NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0532n.06 F A I E

No. 13-5870 rjJ 2 12014

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT PEBORAH S. HUNT, Clerk

PERRY AVRAM MARCH, )

) Petitioner-Appellant, ) ON APPEAL FROM THE

) UNITED STATES DISTRICT

v. ) COURT FOR THE MIDDLE

) DISTRICT OF TENNESSEE

GERALD MCALLISTER, WARDEN, )

) Respondent-Appellee. )

BEFORE: KEITH, CLAY, and McKEAGUE, Circuit Judges

DAMON J. KEITH, Circuit Judge. On August 17, 2006, in the Criminal Court for

Davidson County, Tennessee, Perry A. March was convicted of murdering his wife Janet nearly

a decade prior. In this habeas appeal, Petitioner March, initially proceeding pro Se, and later

retaining counsel, makes three challenges to the admission of certain of his incriminating

statements on grounds that they were obtained in violation of the Fifth and Sixth Amendments.

On two of his three claims, we assume without deciding the existence of constitutional error,

only to conclude that in light of the significant evidence adduced against March, any errors

would be harmless. As to March’s third challenge, although the facts present a close legal

question, we are unable to conclude that the Tennessee appellate court unreasonably applied

federal law, and accordingly we reject this claim as well. Accordingly, we AFFIRM the district

court’s denial of March’s writ of habeas corpus.
March v. McAllister, 13-58 70

I.

March and his wife were married in 1987 and thereafter took up residence in Nashville.

March enrolled at Vanderbilt Law School, with full financial support from the victim’s parents

(the “Levines”), and was eventually employed as an attorney at a Nashville law firm. The couple

undertook marriage counseling in 1991 or 1992, and the record reflects that the two were

experiencing marital problems thereafter. March began to see a psychiatrist, whose sessions into

which the victim joined in 1996. The victim’s mother, Ms. Levine, testified that at that point the

situation had seriously deteriorated. March confided in her his fears that a divorce was

imminent. Eventually, the situation was so bad in 1996 that the victim demanded that March

find alternative housing. 1

Ms. Levine had planned on accompanying the victim to see a divorce lawyer on August

16, 1996. However, around midnight on August 15, 1996, March called the Levines to inform

them that the victim had left the house after an argument. The victim was never seen again. The

events that followed pertaining to the victim’s disappearance were described as highly

uncharacteristic. A non-exhaustive list of unusual circumstances include: abnormalities as to the

victim’s computer usage; handwriting; credit card usage; the lack of an itinerary and otherwise

detailed instructions as to her absence; the victim’s repeated absence away from her children, for

whom she had made birthday and school plans; and vehicular inconsistences. In short, the trial

testimony established that a permanent change of scenery was antithetical of the victim’s habits,

customs, and ethos.

Ms. Levine testified that March stayed in a hotel for approximately six to eight nights before the victim’s

disappearance.

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Memorial services were eventually held for the victim, which March did not attend.

March initially moved the children to Chicago, and then in May 1999, moved the family to

Mexico. With regards to evidence as it relates to March, much of the testimony established at

trial detailed him as volatile and hostile, making sundry threats to the victim’s friends, family

members, and confidants, as well as exhibiting similar behavior towards investigators, police

officers, and psychiatrists. March’s demeanor, especially when approached by authority figures,

is detailed as having been frequently impatient, frustrated, and irritated. Certain anomalies and

facts inconsistent with the victim’s purported voluntary disappearance include, but are not

limited to: the house having been cleaned the morning after the incident but before the

housekeeper arrived; March’s presence at 1:00 am the night of the incident walking a bicycle

down a parking lot where the victim’s car was later discovered; ripping out his computer’s hard

drive; turning white and shivering when the police arrived; commenting that “Fucking Janet

ruined my life”; purchasing new tires and wiping disinfectant in his car; asking victim’s long

time friend Diane Saks if she could believe a scenario in which he would put the victim in the

back of his vehicle, leave the children home alone while they were sleeping and then return and

pretend “like nothing ever happened”; penning a manuscript portraying the murder of a young

woman; telling Mexican businessmen that if he did not help him “he would do away with us the

way he did with his wife”; and the victim’s discovery of evidence of a sexual harassment suit

filed against March by a paralegal at his law firm, as well as evidence that March’s settlement of

that suit had rendered March in arrears.

