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This presumption is strong and may be rebutted only through proof by the school district that the intent to discriminate was not a factor contributing to the racial disproportionality. A racially neutral explanation is insufficient to rebut the presumption. Because the Keyes presumption is founded on a school district’s immediate past history of segregation, the plaintiffs do not take the position that it applies directly to the current ability grouping practices of the local defendants.

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Instead, the plaintiffs note that the local defendants have continuously employed achievement grouping at least since they were first desegregated. Consequently, these earlier assignment plans resulted in racial disproportionality in regular classrooms and must be presumed to be unconstitutional under Keyes. Because the present grouping programs are continuations of the initial schemes, and because ability grouping is allegedly only a “racially neutral explanation,” the plaintiffs urge that Keyes requires a finding of intentional discrimination in this case.

Essentially, they claim that ability grouping schemes which result in racial disproportionality cannot be implemented until a school district has operated as a unitary system without such programs for some indefinite period of time. This stance is not without support in this circuit’s precedent. In McNeal, we stated that the “rationale of both Singleton and Lemon would bar the use of [achievement grouping] until the district has operated as a unitary system without such assignments for a sufficient period of time to assure that the underachievement of the slower groups is not due to yesterday’s educational disparities.

The student population in McNeal, however, included black children who had attended inferior segregated schools. The McNeal court’s concern was that the prior “lack of educational quality would predictably cause students from the inferior system to immediately be resegregated within the lower classroom sections.

This reasoning is not pertinent here where the district court found that no student presently in the certified class had ever attended a segregated school. The fact that the grouping of the predecessors to the members of this class may have been influenced by their attendance at segregated schools is not relevant to the constitutional validity of the grouping systems at issue here. As a result, we conclude that the Keyes presumption does not apply and that the district court correctly followed the McNeal standard.

We need not decide whether the district court improperly placed the burden on the plaintiffs to prove that ability grouping resulted from past discrimination, see, e. See Debra P. Calfee , there is a great deal of evidence in the record indicating that ability grouping is a sound educational practice, see generally, e. Barbara Lerner , testimony of Dr. James Kulik , vol.

Clay , and that disadvantaged children, including black students, in all four local defendant school districts have made significant academic progress since the inception of the achievement grouping programs. Whatley , vol. The plaintiffs assert that this section furnishes an additional basis for relief from the allegedly discriminatory assignment practices of the defendants.

The district court applied disparate impact tests in making its determination under section The defendants argue that the district court should have required the plaintiffs to prove discriminatory intent, citing Castaneda v. Unit A , where the former Fifth Circuit Court of Appeals held that “discriminatory intent, as well as disparate impact, must be shown in employment discrimination suits brought against public employers under Title VI More recent Supreme Court decisions, however, have overruled this aspect of Castaneda.

In Guardians Association v. Civil Service Commission, U. Darrone, U. Moreover, in Alexander v. Choate, U. The elements of a disparate impact claim may be gleaned by reference to cases decided under Title VII, 42 U.

Medical Center, Inc. The plaintiff first must show by a preponderance of the evidence that a facially neutral practice has a racially disproportionate effect, whereupon the burden shifts to the defendant to prove a substantial legitimate justification for its practice. The plaintiff then may ultimately prevail by proferring an equally effective alternative practice which results in less racial disproportionality or proof that the legitimate practices are a pretext for discrimination.

See generally Albemarle Paper Co. Moody, U. Green, U. The district court found that the plaintiffs had met their burden of establishing a prima facie case through statistics showing that the racial composition of many of the local defendants’ regular classrooms differs from what would be expected from a random distribution. The court also found that the defendants had successfully rebutted the plaintiffs’ prima facie case by establishing the educational necessity for grouping students, and that the plaintiffs had failed to show the existence of equally sound educational alternatives to the assignment plans that result in less racial disproportionality.

We need not reach the issue whether the district court properly found that the plaintiffs made out an adequate prima facie showing of disparate impact because we agree with the court’s other two conclusions. This justification is analogous to the “business necessity” exception in Title VII cases. Harris, U. Following this guide, we analyze the sufficiency of the defendants’ claim of educational necessity in light of cases interpreting the term business necessity.

