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United States v. Ware

United States District Court, E.D. Texas

June 25, 2019

UNITED STATES OF AMERICA
v.
WINFRED EARL WARE, JR.

          MEMORANDUM AND ORDER

          MARCIA A. CRONE, UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. Background

         On 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.

         II. Factual Findings

         Ware, 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.

         On June 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”)[1] in the presence of his attorney, Jason Cassel. After the interview, Harrison was placed in solitary confinement and had no further contact with Ware.

         On June 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.

         III. Analysis

         The 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, 177 (1985).

         In 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.

         The 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.

         A. Informant Acting as Government Agent

         “The 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 ...


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