Arthur March, the Defendant’s father, played an instrumental role in both the victim’s

disappearance and the subsequent plot to murder the Levines. He was deposed, and the

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corresponding videotape of the deposition was played before the jury. Arthur March arrived in

Nashville three to four days after the victim’s disappearance. He testified that his son admitted

to him that the victim had died in an “accident” after an argument. March asked his father to

dispose of his computer’s hard drive, which he did. March also asked his father to dispose of the

victim’s remains, which he also did: after following March’s instructions, his father bought a

shovel and Clorox bleach and, after following directions provided to him, unearthed a large leaf

bag containing the victim’s remains located in a wooded area. Arthur March stated that he saw

certain bones in the bag and that the bag weighed approximately fifty or sixty pounds. March and

his father drove northwards to Chicago, where Arthur March disposed of the victim’s body and

clothes underneath brush.

March moved to Mexico, and, after nine years on the lam, was arrested there on August

3, 2005. March was transported to a jail in Los Angeles, California, where he waived

extradition. Detectives Pat Postiglione and Bill Pridemore of the Metro Nashville Police

Department escorted March from Los Angeles to Nashville via plane on August 12, 2005.

Detective Postiglione, to whom March spoke to most frequently, informed March that he

understood that Defendant was an attorney and that he had no intention of interrogating him.

Although Postiglione conveyed that March was under no obligation to speak to him, Postiglione

did not provide March a Miranda warning. He also said that he would “certainly listen” and

relay whatever March had to say to the appropriate authorities. Postiglione testified that he was

aware that March was represented by counsel.

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March v. McAllister, 13-58 70

Generally, March indicated a willingness to plead guilty to murder, but was persistently

inquisitive with Postiglione. Postiglione, although generally reserved in conversation, 2held

steadfast in reminding March he did not have the authority to negotiate a plea deal, made the

following statements during the flight to Nashville:

1) “[S]ometimes things happen that some people may perceive one way when, in fact,

it is something totally different. I used as an example—a moment of anger instantly

regretted. I gave the scenario of someone killing someone else by accident compared

to walking up behind someone and shooting them in the back ofthe head—and said

that there is a stark difference between the two”; and 2) in response to March’s

statement that he intensely loved the victim, “sometimes people hurt people they love

in a moment of anger.”

March was held at the Davidson County Criminal Justice Center, where he met Russell

Nathaniel Farris, an inmate who was unable to make bail. March was under the mistaken

assumption that Farris was imprisoned for first-degree murder—accordingly, March solicited

Farris’ help in a plot to murder the Levines. In return, March offered the possibility that he

would raise the money to secure Farris’ bond. March and Farris discussed the murder plot every

day for about one month.

Farris grew concerned about his role in the murder plot, the details of which had grown

in-depth and particular. In September 2005, Farris contacted his mother and his attorneys about

the plot in an attempt to disassociate himself with the murder plot. Eventually, the details of the

plot were forwarded to Sergeant Postiglione. Postiglione met with Farris on October 4, 2005 at

the District Attorney’s office, at which point Farris officially withdrew from the conspiracy and

agreed to participate in a jailhouse investigation. Farris consented to the placement of a digital

2 further told him that we would not pressure him in any way or try to interview him or get any sort of a

statement; but I invited any questions or comments he may have, to feel free to share that with us, if he wanted to.”

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recorder in Farris’ cell. At the behest of the authorities, Farris returned to his cell and informed

March that he would be able to make bond. March began to finalize the plan to kill the Levines,

involving an impressively elaborate plan in which Farris was to meet with Arthur March who

would help facilitate the hit and then provide safe haven in Mexico. Farris telephoned March

multiple times after his release in an attempt to finalize the plot. Eventually Arthur March was

arrested, and brought Postiglione to the location where the victim was buried, though the remains

were never found.