Griggs v. Duke Power Co. The Supreme Court reasoned that ” [t]he touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. The Court held that the two requirements for employment in that case were not “shown to bear a demonstrable relationship to successful performance of the jobs for which [they were] used.

In reaching its conclusion, the Court rejected as insufficient the view that the job criteria “generally would improve the overall quality of the work force,” id. The Court has reaffirmed the principle of job relatedness on a number of occasions. Teal, U. Under this precedent, the defendants in this case had the burden of proving that their achievement grouping practices bear a manifest demonstrable relationship to classroom education.

The court characterized achievement grouping as an “accepted pedagogical practice,” id. The plaintiffs’ disagreement with the district court’s holding is twofold. First, they urge that the evidence is insufficient to support a finding that ability grouping per se is educationally desirable. Second, they assign as error the district court’s failure to specifically find that the methods used by the local defendants to assign students to achievement groups adequately measure a student’s true abilities in each particular class.

The plaintiffs point out that any supposed educational advantages gained through ability grouping are negated when, for example, a student is assigned to a group in mathematics as the result of his or her scores on reading tests. The district court’s findings of the educational soundness of interclass ability arrangements per se are not clearly erroneous. There is also evidence that ability grouping results in improved class manageability, student and teacher comfort and student motivation.

There was expert testimony attesting to the desirability of these practices. See generally, e. Lerner , testimony of Dr. Kulik , vol. Clay ; Lee County Exhibits 30, 32, 34, 36, These tests generally suggested that a student’s race and the percentage of blacks in a child’s class are the most potent predictors of his academic achievement.

Citing this evidence, the plaintiffs urged the district court to find that “racial differences in achievement, relied upon by the defendants in making classroom assignments, are in fact caused by the provision of different educational experiences for black and white children. There was other evidence, however, that these statistical studies failed to adequately account for other possible considerations affecting student performance. Lerner, for example, testified extensively on the factors impacting academic achievement and concluded that “family background” and “hard work,” rather than race, had the most powerful and consistent relationships to scholastic success.

We cannot overturn the district court’s finding of fact simply because this evidence was merely conflicting. See Western Beef, Inc. Compton Investment Co. The plaintiffs next fault the district court’s failure to find that the methodology used by the defendants to assign students was valid. We agree that, just as job requirements must adequately measure characteristics related to job performance in the employment context, the criteria by which students are assigned to a specific class must adequately measure the student’s abilities in that subject.

Scott v. City of Anniston, F. See Rowley v. McMillan, F. The court’s awareness of the dangers of assignment to one class according to evaluations relevant only to another subject is apparent from its discussion of the grouping models used by the local defendants.

Because the grounds upon which the court reached its conclusion are evident, the lack of explicit findings does not preclude appellate review. Grover Hill Grain Co. Baughman-Oster, Inc. The district court’s implied findings are not clearly erroneous. The record reflects that students in all four defendant school districts are grouped in particular classes according to tests, evaluations and performance in the same subject, in closely related subjects or in a broad variety of subjects.

Stanley Bernknopf. The reliability of the local defendants’ grouping criteria is also supported by the evidence showing improvement in students scores and mobility between achievement groups. Based on these facts and our review of the entire record, the district court did not err in finding that the defendants had rebutted the plaintiffs’ prima facie case of disparate impact by establishing the educational necessity of achievement grouping.

The plaintiffs complain that the district court eliminated random assignment accompanied by intraclass grouping as an equally sound educational alternative that results in less racial disproportionality. Calfee explaining heterogeneous grouping as a remedy. This language, they say, constitutes a recognition by the district court that random grouping would be equally effective as homogeneous achievement grouping.

This stance is based on a misreading of the district court’s opinion. The court’s statement is only a determination that neither homogeneous nor heterogeneous grouping per se is educationally advantageous.

This finding is not clearly erroneous. Although there was evidence to the contrary, see, e. Calfee , there was expert testimony that integration per se is not educationally advantageous, see Record, vol. Lerner , and that homogeneous grouping may be detrimental to higher achieving students. There was also testimony that intraclass grouping is not as beneficial as interclass grouping. As noted previously, the district court determined that interclass achievement grouping is educationally beneficial.

