, the government's case was admittedly
weakened by shortcomings in the testimony of Fournier (her mental
state) and Warren (his equivocal identifications of the culprit on
two occasions prior to trial and his identification of a car of a
different color than the girlfriend's Subaru seen leaving the scene
of the robbery and shooting).  And Chaloux, of course, had ample
reason to fabricate, although some of the detail may sound
convincing.  But the Woods were not effectively impeached, and the
cumulative weight even of the shakier testimony (Fournier, Warren,
and Chaloux) is considerable.  In the end, multiple sources show
LaBare's involvement in the crime and multiple sources confirm his
efforts to cover it up or to suppress evidence.  His conviction was
therefore certain enough to make the inclusion of Mollo's testimony
harmless.
  LaBare's remaining issues on appeal both concern his
sentence.  That sentence was 327 months, the top of the range
prescribed by the guidelines for a defendant with an offense level
of 34 and a criminal history category of VI (the highest category). 
Properly, LaBare does not challenge his offense level.  Here, the
court found that the most closely analogous guideline describing
LaBare's "other felony offense" was that for assault with intent to
commit murder, U.S.S.G. � 2A2.1 (base offense level of 28), and
two further adjustments, id. �� 2A2(b)(1), � 3C1.1, brought the
offense level to 34.
  The criminal history category is a different matter.  By
the time of LaBare's sentencing, he had also been convicted of the
state robbery and attempted murder charges in the Warren shooting. 
The presentence report calculated LaBare's criminal history
category on two different bases.  First, it found that his prior
criminal history points computed under chapter 4A added up to 13
points, which is the minimum amount needed for category VI status. 
Separately, the report found that LaBare had three convictions for
crimes of violence prior to his commission of the felon-in-
possession offense, which automatically placed him in category VI
as an armed career criminal.  18 U.S.C. � 924(e); U.S.S.G. � 4B1.4. 
The district court found that both grounds independently supported
the category VI designation.
  The focus of the dispute here is whether a specific prior
conviction of LaBare may be counted against him on either basis of
calculation.  Among his various convictions described in the
presentence report was a 1992 conviction and three-year sentence in
Maine state court for the crime of terrorizing with a dangerous
weapon.  Unless this conviction is counted, LaBare has less than
the 13 points needed for category VI under chapter 4A; and without
it he has only two other violent felony convictions committed prior
to the ammunition offense.
  LaBare argued in the district court, and argues again
here, that this 1992 conviction was obtained in violation of his
right to counsel and therefore should not be considered for the
purpose of sentencing.  See Custis v. United States, 511 U.S. 485,
487 (1994); United States v. Cordero, 42 F.3d 697, 701-02 (1st Cir.
1994).  What happened at LaBare's trial for terrorizing is not
disputed.  LaBare had been assigned counsel (Joanne Kroll) to
represent him at that trial.  Part way through the trial, he asked
the trial judge for a continuance to obtain new counsel because of
a disagreement with Kroll.  The trial judge made an effort to
obtain substitute counsel without delaying the trial but, when this
failed, the trial judge gave LaBare the choice between proceeding
pro se or continuing with Kroll, whom the court found to be
providing proper assistance.
  LaBare, insisting that he wanted new counsel, refused
Kroll's further representation (she became his standby counsel) and
began to represent himself--despite the trial judge's warning to
LaBare "that even a lawyer has a fool for a client if he chooses to
represent himself."  After some time, LaBare declared that he was
not qualified and did not want to represent himself.  The trial
judge asked Kroll if she was willing to resume full representation,
but she declined; the judge thereupon told LaBare that he was to
continue representing himself, using Kroll as standby counsel if he
wanted advice.
  Against this background, the district court concluded
that LaBare had not been denied his right to counsel in the state
trial.  LaBare now attacks this conclusion on the double ground
that his decision to proceed pro se was neither voluntary nor
intelligent (i.e., informed).  The first branch of this argument is
plainly without merit.  A mid-trial request to change counsel,
where there is no showing that existing counsel is ineffective, is
a matter for the trial court's discretion.  United States v.
Pierce, 60 F.3d 886, 890-92 (1st Cir. 1995), cert. denied, 518 U.S.
1033 (1996).  Since LaBare was free to continue with Kroll, his
decision to represent himself was as voluntary as it needs to be. 
See United States v. Kneeland, 148 F.3d 6, 11-12 (1st Cir. 1998);
Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976).
  The more potent claim made by LaBare is that he was not
adequately warned of the dangers of self-representation.  This may
at first appear a peculiar claim: after all, LaBare was clearly
warned that he would be "a fool" to represent himself, and he
nevertheless insisted that he would represent himself rather than
continue with competent counsel already representing him. 