While still incarcerated, at different times, March was housed in a cell adjacent to the cell

of Cornelius King and Reno Martin. While he spoke to King, he detailed the circumstances

preceding the murder. According to King, March stated that there was an argument, that the

victim wanted a divorce, and that March was “not going to allow that.” A physical altercation

ensued and March struck the victim over the head with a wrench. In a conversation with

Martin—with whom March was friends—March discussed his ongoing custody battle with the

Levines. March said “that it should have been them that [I] took care of instead of. . .“ at which

point March “went completely pale,” and “lost his expression on his face.”

On August 17, 2006, after a nine day trial, March was convicted by a jury of seconddegree murder, destruction of evidence, and abuse of a corpse. In a separate case arising out of

March’s attempts to kill the victim’s parents—thereby precluding the admission of their

potentially damaging testimony—March was also convicted of conspiracy to commit first-degree

murder. Combined, March was sentenced to a total of fifty-six years’ imprisonment.

March filed his pro se petition for the writ of habeas corpus in the Eastern District of

Tennessee on February 3, 2012. The case was transferred to the Middle District of Tennessee,

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March v. McAllister, 13-58 70

which denied his habeas petition in a forty-eight page Memorandum Opinion issued on June 19,

2013. March v. Sexton, 3:12-CV-272, 2013 WL 3147222 (M.D. Tenn. June 19, 2013).

Nevertheless, the district court granted a Certificate of Appealability to each of his claims

addressed in his petition. March appeals.

II.

We review the District Court’s decision to dismiss the writ of habeas corpus de novo.

Ruimveld v, Burkett, 404 F.3d 1006, 1010 (6th Cir. 2005). Because March appeals from a state

court proceeding, his petition is subject to the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) and the “Supreme Court opinions interpreting it.” Jones v. Bagley, 696 F.3d

475, 482 (6th Cir. 2012). The AEDPA standard is “highly deferential.” Cullen v. Pinholster,

131 S.Ct. 1388, 1398 (2011)reh’gdenied, 131 S. Ct. 2951 (U.S. 2011).

The deferential standard is formidable. Under the AEDPA, we may not grant a habeas

petition unless the state court decision “(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

proceeding.” 28 U.S.C. § 2254(d).

A state court decision is contrary to clearly established federal law if the state court

applies a rule that contradicts the governing law set forth by the United States Supreme Court.

Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision will also be contrary to

clearly established federal law if the state court confronts a set of facts that are materially

indistinguishable from a decision of the United States Supreme Court and nevertheless arrives at

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March v. McAllister, 13-58 70

a result different from that decision. Id. at 406. A state court decision unreasonably applies

federal law “if the state court identifies the correct governing legal principle from the Supreme

Court’s decisions but unreasonably applies that principle to the facts.” Id. at 407-08. A federal

court making the “unreasonable application” inquiry should ask whether the state court’s

application of clearly established federal law was “objectively unreasonable.” Id. at 409. To

obtain relief, “a habeas petitioner must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.” Bagley,

696 F.3d at 483 (internal quotations and citations omitted).

III.

A. The In-Flight Statements

March challenges the introduction of statements he made during his post-arrest flight

from Los Angeles to Nashville on August 12, 2005. March argues that the introduction of this

evidence violates both his Fifth Amendment privilege against self-incrimination, as per Miranda

v. Arizona, 384 U.S. 436 (1966), and his Sixth Amendment right to counsel under Massiah v.

United States, 377 U.S. 201 (1964). In light of the significant evidence of guilt adduced against

March at trial, we assume without deciding that the admission of these statements was

constitutional error. 3

We find the following statements by Detective Postiglione to be the most troubling: a) “[S]ometimes

things happen that some people may perceive one way when, in fact, it is something totally different. I used as an

example—a moment of anger instantly regretted. I gave the scenario ofsomeone killing someone else by accident

compared to walking up behind someone and shooting them in the back of the head—and said that there is a stark

difference between the two”; and b) in response to March’s statement that he intensely loved Janet, “sometimes

people hurt people they love in a moment of anger.” However, because we hold that any error was harmless, we

need not determine whether the statements constituted functional interrogation.