Based on these considerations, the district court was not clearly erroneous in finding that random assignment and intraclass grouping is not an equally sound educational alternative. They acknowledge that the state regulations, if properly implemented and interpreted by the local defendants, would not violate Title VI. Brief of Appellants at However, the court found that the defendants successfully rebutted this showing and that the plaintiffs failed to establish the existence of any equally effective alternative practices which would result in less racial malapportionment.

Generally, to establish a prima facie case of disparate impact based on race the plaintiffs must show that the defendants’ racially neutral practice detrimentally affects persons of a particular race to a greater extent than other races. See generally Rowe v. General Motors Corp. Grossman, Employment Discrimination Law 2d Ed. Uncle Ben’s, Inc. Consequently, the plaintiffs must show that the practices of the local defendants impacted more harshly on black children than on other students.

The plaintiffs furnished statistical evidence establishing with a high level of mathematical confidence that the percentage of black students assigned to EMR programs in each defendant school district was significantly greater than what would be expected from a random distribution of schoolchildren, given the percentage of black children in the district’s student population as a whole.

These statistics were derived from information about the number of black and white students in the defendant school district’s EMR classes and student populations.

Martin Shapiro ; Plaintiffs’ Exhibits , , This evidence is insufficient to establish a prima facie case of disparate impact with respect to either of the practices of the local defendants.

To assess the effect of the local defendants’ first practice, the total pool of students against which black children should have been measured is not the entire student body of the school district but the group of students who have been classified as EMR through a process not complying with the applicable regulations. However, the plaintiffs offered no evidence that the percentage of black students in this pool was greater than the percentage which would be expected from a random distribution.

The number of white children assigned to EMR programs through the same impermissible application of the procedural regulations was not examined by the plaintiffs.

In fact, the only evidence introduced at the trial indicated that procedural violations occur when evaluating white students at a rate similar to that when assigning black schoolchildren. The plaintiffs argue that the local defendants should have interpreted the state I.

See generally, infra Part V A 2. Although the plaintiffs allege that the practice of misinterpreting the I. The plaintiffs did not consider the number of white children who were classified as EMR with similar I. The plaintiffs simply failed to meet their burden of showing that the criticized practices here did not affect white students to the same degree as black students.

Practices which detrimentally affect all groups equally do not have a discriminatory effect. The plaintiffs’ dogged reliance on specific instances of alleged misclassifications of black students is meaningless to the Title VI issue in the absence of evidence of the frequency of misclassifications of white schoolchildren. The plaintiffs’ statistics establish that black children are assigned to EMR classes at a disproportionate rate but do not demonstrate that the disparity is attributable to the local defendants’ practice of violating or misinterpreting regulations.

No otherwise qualified handicapped individual To make out a case under this section, the plaintiffs charge 1 that the local defendants contravened a number of federal regulations in operating their EMR assignment programs and 2 that black children are misclassified as educably mentally retarded in a manner constituting handicap discrimination.

Federal regulations passed pursuant to the Rehabilitation Act provide a number of procedural safeguards to ensure that students are properly classified as EMR program candidates.

The regulations require a full individual evaluation of the child before placement in any EMR program. See 34 C. The evaluation team must be composed of persons knowledgeable about the child, the meaning of the evaluation data and the placement options. In addition, the school must ensure the appropriate parental consent to and participation in the evaluation process. The appraisal of the child’s eligibility must be based on validated tests and other material tailored to assess specific areas of educational need, see 34 C.

The team must also determine the least restrictive environment available that will meet the child’s educational needs. See C. All this information must be considered and documented, see 34 C.

Initially, the district court found that all four local school districts had violated a number of these regulations. The violations related to such matters as the failure to administer psychological exams, assess adaptive behavior, conduct timely placement reevaluations, consider less restrictive alternatives to EMR placement and ensure adequate parental participation in the placement process.

The local defendants do not deny these violations, claiming only that they are attributable to human error and financial and administrative difficulties. In its supplementary order the district court held that the Supreme Court’s decision in Smith v. According to the district court, since the procedural violations were actionable to the same extent under the EAHCA, the plaintiffs were required under Robinson to proceed under the EAHCA and first exhaust their state administrative remedies.