Nevertheless, a body of precedent has been built around the
requirement that a waiver of counsel under the Sixth Amendment be
not only voluntary--as LaBare's was--but also intelligent.  Faretta
v. California, 422 U.S. 806, 835 (1975); Tuitt v. Fair, 822 F.2d
166, 176 (1st Cir.), cert. denied, 484 U.S. 945 (1987). 
  According to Faretta, a defendant "should be made aware
of the dangers and disadvantages of self-representation, so that
the record will establish that 'he knows what he is doing and his
choice is made with eyes wide open.'"  Faretta, 422 U.S. at 835
(quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279
(1942)).  Further, this court has said in Maynard that for a waiver
to be intelligent, a defendant must have
    a sense of the magnitude of the undertaking
  and the 'disadvantages of self-
  representation,' [Faretta, 422 U.S. at 835],
  an awareness that there are technical rules
  governing the conduct of a trial, and that
  presenting a defense is not a simple matter of
  telling one's story. . . .  In addition, the
  accused should have a general appreciation of
  the seriousness of the charge and of the
  penalties [to which he may be exposed] . . . .

545 F.2d at 279.  But Maynard also said that a waiver need not be
based on "explicit bench warnings or a colloquy on the record," id.
at 277, and later decisions have upheld waivers where the defendant
had enough training or experience to know that he faced serious
charges and that a trial is not merely "a simple matter of telling
one's story."
  LaBare was not a novice: his trial for terrorizing with
a dangerous weapon occurred in 1992 when he was 37 years old and,
prior to that trial, LaBare had already been convicted after trial
for conveying a weapon into a federal penal facility (at age 20),
armed robbery (at age 23), and theft (at age 36).  Absent unusual
circumstances, a defendant who has previously sat through criminal
trials of his own has to know that trying a case involves examining
witnesses, making objections, and observing rules of procedure and
evidence; and a defendant who has served time for serious prior
offenses must know that a new charge of terrorizing with a
dangerous weapon (two counts) and assault (one count) are serious
matters and could involve new imprisonment.  In deciding to
represent himself, LaBare made a dubious choice, but it was not an
ignorant choice.
  Having validly decided to represent himself, it is also
clear that later in the trial LaBare changed his mind.  There may
be cases where, at least when the change of mind occurs well before
trial, a defendant is entitled to a second chance.  Cf. United
States v. Proctor, 166 F.3d 396 (1st Cir. 1999).  But LaBare had no
right to a new appointment of counsel in mid-trial and, indeed, did
not ask for one: his later request was for an outright mistrial. 
We thus join in the view of the district court that LaBare was not
denied his Sixth Amendment rights--a judgment shared by the Maine
Judicial Supreme Court which rejected LaBare's similar attack on
direct appeal.  Maine v. LaBare, 637 A.2d 854 (Me. 1994).
  The final issue originally raised by LaBare on this
appeal was whether the district court erred in refusing to decide
whether LaBare's federal sentence should run concurrently (as
LaBare wished) or consecutively to LaBare's state sentence for
robbery and attempted murder of Warren.  This state sentence,
nominally 40 years, had already been imposed prior to the federal
sentencing in this case.  When asked by LaBare to make the federal
sentence run concurrently, the district court replied that this "is
a matter that is not for me to decide, it's for the general
sentencing law and the Bureau of Prisons."  LaBare says that this
issue is now moot, because the state court subsequently amended its
judgment to make the state sentence run concurrently with the
federal sentence.
  Nevertheless, we think it useful to point out that LaBare
was entitled to a ruling by the district court.  Although at one
time the Bureau of Prisons had independent authority to begin a
federal sentence before a defendant was released from state prison,
U.S.S.G. app. C, amend. 535, at 371, the guidelines now give judges
specific instructions regarding treatment of a defendant who is
federally sentenced while already "subject to an undischarged term
of imprisonment."  Id. � 5G1.3.  In certain circumstances, the new
sentence must be consecutive; in others, it must be concurrent; and
in still others, the district judge may do either, or may make the
sentence partly concurrent, as needed to achieve "a reasonable
punishment."  Id. 
  LaBare says he was entitled to a concurrent sentence. 
See U.S.S.G. � 5G1.3(b).  The government thinks that the district
court could have made the sentence consecutive, see id. � 5G1.3(c),
but admits that a determination by the court was required.  Since
both agree that the new state court judgment satisfies LaBare's
demand for a concurrent sentence, we do not pursue the matter.
  Affirmed.
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