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Under Brecht v. Abramhamson, error is not harmless in a habeas case when it had

substantial and injurious effect or influence in determining the jury’s verdict. 507 U.S. 619, 637

(1993); see Fry v. Filler, 551 U.S. 112, 120 (2007) (adopting Brecht standard and eschewing the

“harmless beyond reasonable doubt” standard). “Under this standard, habeas petitioners may

obtain plenary review of their constitutional claims, but they are not entitled to habeas relief

based on trial error unless they can establish that it resulted in actual prejudice.” Brecht, 507

U.S. at 637 (internal quotations omitted). The burden for showing an error to be harmless is on

the government. See O’Neai v. McAninch, 513 U.S. 432, 436 (1995); Ruelas v. Wolfenbarger,

580 F.3d 403, 413 (6th Cir. 2009). Thus, we must decide whether the admission of the disputed

statements subjected March to actual prejudice in his second-degree murder conviction.

In Tennessee, second degree murder is defined as a “knowing killing of another.” Tenn.

Code Ann. § 39—13—210(a)(1). Knowingly “means that a person acts with an awareness that

his. . . conduct is reasonably certain to cause the death of the alleged victim.” State v. Page, 81

S.W.3d 781, 788 (Tenn. Crim. App. 2002); see also T.P.I.-Crim. 7.05(a) (7th ed. 2002).

Significant evidence exists which would support a conviction of second-degree murder as

defined by the Tennessee statute. We emphasize that a) March’s statement that the victim died

in an “accident” after an argument; b) Arthur March’s destruction of the computer hard-drive at

his son’s request; c) Arthur March’s disposal of the victim’s remains; 4d) March’s admission that

Arthur March testified via deposition that he saw some of the victim’s bones in the leaf bag and that the

bag weighed approximately fifty or sixty pounds. At trial, the government’s expert testified that, under the

circumstances in this case, the victim’s skeletal remains would weigh approximately fifteen pounds. March asserts

that Arthur March’s testimony violates the “physical facts rule,” which states that the testimony of a witness that is

opposed to the laws of nature or which clearly conflicts with principles of science cannot be given any probative

value by a jury. See Harris v. General Motors Corp., 201 F.3d 800, 803 (6th Cir. 2000). “In examining a claim of

insufficiency of evidence in habeas corpus, a federal court must presume that the jury’s findings in evaluating the

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March v. McAllister, 13-58 70

he murdered the victim to Reno Martin, Cornelius King, and Jose Pulido; and e) March’s

statement to the Mexican businessmen that he would “do away with them the way he did with

his wife,” concretely support a finding that the trial evidence supported a murder conviction

against March.

The significant and extensive background evidence illustrating discontent between March

and the victim, particularly the evidence establishing that the victim had unearthed information

about his sexual harassment against Leigh Reames, as well as evidence of the victim’s laundry

list of reasons in which March had mistreated her, establishes that the act was not an accident. In

reaching this conclusion, we also rely on the numerous inconsistencies and abnormalities in the

victim’s disappearance and March’s behavior following the crime, the sheer multitudes of which

preclude an exhaustive list. Statements such as “Fucking Janet ruined my life,” and the

hypothetical question posed to the victim’s long-time friend—whether could she believe a

scenario in which he would put the victim in the back of his vehicle, leave the children home

credibility of the witnesses is correct and may ignore the testimony only when it finds it to be ‘inherently

incredible.” Malcum v. Burt, 276 F.Supp.2d 664, 686 (E.D. Mich. 2003).