The court reasoned that the plaintiffs admittedly sought relief only under section and did not pursue their EAHCA administrative avenues to their finality and consequently were entitled to no section relief. In Robinson, the plaintiff alleged that a child had been denied special education placement in violation of state law, section , the EAHCA and the fourteenth amendment.

The plaintiff prevailed under state law and applied for attorney’s fees pursuant to 42 U. The Supreme Court held that when the EAHCA overlaps with more general civil rights provisions such as section and the fourteenth amendment, the more specific EAHCA “is the exclusive avenue through which the child and his parents or guardian can pursue their claim.

In addressing the relationship between the EAHCA and section , the court stated there is no doubt that the remedies, rights, and procedures Congress set out in the [EAHCA] are the ones it intended to apply to a handicapped child’s claim to a free appropriate public education.

We are satisfied that Congress did not intend a handicapped child to be able to circumvent the requirements or supplement the remedies of the [EAHCA] by resort to the general antidiscrimination provision of [section] There is no suggestion that [section] adds anything to petitioners’ substantive right to a free appropriate public education.

The only elements added by [section] are the possibility of circumventing the [EAHCA] administrative procedures and going straight to court with a [section] claim, the possibility of a damages award in cases where no such award is available under the [EAHCA], and attorney’s fees.

The plaintiffs make three arguments why Robinson does not bar relief for the regulatory violations. First, they point out that the Supreme Court established an exception to the exclusivity rule when “the [EAHCA] is not available or where [section] guarantees substantive rights greater than those available under the [EAHCA].

They contend that their complaint that normal children were misdiagnosed as being retarded is not actionable under the EAHCA, which merely guarantees the rights of persons properly characterized as handicapped.

While it may be true that the EAHCA does not encompass the plaintiffs’ substantive claim of handicap discrimination, all the violations of the Rehabilitation Act regulations are also violations of federal and state regulations promulgated pursuant to the EAHCA. I A — E parental rights and participation ; 34 C. III C 1 a information to be considered ; 34 C. III C 1 b requirement that information be documented ; 34 C. III B 12 periodic reevaluations ; see generally 34 C.

The plaintiffs, therefore, cannot avoid the exclusivity rule for this reason. Second, the plaintiffs contend that Robinson is inapplicable because their claim falls within a second exception to the exclusivity principle which applies to challenges to state “procedures.

Because the plaintiffs asserted no constitutional challenge to the validity of the state procedures, this exception is of no aid to them.

Manecke v. School Board of Pinellas County, F. State of Nebraska, F. Finally, the plaintiffs urge that it would have been futile for them to pursue their EAHCA administrative remedies.

The Robinson Court appeared to recognize that the exhaustion of EAHCA administrative remedies may not be required if doing so would be an exercise in futility.

See Robinson, U. The district court observed that at the time the plaintiffs filed suit, the administrative procedures used by the State of Georgia pursuant to the requirements of the EAHCA were unlawful, see Helms v.

McDaniel, F. Unit B , cert. The Robinson Court held only that a plaintiff who had prevailed under state law and alleged substantial claims under section and the EAHCA could not recover attorney’s fees under the Rehabilitation Act. The Court, therefore, was not confronted with whether a plaintiff who has sued only under section is precluded from all relief when the EAHCA provides equivalent substantive rights. The Robinson Court based its holding on Congress’ desire to prevent the circumvention of the EAHCA’s comprehensive administrative scheme and on the legislature’s intent that a plaintiff not be allowed to “supplement the remedies of the [EAHCA] by resort to Because, as found by the district court, administrative exhaustion would have been futile in this case, the first concern is not relevant here.

Although the goal of limiting the remedies available to the plaintiff would be thwarted if all section relief were allowed in this case, we see no reason why the district court, on remand, could not limit the benefits of section to that available under both that statute and the EAHCA, thereby satisfying the statutory purpose to restrict access to the EAHCA by resort to section A contrary view would require the plaintiffs to engage in the procedural gymnastics of amending their complaint by relabeling the lawsuit as an EAHCA cause of action.

