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July 19, 1982

Leon SCHWIMMER, Petitioner,
Thomas A. COUGHLIN, III, as Commissioner of Corrections of the State of New York, Respondent

The opinion of the court was delivered by: LASKER

On September 19, 1977, three men followed an Indian diamond merchant from the U. S. Customs House into a subway and robbed him of $ 150,000 worth of diamonds. The men were apprehended and one of them implicated petitioner, Leon Schwimmer. Having learned that the police sought his arrest, Schwimmer turned himself in to the Manhattan District Attorney's office. He was charged by felony complaint and released on $ 25,000 bail.

A few days later, an informant working undercover for the Special Operations Unit of the New York City Police Department *fn1" advised the Unit that Schwimmer had talked to him several months earlier about setting up a robbery of a diamond courier. The informant said that he thought that Schwimmer might be involved in the recent kidnapping of a diamond courier who was at that time the subject of considerable news coverage.

 The Unit authorized the informant to set up a meeting with Schwimmer, on the pretense that he was interested in a "partnership" for the purpose of stealing diamonds.

 The informant arranged a meeting with Schwimmer for October 18, 1977. Prior to the date of the meeting, the officer who had been assigned to the case, Joseph Coll, ran a background check on Schwimmer and discovered the complaint filed against Schwimmer in connection with the September 19th diamond robbery. The meeting was held as scheduled, and a diamond robbery was purportedly planned. During the course of the meeting, Schwimmer mentioned that he had committed the September 19th robbery. Unfortunately for Schwimmer, the meeting was tape recorded, and the portions of the discussion in which Schwimmer implicated himself in the September 19th robbery were introduced at the trial which was held on those charges. *fn2"

 Schwimmer was convicted of Second Degree Larceny on January 16, 1980. The conviction was affirmed by the Appellate Division, First Department, by an opinion dated December 10, 1981. The New York Court of Appeals denied leave to appeal.

 Schwimmer petitions for habeas corpus, contending that the state court's denial of his motion to suppress the tape recording of the October 18th meeting was a violation of his Sixth Amendment right to counsel. *fn3" The state answers that the right to counsel did not arise at the October 18th meeting because the conversation took place in the course of a good faith investigation with an objective independent of the pending charges, and because Schwimmer did not make the taped remarks as a result of interrogation, but rather volunteered the information. The state also argues that Schwimmer failed to exhaust his state remedies by failing to alert the state court to the federal nature of his claim.


 In order to have exhausted his state remedies, a petitioner must have complied with the "federal labelling requirement," Daye v. Attorney General, 663 F.2d 1155; that is, in his brief to the state appellate court, he must have "explicitly refer(red) to a federal constitutional standard." Id. at 1156. Schwimmer did not explicitly refer to the federal constitution, but he did cite to and quote from federal cases. (Brief to Appellate Division at 11, 12). Whether reliance on federal cases is sufficient to satisfy the federal labelling requirement is unclear; moreover, the status of the labelling requirement itself is uncertain-the Daye case was recently reheard by the Court of Appeals en banc. In our view, Schwimmer's quotation of Supreme Court cases sufficiently alerted the state court to the fact that he relied, in part, on the federal constitution. In any event, in view of the conclusion, infra, that the petition must be denied on the merits, it is unnecessary to determine whether petitioner's reference to reliance on federal cases was sufficient to give the state court a fair opportunity to adjudicate his claims and thereby constituted exhaustion of his state remedy.


 The analysis of the Sixth Amendment claim begins with a discussion of the seminal decision in Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). In Massiah, while the defendant was on bail, his co-defendant, in cooperation with the government, installed a hidden microphone in his automobile and then deliberately engaged Massiah in a conversation about the crime. The Supreme Court reversed Massiah's conviction, holding that the introduction of the taped conversation at Massiah's trial violated his right to the assistance of counsel.

 The Second Circuit has twice had occasion to consider the scope of Massiah's prohibition on admission of post-indictment statements made without the presence of counsel. In United States v. Garcia, 377 F.2d 321 (2d Cir. 1967), the court affirmed the introduction of a conversation between the defendant and an undercover agent who, not knowing of the defendant's pending indictment, asked him whether he had ever been in trouble with the police. The court concluded that:

"Massiah does not immunize a defendant from normal investigation techniques after indictment; ... it only protects against deliberate efforts of law enforcement agents which are specifically aimed at eliciting incriminating statements relative to the crime under indictment."

 Id. at 324, (emphasis added), citing United States v. Edwards, 366 F.2d 853, 873 (2d Cir. 1966); Escobedo v. State of Illinois, 378 U.S. 478, 490-91, 84 S. Ct. 1758, 1764, 12 L. Ed. 2d 977 (1964).

 More recently, in Wilson v. Henderson, 584 F.2d 1185 (2d Cir. 1978), cert. denied, 442 U.S. 945, 99 S. Ct. 2892, 61 L. Ed. 2d 316 (1979), the court considered a case in which an informant had been placed in the defendant's cell for the purpose of listening for any remarks the defendant might make which would lead to the identification of his accomplices. Unlike Garcia, the efforts of the police in Wilson were directed toward the particular crime for which the defendant had been charged, not toward an independent investigation. Nevertheless, the court ruled that the right to counsel had not ...

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