We first observe that at trial, March did not move to strike Arthur March’s testimony when it became

apparent that it was purportedly factually impossible. To preserve a claim of error in the admission of evidence, a

party must timely object to or move to strike the evidence. Fed. Rule Evid. 103(a)(1). Accordingly, we review the

admission of Arthur March’s testimony for plain error only. To establish plain error, Harris must show that an error

(1) occurred, (2) was plain, i.e. obvious or clear, (3) affected his substantial rights, and (4) seriously affected the

fairness, integrity, or public reputation ofthe judicial proceedings. United States v. Harris, 200 F. App’x 472, 490

(6th Cir. 2006). Although Arthur March’s approximation of the weight of the bag is belied by the expert witness, it

is entirely plausible that the skeletal remains were not the only tangible materials in the bag. Indeed, evidence was

established at trial which would tend to support a theory that the victim’s body was rolled into a rug or carpet,

thrown into the victim’s Jeep, and then discarded: 1) the day after the incident, Friday, August 16, 1996, March’s

son was seen was jumping on a rolled up oriental rug in the entry hall; 2) Ella Goldshmid, the March’s part-time

babysitter, testified that she had never seen the rug before, but saw it that morning blocking the path to the kitchen,

and never saw the rug again; and 3) Detectives found both carpet fibers and the victim’s hair samples inside the

Jeep’s trunk area. Any multitude of possibilities exists for the jury to conclude that the victim’s remains were not

the only tangible items in the bag. Thus, we do not find Arthur March’s statements to be “inherently incredible,”

Malcum, 276 F. Supp.2d at 686, nor do we find that the admission of his testimony was plainly erroneous.

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alone while they were sleeping and the return and pretend “like nothing ever happened,” are

especially indicative of guilt. March’s bizarre and apprehensive behavior when confronted by

the victim’s family members and authorities further support the jury’s verdict.

Another relevant consideration in Brecht was the infrequency or relative brevity of the

disputed testimony in relation to the length of the testimony in toto. 507 U.S. at 639. In Brecht,

“the State’s references to petitioner’s post-Miranda silence were infrequent, comprising less than

two pages of the 900—page trial transcript in this case.” Id. Here, Postiglione’s testimony on

direct examination regarding the petitioner’s statements comprised about three pages of an

approximately 2,500-page trial transcript over the course of a nine-day trial. Postiglione was but

one of dozens of witness to testify against March. We are firmly convinced that the relatively

brief testimony from Postiglione, amongst the great depths of incriminating evidence against

March, led to no actual prejudice against March. Indeed, this is not the case in which we are “in

virtual equipoise as to the harmlessness of the error,” 551 U.S. at 121 (quoting 0 ‘Neal, 513 U.S.

at 435 (1995)), but rather where, in reviewing habeas corpus matters, “we do not close our eyes

to the reality of overwhelming evidence of guilt.” Milton v. Wainwright, 407 U.S. 371, 377

(1972). Accordingly, we hold that any constitutional error would have been harmless in light of

the extensive evidence establishing March’s guilt. 3

B. The Jailhouse Conversations

March challenges the introduction of his jailhouse conversations with co-inmate

Nathaniel Farris, the details of which surrounded the plot to kill the Levines. Specifically, March

Although March alleges that the cumulative effect ofthe errors at trial rendered his trial fundamentally

unfair in violation of due process, he is without remedy. “The law ofthis Circuit is that cumulative error claims are

not cognizable on habeas because the Supreme Court has not spoken on this issue.” Williams v. Anderson, 460 F.3d

789, 816 (6th Cir. 2006); see also Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005).

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March v. McAllistei; 13-58 70

alleges that the government knowingly circumvented his Sixth Amendment right to counsel by

eliciting incrimination that was to be introduced in a criminal matter for which he was already

represented. The Tennessee appellate court disagreed. Relying on State v. Berry, 592 S.W.2d

553 (Tenn. 1980), McNeil v. Wisconsin, 501 U.S. 171 (1991), and Texas v. Cobb, 532 U.S. 162

(2001), the court held that under the “offense specific” doctrine, because the statements pertained

to a future, uncharged crime, the Sixth Amendment right to counsel did not attach. The district

court agreed.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his defence.” The right to counsel

safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding.