Congress could have hardly intended such a result, particularly where, as here, the violations of the regulations are largely conceded by the defendants. We hold that under the circumstances of this case, Robinson does not preclude section relief which does not exceed that available under the EAHCA.

Federal regulations require that “significantly subaverage general intellectual functioning” and “deficits in adaptive behavior,” 34 C. In accordance with the federal mandate, the Georgia regulation interprets “mildly mentally handicapped,” the first level of the classification “mentally handicapped” which identifies persons eligible for EMR programs, in terms of intellectual functioning and adaptive behavior.

Intellectual functioning–performance on an individually administered psychological examination shall range between two and three standard deviations below the mean of the test utilized. Adaptive behavior–significant deficits must be present as defined and measured by at least one standardized instrument.

The plaintiffs insist that the local defendants misinterpreted and misapplied these two provisions. In their view, the “intellectual functioning” criterion establishes a strict rule that students with I.

They also urge that the “adaptive behavior” provision requires that out-of-school adaptive behavior be considered and weighed the same as in-school adaptive behavior.

Because the school districts permit flexibility in applying the I. The district court originally held that the state I. The court concluded that “the practices as defined and endorsed by the AAMD evidence best professional practices [and] The court declined to order that the local defendants exceed the requirements of the existing state and federal regulations and consider out-of-school adaptive behavior, crediting testimony that “the school setting is the more important evaluation tool inasmuch as the ultimate [determination] is an educational one.

The district court’s interpretations of the state regulations are not erroneous. The court’s construction of the I. Although the state regulation does not explicitly refer to the standard error of measurement, a number of experts testified at the trial that inclusion of this amount of flexibility in considering I.

Kicklighter standard error of measurement is an intrinsic part of I. Furthermore, there is substantial evidence in the record supporting the view that the AAMD guidelines are acceptable professional tools.

These findings are not clearly erroneous. McLaughlin , vol. Katherine Blake , together with information that school officials on occasion did visit the children’s homes to assess adaptive behavior, testimony from two expert witnesses for the defendants, Dr. Kicklighter and Dr. Reschley, confirmed that in-school adaptive behavior is the more important criterion. Kicklighter , vol. Vitale does not bar successive prosecutions of these offenses. Initially developed in civil cases, the doctrine of collateral estoppel dictates that an issue of ultimate fact determined by a valid final judgment cannot be litigated again between the same parties.

Swenson, U. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.

New Trials and Successive Prosecutions, 74 Harv. Flittie argues that collateral estoppel should have prevented trial on the accessory count. The panel held that any preclusive effect must flow from Flittie’s acquittal on the murder charge, reasoning that the conviction on the conspiracy charge could not bar later proceedings by the state because the Ashe rule refers only to acquittals.

The court relied on cases in this circuit that have held collateral estoppel to be a good defense only as to ultimate issues determined at the first trial in the defendant’s favor. See United States v. DeCoteau, F. Friedman, F. Swenson, F. Haley, F. South Dakota, F. United States, F.

On rehearing, however, Flittie argues that the court en banc should hold that collateral estoppel must be applied to bar relitigation of ultimate facts that have been decided in the government’s favor in a prior trial.

He urges that we reject the long line of precedents adverse to this position on the ground that these cases were wrongly decided. We find no support for Flittie’s argument. To the contrary, all relevant Supreme Court decisions support the panel’s holding. First, Ashe itself strongly implies that collateral estoppel is invoked only upon a prior acquittal. The Court stated: And the jury by its verdict found that he had not.

Under Flittie’s theory, it would have been unnecessary for the Court to relate the fact of prior acquittal; the mere presence of the issue before the jury would have been enough to invoke estoppel. This mention of the fact of acquittal implies that it was necessary to the result. Later in the opinion, the Court observed that the fifth amendment “protects a man who has been acquitted from having to ‘run the gauntlet’ a second time.

If anything in the decision intimates that prior convictions invoke estoppel, it is dictum. In a concurring opinion joined by two members of the Court, Justice Brennan stated flatly: Many Supreme Court decisions applying estoppel do so in the context of prior acquittals.

