United States District Court, E.D. Texas
MEMORANDUM AND ORDER
A. CRONE, UNITED STATES DISTRICT JUDGE
before the court is Defendant Winfred Earl Ware, Jr.'s
(“Ware”) Motion to Suppress the Testimony of
Derek Harrison (“Harrison”) (#90), wherein he
contends that his Sixth Amendment right to counsel was
violated when Harrison, while allegedly acting as a
government agent, purportedly elicited incriminating
information from him. Having considered the pending motion,
the submissions of the parties, the record, and the
applicable law, the court is of the opinion that the motion
should be denied.
November 14, 2018, a Grand Jury for the Eastern District of
Texas returned a three-count Indictment charging Ware with:
(1) conspiracy to possess with intent to distribute a
controlled substance (methamphetamine), in violation of 21
U.S.C. § 846; (2) obstruction of the due administration
of justice, in violation of 18 U.S.C. § 1503; and (3)
tampering with a witness by misleading conduct, in violation
of 18 U.S.C. § 1512(b)(1). The final pre-trial
conference and voir dire were conducted on June 17, 2019.
Testimony began on June 19, 2019. The Government learned that
Harrison was a potential witness on June 18, 2019.
who was previously detained at the LaSalle Corrections
Facility in Beaumont, Texas, was transferred to the Upshur
County Jail on June 13, 2019, to be closer to Tyler, Texas,
where his trial was scheduled to begin on June 17, 2019. Ware
was placed in a six-person cell with five other prisoners,
which was one of two cells reserved for federal inmates at
the facility. Harrison had been housed in the cell since
January 2019 and was awaiting sentencing for his
participation in a crack cocaine conspiracy case pending
before Judge Schroeder in Texarkana, Texas. The decision to
place Ware in the cell was made by Sgt. Somer Monts
(“Sgt. Monts”) with the Upshur County
Sheriff's Office Jail Division. Sgt. Monts placed Ware in
the same cell as Harrison because both were federal detainees
and had 4-Medium security classifications. Sgt. Monts
followed the “classification decision tree”
pursuant to jail policy to classify and house both inmates.
Harrison was a defendant and cooperating witness in case
number 6:18-cr-37, United States of America v. Jason Lee
Allison, et al. Harrison cooperated with the Government
in his case from November 13, 2017, until he was indicted and
surrendered to the custody of authorities on July 30, 2018.
18, 2019, Harrison was sentenced for his role in case number
6:18-cr-37. At his sentencing hearing, Harrison's
attorney informed Assistant United States Attorney
(“AUSA”) Ryan Locker, who was assigned to his
case, that Harrison had information regarding Ware that might
be of interest to the Government. Locker spoke briefly with
Harrison and his attorney, learned that Harrison would be
willing to speak with the AUSAs assigned to Ware's case,
and instructed Harrison not to have any further conversations
with Ware. Locker advised the AUSAs assigned to Ware's
case of Harrison's willingness to speak with them
regarding the instant case. After the sentencing hearing,
Harrison was returned to the Upshur County Jail where he was
interviewed by Special Agent Jonathan Dickard, AUSA Michelle
Englade, and Special Agent Craig Redden (“S.A.
Redden”) in the presence of his attorney, Jason
Cassel. After the interview, Harrison was placed in solitary
confinement and had no further contact with Ware.
19, 2019, the court held an evidentiary hearing outside the
presence of the jury regarding Harrison's proffered
testimony. It is undisputed that Harrison operated as a
confidential informant under the direction of S.A. Redden
from November 2017 until July 30, 2018, in regard to case
number 6:18-cr-37. S.A. Redden confirmed under oath that he
ceased contact with Harrison on July 30, 2018, the date he
surrendered. Further, S.A. Redden had no knowledge that
Harrison and Ware were housed together and did not expressly
or implicitly instruct Harrison to inquire into Ware's
case or trial strategy. The record reflects that until he
spoke with the Government on June 18, 2019, Harrison had no
contact with any representative of the Government for the
past year. Harrison testified that, when Ware first entered
the cell, he asked Ware what he was doing there. Harrison and
Ware are both from the small town of Carthage, Texas.
Thereafter, according to Harrison's testimony, Ware spoke
with Harrison and his other cellmates about various aspects
of the instant case and showed him a variety of case-related
documents. Harrison testified that aside from asking an
occasional question, pointing out apparent inconsistencies in
Ware's theory of his case, and feigning ignorance of S.A.
Redden, Harrison merely listened to Ware's comments.
Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. “This right is not limited to the trial
itself; an accused is entitled to assistance of counsel at
all ‘critical stages' of criminal
proceedings.” United States v. Pleitez, 876
F.3d 150, 157 (5th Cir. 2017) (citing Montejo v.
Louisiana, 556 U.S. 778, 786 (2009)). In Spano v.
New York, the Supreme Court of the United States
extended this protection to include a defendant's right
to counsel during post-indictment interrogations by
Government agents. 360 U.S. 315 (1959). In Massiah v.
United States, the Supreme Court expounded on this
protection by including cooperating government informants in
the category of “government agents.” 377 U.S.
201, 206 (1964). After Massiah, the Supreme Court
decided United States v. Henry, 447 U.S. 264 (1980).
In Henry, a jailhouse informant, at the
government's instruction, developed a relationship of
trust and confidence with the defendant such that the
defendant eventually revealed incriminating information.
Id. at 269. The government argued that
Massiah did not apply because the government
instructed the informant not to question the defendant about
his crime. Id. at 271. The Court rejected this
argument, concluding that “[b]y intentionally creating
a situation likely to induce Henry to make incriminating
statements without the assistance of counsel, the Government
violated Henry's Sixth Amendment right to counsel.”
Id. at 274. The Court reached a similar conclusion
in Maine v. Moulton, where an informant agreed to
record telephone conversations and a meeting with a
co-defendant to plan defense strategy before an upcoming
trial with equipment supplied by the police. 474 U.S. 159,
Kuhlmann v. Wilson, the Court provided additional
guidance as to the application of Massiah. 477 U.S.
438 (1986). In Kuhlmann, state detectives reached an
agreement with the defendant's cell mate to be an
informant. Id. at 439. The detectives instructed the
informant to ask no questions about the crime but merely to
listen to what the defendant said to others. Id. at
440. The trial court determined that the informant obeyed the
instructions and only listened and made notes regarding what
the defendant said. Id. The Kuhlman Court
held that no Massiah violation had occurred,
emphasizing that to establish a violation the defendant must
demonstrate that the “police and their informant took
some action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks.”
Id. at 459. Since Kuhlman, the Court has
not revisited the issue. Lower courts, however, have
repeatedly addressed Massiah and its progeny.
lower courts' application of the Massiah line of
cases frequently depend on two issues: (1) whether the
informant was acting as an agent of the Government and (2)
whether the informant deliberately elicited the information
from the defendant. See Iowa v. Marshall, 882 N.W.2d
68, 91-99 (Iowa 2016), cert. denied, 137 S.Ct. 829
(2017). Both issues are relevant here.
Informant Acting as Government Agent
Supreme Court has not formally defined the term
‘government agent' for Sixth Amendment
purposes.” Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 893 (3d Cir. 1999) (citing
Depree v. Thomas, 946 F.2d 784, 793-94 (11th Cir.),
cert. denied, 528 U.S. 824 (1999)). A split of
authority has developed among the Courts of Appeal as to the
definition. See Ayers v. Hudson, 623 F.3d 301, 310
(6th Cir. 2010) (observing the split). The First, Second,
Eighth, Ninth, and D.C. Circuits have adopted a narrow,
bright line rule that “[a]n informant becomes a
government agent . . . only when the informant has been
instructed by the police to get information about the
particular defendant.” United States v.
Birbal, 113 F.3d 342, 346 (2d Cir.), cert.
denied, 522 U.S. 976 (1997); see United States v.
LaBare, 191 F.3d 60, 65 (1st Cir. 1999); Moore v.
United States, 178 F.3d 994, 999 (8th Cir.), cert.
denied, 528 U.S. 943 (1999); United States v.
Watson, 894 F.2d 1345, 1347-48 (D.C. Cir. 1990);
Brooks v. Kincheloe, 848 F.2d 940, 945 (9th Cir.
1988). On the other hand, the Third, Fourth, Sixth, and
Eleventh Circuits have adopted a broader, more fact specific
inquiry. See Ayers, 623 F.3d at 310;
Matteo, 171 F.3d at 893; United States v.
Brink, 39 F.3d 419, 423 (3d Cir. 1994); Depree,
946 F.2d at 793-94; Thomas v. Cox, 708 F.2d 132, 136
(4th Cir.), cert. denied, 464 U.S. 918 (1983). Under
the broader approach, “[t]here is, by necessity, no
bright-line rule for determining whether an individual is a
government agent for purposes of the sixth amendment right to
counsel. The answer ...