Maine v. Moulton, 474 U.S. 159, 169 (1985). Recognizing that the right to the assistance of

counsel is shaped by the need for the assistance of counsel, we have found that the right attaches

at earlier, “critical” stages in the criminal justice process “where the results might well settle the

accused’s fate and reduce the trial itself to a mere formality.” Id. at 170. Once judicial

proceedings have been initiated against the defendant, the right attaches, and the right to counsel

must be honored. Id. Where the defendant has been indicted and the case “involves

incriminating statements made by the accused to an undisclosed and undercover Government

informant while in custody and after indictment,” the right has attached. United States v. Henry,

447 U.S. 264, 269 (1980); see also Massiah, 377 U.S. at 206 (noting that the right must be

especially safeguarded where the defendant is unaware of the informant’s role as a government

agent). At the very least, “the prosecutor and police have an affirmative obligation not to act in a

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March v. McAllister, 13-58 70

manner that circumvents and thereby dilutes the protection afforded by the right to counsel.”

Moulton, 474 U.S. at 171.

March urges us to conclude that Maine v. Moulton, 474 U.S. 159, 171 (1985), is

“materially indistinguishable” from this case. Williams, 529 U.S. at 406. Although the facts are

somewhat similar, we cannot so conclude. In Moulton, the police sent a co-defendant turned

informant to elicit incriminating statements from the other co-defendant. The police did so with

express knowledge that the government agent and the defendant were to discuss both prior and

future crimes. The government introduced this testimony in the case which pertained to the prior

crime, for which the Sixth Amendment right had attached. The court held that the defendant’s

Sixth Amendment rights were violated pursuant to the elicitation of incriminating statements.

Critically, however, most of the testimony admitted at trial corresponded to the prior, already

charged offenses. In this case, Farris and March almost exclusively discussed the future plot to

kill the Levines, eluding discussion ofthe already-charged murder offense.

Nevertheless, Moulton made two important rulings. The first was the actual holding that,

“incriminating statements pertaining to pending charges are inadmissible at the trial of those

charges, notwithstanding the fact that the police were also investigating other crimes, if, in

obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing

the accused’s right to the assistance of counsel.” Id. at 180. The second was to reaffirm the

holding in Massiah that “the defendant’s own incriminating statements, obtained by federal

agents under the circumstances here disclosed, could not constitutionally be used by the

prosecution as evidence against him at his trial.” 377 U.S. at 207. Indeed, the Massiah Court

went on to hold that a defendant is denied “the basic protections of [the Sixth Amendment] when

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March v. McAllister, 13-58 70

there was used against him at his trial evidence of his own incriminating words, which federal

agents had deliberately elicited from him.” Id. at 206.

At first blush, it would seem that the Tennessee authorities violated Moulton on the

grounds that the State solicited “incriminating statements pertaining to pending charges

notwithstanding the fact that the police were also investigating other crimes.” Moulton, 474 U.S.

at 180. However, relying on the “offense specific” nature of the Sixth Amendment, the

Tennessee appellate court held that the State did not knowingly circumvent the accused’s right to

the assistance of counsel. State v. March, 395 S.W.3d 738, 779 (Tenn. Crim. App. 2011).

Indeed, the court clarified that “a defendant’s invocation of his or her right to counsel as to an

indicted offense is not an invocation of the right to counsel in future prosecutions.” Id. at 776;

see also McNeil, 501 U.S. at 176.

The cases which opine on the “offense specific” nature of the Sixth Amendment present

scenarios in which incriminating statements made with respect to future crimes are always

introduced in those corresponding future trials; no Supreme Court case exists with respect to

evidence of future crimes being used to assist in the conviction of past crimes, for which the

defendant’s right to counsel has already attached. Indeed in McNeil, the defendant, originally

held on armed robbery charges, was questioned about murder and burglary charges in a

completely different town. McNeil, 501 U.S. at 173-76. Evidence ofthese statements, obtained

in the absence of counsel, was admitted to help convict that defendant of the murder and

burglary charges, but was not specifically admitted to show his guilt in the original armed

robbery charges. Id. Thus, McNeil is inapposite.