We have found none, however, that involve convictions and estoppel. See, e. Arkansas, U. Washington, U. Florida, U. The Court addressed this issue in Sealfon v. The accused had been acquitted of conspiring to defraud the government. He was retried on the underlying substantive offense. No double jeopardy attached because the two offenses were not the same. The Court recognized, however, that collateral estoppel could apply to successive criminal prosecutions for different offenses.

The only issue was framed as “whether the jury’s verdict in the conspiracy trial was a determination favorable to petitioner of the facts essential to conviction of the substantive offense. This case has been interpreted, and correctly so, to require an acquittal before estoppel is invoked.

Cowart, F. Finally, any doubt left after Sealfon was resolved in United States v. Williams, U. Williams involved a defendant who raised a defense of estoppel based on a prior conviction. The Court responded: This case plainly shows that Flittie’s argument is without merit.

See C. Whitebread, Criminal Procedure Sec. The acquittal on the murder charge implied that the jury resolved some issues in Flittie’s favor. Under Ashe, then, the next step is to determine what issues were resolved in Flittie’s favor and whether any of these issues are elements of the accessory charge.

We begin by examining the charges to the juries. In the first trial, Flittie was convicted of conspiracy. The jury had to find that: To find Flittie not guilty of murder, the first jury had to find that one or more of the following elements were not proven beyond a reasonable doubt: To convict Flittie as an accessory after the fact, the second jury had to find that: Flittie argues that the first jury could have decided that his post-murder conduct was sufficient to support a murder conviction, and that the acquittal on the murder charge indicated that the jury found Flittie was not an after-the-fact participant.

Consequently, this issue should have been barred in the second trial as resolved in Flittie’s favor at the first. This argument is unconvincing. The guilty verdict on the conspiracy charge belies the contention that the first jury thought Flittie was not guilty of after-the-fact participation. The South Dakota Supreme Court found it “evident that the jury in the first trial convicted defendant on the conspiracy charge based on his post-murder conduct.

See id. An instruction from the first trial helps to harmonize the verdicts: The first jury could have found that Flittie had engaged in culpable conduct after the murder and based the conspiracy conviction on this finding. The acquittal on the murder count may rationally reflect the jury’s belief that Flittie had not acted as an accessory before the fact. A finding that Flittie did not act as an accessory before the fact does not preclude trying him as an accessory after the fact.

Flittie contends that collateral estoppel should have prevented the trial court from allowing the introduction of any evidence admitted during the first trial. This argument’s success depends on whether the Ashe doctrine extends to bar relitigation of evidentiary facts. The fact central to this issue is whether Flittie acted as an accessory to the murder before the fact.

This fact was an essential ultimate fact in the trial on the murder charge. The conviction on the accessory after the fact count, however, did not depend on finding whether Flittie was an accessory before the fact. Thus, the same fact was only evidentiary in the second trial.

The law in this circuit is that collateral estoppel does not bar relitigation of facts that are evidentiary in the second prosecution. United States v. Riley, F. Brewer, F. Kills Plenty, F. Harris was a good friend of Flittie; they had been acquainted for ten years, and it was Harris who had first introduced the defendant to Downs.

Prior to December 5, , Harris had been arrested on two forgery charges. On January 9th of the next year, Harris entered into an agreement with state officials that provided for dismissal of the forgery charges. The terms required Harris to cooperate with law enforcement officials in “attempting to illicit [sic] incriminating statements” from Roger Flittie.

That evening, Harris was taken to the state penitentiary to visit the defendant, who was incarcerated on a conviction unrelated to his mother’s death. Although not compelled to do so by prison policy or practice, Flittie agreed to see and converse with Harris. The defendant was unaware, however, that Harris and the visiting room had been equipped to make audio and video recordings of the discussion. During the conversation, Harris made several statements that he conceded at trial were lies.

He misrepresented to Flittie that Downs had been requesting more money for his role in the murder and falsely implied that Downs intended to satisfy his demands out of Flittie’s property.

In response to these false comments and other discussion, Flittie made several arguably incriminating statements. A videotape recording of these statements was played for the jury. Flittie had a full and fair opportunity to litigate this issue in the South Dakota courts. We cannot, therefore, set aside the conviction on this ground.

See Stone v. Powell, U. Wyrick, F. Second, Flittie argues that admission of the tape violated his sixth amendment right to counsel. At the time the tape was made, Flittie was neither under arrest for nor charged with his stepmother’s murder.

Therefore, he had no sixth amendment right to counsel. See Brewer v. Grego, F. Dobbs, F. The record shows that the defendant was arrested and charged within several hours after the tape was recorded. Flittie argues that the arrest was delayed solely to deprive him of his Massiah rights.

Intentional and unnecessary delay by the government in bringing an indictment may invoke the sixth amendment right to counsel. This case, however, is not within the Dobbs exception to the Massiah rule. Although Flittie had become a primary suspect when the tape was recorded, the government’s delay was not unnecessary.

Prior to the day when the tape was made, law enforcement officials felt that there was not enough evidence to support the charge against Flittie. Most important was the arrest of Downs and his subsequent confession to murdering Ruth Flittie.

Flittie, No. Thus, the timing of the arrest is consistent with the accumulation of evidence implicating Flittie.

Hoffa v. Flittie’s final claim with respect to the tape is that its admission violated fifth amendment guarantees against self-incrimination. The first issue is whether Flittie’s Miranda rights were violated. See Miranda v. Arizona, U. Packer, F. Hasting, U. Flittie’s taped statements were not the key to the state’s case.

Less than fifteen minutes in length and often inaudible, the tape contained only a few marginally incriminating statements. Most of the statements did not relate to the accessory after the fact charge. Four different witnesses testified concerning Flittie’s aid to Downs after the fact, including Downs, Harris, Kaprelian, and Brandon. Physical evidence, in the form of phone records and cancelled money orders, added support.

To counter this evidence, the defendant chose only to attack the credibility of the state’s witnesses. It is unlikely that the videotape had a major impact on the jury in determining whether these witnesses were believable.

The whole record shows overwhelming independent evidence to support the conviction. See also Milton v. Wainwright, U. The second fifth amendment issue is whether the statements were coerced.

The tape would be inadmissible unless the totality of circumstances shows that Flittie’s statements were the product of a free and rational choice. See Greenwald v. Wisconsin, U. Flittie raises a number of grounds to support his coercion claim. The first is that he was in the South Dakota penitentiary when the statements were taken.

The Supreme Court recognized in Miranda the compelling pressures upon incarcerated persons. Flittie was in custody, but on an unrelated matter. Incarceration does not ipso facto make a statement involuntary. See Cervantes v. Walker, F. While Flittie may have been constrained within the penitentiary walls, he was not forced to remain in the visitors’ room with Harris. Thus, the imprisonment did not produce a coerced statement. Second, Flittie maintains that Harris’s hidden link to law enforcement officials was a form of coercion.

At the time of the encounter, Flittie was unaware that Harris was cooperating with the state. The use of a secret informer, however, is not unconstitutional per se.

Hoffa, U. Davis, F. Flittie agreed to see Harris of his free will, and he was equally free to terminate the conversation at his pleasure. That the statement was secretly recorded does not itself vitiate the consent. Finally, Flittie urges that his responses were coerced because they were prompted by Harris’s statements, some of which, Flittie argues, were untruthful and possibly threatening.

Misrepresentations on the part of the government do not make a statement per se involuntary. See Frazier v. Cupp, U. Galloway v. Fagg, F. The totality of circumstances shows that Flittie’s statements were the product of a free and rational choice. It was not, therefore, a violation of the fifth amendment to admit the videotape. The judgment of the district court is affirmed. I would reverse the district court and grant the writ on double jeopardy grounds for the reasons set forth by Judge Arnold in his dissenting opinion, except for the first paragraph thereof which deals with the conversation between Flittie and Harris.

As to that conversation, I agree with the majority opinion. I agree with the double jeopardy analysis set forth in the majority opinion.

In particular, I agree that the collateral estoppel doctrine set forth in Ashe v. However, I do not agree with the majority opinion’s analysis of the admissibility of the taped conversation between Flittie and Harris.

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