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Texas v. Cobb is likewise unhelpful. In that case, the defendant confessed to burglarizing

the home of a woman and her infant daughter who, contemporaneous to the burglary, also went

missing. The defendant later confessed to murdering both the woman and her child in the process

of the burglary. The defendant was convicted of capital murder for murdering more than one

person in the course of a single criminal transaction. Id. at 166; see Tex. Penal Code. Ann. §

1 9.03(a)(7)(A)( 1994). The defendant contended that, as he was represented by counsel after the

burglary case, his Sixth Amendment right to counsel had attached, and thus any statements made

with respect to the double murder were inadmissible. Cobb is factually inapposite: there, the

defendant made incriminating statements as to a second, uncharged offense (murder), which

were then used against him in the trial of that second offense. The case sub judice concerns

statements about the second offense used against the defendant at the trial of the first offense, for

which the right has already attached. 6

Thus, the facts are neatly wedged between the principle that a) a person is “denied the

basic protections of [the Sixth Amendment’s] guarantee when there was used against him at his

trial evidence of his own incriminating words, which federal agents had deliberately elicited

from him after he had been indicted and in the absence of his counsel,” Massiah, 377 U.S. at

206; and b) the tenet that a defendant’s voluntary statements concerning a crime for which he

has not yet been charged are admissible at a subsequent trial of the inchoate offense. Cobb, 532

6 In addition to McNeil’s and Cobb’s factual dissimilarity, the Sixth Amendment’s “offense specific” nature

actually cuts in March’s favor. The Sixth Amendment gives a defendant the right “to rely on counsel as a ‘medium’

between him and the State.” Moulton, 474 U.S. at 176. McNeil and Cobb make clear that it is the first offense, and

not the second, uncharged offense for which the defendant may rely on counsel. As the facts in this case show,

March was unable to rely on counsel as a medium in his murder case if he was being induced to give incriminating

statements as to his murder case by a State authority; that he was being questioned on an unrelated offense is

inconsequential.

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U.S. at 173. The Supreme Court has not authored a case in which the government has

intentionally placed an agent to elicit incriminating testimony as to a future plot, but not past

actions, with the intention of using the future plot as evidence of a guilty mind. 7 Contra Maine

v. Moulton, 474 U.S. 159, 163-65 (1985) (police intentionally send co-defendant-turnedinformant to elicit information, both to discuss future plots but also “to discuss the charges for

which [the other co-defendant] were already under indictment.”).

In spite of McNeil and Cobb, we are unconvinced that the “offense specific” doctrine

limits the applicability of Massiah’s holding that “the defendant’s own incriminating statements,

obtained by federal agents under the circumstances here disclosed, could not constitutionally be

used by the prosecution as evidence against him at his trial,” 377 U.S. at 207, in this case. We

are aware of no precedent which distinguishes amongst elicited incriminating statements—

whether they pertain to a charged offense, to an uncharged offense, or to no offense whatsoever.

So long as the incriminatory statements are introduced in a matter in which the defendant’s right

to counsel has already attached, a violation occurs.

It was clear that questioning March about the plot to murder government witnesses

would result in March making incriminating statements as to the murder charge, for which he

was already represented. March had a right to counsel present as a medium if the government

The First Circuit has done so, however, in United States v. Bender, 221 F.3d 265 (1st Cir. 2000), a case

which provides nearly identical facts. According to that court: “Instead, the government contends, primarily, that,

since the incriminating statements concerned different and future crimes, unrelated, it says, to the pending charges,

the Sixth Amendment does not apply. We disagree. The statements were incriminating not only as to future crimes

(perjury, conspiracy to kidnap and murder) but also as to the pending charges. So long as the statements were

incriminating as to the pending charges and were deliberately elicited by government agents, they cannot

constitutionally be admitted in the trial of those charges.” Id. at 269. Indeed, as here, the First Circuit found that the

evidence of future malfeasance constituted strong evidence of a guilty mind at work. The court held that it was

obvious that the intentional elicitation of evidence of future related crimes, in the absence of counsel, was in clear

violation of the Sixth Amendment. Accord Mealer v. Jones, 741 F.2d 1451, 1453-55 (2d Cir. 1984). Bender, of

course, is a circuit case, and is thus impotent under the AEDPA framework.

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March v. McAllister, 13-58 70

planned on using the testimony in his murder case. Farris’ questions were likely to be

incriminating as to the pending charges, and, although they would be admissible at the second

prosecution for murder conspiracy, we conclude that using his statements to his original murder

case was a violation of his Sixth Amendment right to counsel. See Fellers v. United States, 540

U.S. 519, 524 (2004) (police are prohibited from the “deliberate elicitation” of information from

a represented defendant without a waiver of his right to counsel or his counsel’s consent).

We are compelled to comment on the issue in light of the possibility for abuse; we will

not undermine the right to have counsel as a medium between the defendant and the government.

Indeed, were we to find otherwise, State authorities could, through well-architected subterfuge,

elicit incriminating information from defendants under the pretext of conducting an investigation

into fabricated or trumped-up future charges. 8 Using this tactic to solicit evidence of a guilty

mind would befall many potential future defendants. We urge caution in similar cases to ensure

that government officials do not subvert “the basic dictates of fairness in the conduct of criminal

cases and the fundamental rights of persons charged with crime.” Massiah, 377 U.S. at 205.

Nevertheless, our review is not simply whether this was error, but, under AEDPA,

whether the case involved an unreasonable application of federal law. 28 U.S.C.A. § 2254(d)(l)

(An unreasonable application of federal law sufficient to support a writ of habeas corpus is

different from an incorrect application of federal law). To satisfy this standard, March must

show that the state court correctly identified the governing legal rule but applied it unreasonably

to the facts of his case, or that it either unreasonably extended or unreasonably refused to extend

8 We need look no further than the two-step interrogation employed in Missouri v. Seibert, 542 U.S. 600,

602 (2004) for an example of deliberate legal exploitation. (“[Ujnwarned interrogation was conducted in the station

house, and the questioning was systematic, exhaustive, and managed with psychological skill.”).

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March v. McAllister, 13-58 70

a legal principle from Supreme Court precedent to a new context. 28 U.S.C. § 2254(d); Sanborn

v. Parker, 629 F.3d 554, 564 (6th Cir. 2010). Indeed, this standard gives more deference to the

state court than would a “clear error” approach. Loclcyer v. Andrade, 538 U.S. 63, 75—76 (2003).

We disagree with the District Court’s conclusion that the Tennessee court applied the

correct legal rule—the governing law is not the McNeil-Cobb line of cases but rather Massiah,

and, to an extent, Moulton. However, we would be remiss to conclude that the debate is “beyond

any possibility for fairminded disagreement,” O’Neal v. Bagley, 728 F.3d 552 (6th Cir. 2013);

rather we think that a somewhat fair argument may be made to the contrary. Indeed, to extend

Massiah ‘s holding that the elicitation of information—irrespective of its pertinence to charged or

uncharged crimes—was called into question in the four-Justice Moulton dissent. 474 U.S. at 188

n. 3 (1985) (“The Court’s opinion seems to read Massiah as if it definitively addresses situations

where the police are investigating a separate crime.”). That the Supreme Court has not opined on

this unusual factual scenario almost ipso facto allows us to conclude that the state court did not

unreasonably err. Accordingly, even though we find that the Tennessee appellate court

incorrectly applied the right legal rule, with no Supreme Court case resolving this unsettled legal

quandary, we are unable to conclude that the court unreasonably applied clearly established

federal law. See Fleming v. Metrish, 556 F.3d 520, 527—28 (6th Cir. 2009) (“the fact that a

federal court might disagree with the [state court’s] application of [federal law] does not justify

the conclusion that the [state court] unreasonably applied the Supreme Court’s decision.”). As

such, we AFFIRM the district court’s denial of March’s writ of habeas corpus.

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