United States v. Simon Smith ( 2013 )

FILED
NOT FOR PUBLICATION JAN 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30247
Plaintiff - Appellant, D.C. No. 3:10-cr-00124-JWS-
DMS-1
v.
SIMON D. SMITH, MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted August 28, 2012
Anchorage, Alaska
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Simon Smith (“Smith”) was in custody, under indictment for state drug and
firearms crimes, and represented by counsel, when state agents placed a confidential
informant (“CI”) and a recording device in his cell in an attempt to gather information
about a missing person. The placement of the recording device was done with FBI
*
This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
assistance and pursuant to an authorizing warrant, but also done despite a warning
delivered to the state police from his counsel that Smith was not to be questioned
without his counsel present. Over 400 hours of conversation were recorded.
Subsequently, the State dropped its charges and turned the case over to the federal
authorities who proceeded to indict Smith on federal drug and firearms crimes arising
out of the same events that had led to the state charges.
When the government announced its intention to use excerpts from the recorded
conversations at trial, Smith moved to suppress the recorded statements as violations
of his Sixth Amendment right to counsel. Following a lengthy hearing, a magistrate
judge recommended allowing admission of statements made outside the presence of
the CI, but suppression of those statements made in the CI’s presence, finding Sixth
Amendment violations.1 The district court, adopting the magistrate judge’s Report
and Recommendation (“R&R”) in full, ordered suppression. This timely government
1
It is well-settled law that once a defendant’s Sixth Amendment right to
counsel attaches, the government is forbidden from “deliberately eliciting”
incriminating statements about the crimes charged from the defendant. Massiah v.
United States, 377 U.S. 201, 206 (1964). These Sixth Amendment protections apply
to conversations between CIs and defendants where the CIs relay incriminating
statements from the defendant to the government, just as they do to formal
questioning. United States v. Henry, 447 U.S. 264, 274 (1980). The Ninth Circuit has
implemented Henry through a two-part test. See Randolph v. California, 380 F.3d
1133 (9th Cir. 2004).
2
appeal followed. See 18 U.S.C. § 3731. We affirm in part, reverse in part, and vacate
and remand in part.
I. Waiver
Ordinarily we would begin by discerning whether the crimes for which Smith
is indicted by the federal government are the “same offense” as the crimes for which
he was indicted by the State of Alaska during the time he was housed with the CI
because Sixth Amendment protections are “offense specific . . . [and] cannot be
invoked once for all future prosecutions.” McNeil v. Wisconsin, 501 U.S. 171, 175
(1991). Sixth Amendment protections attach only to those offenses with which a
defendant is charged, not all other past and potential criminal conduct.
The government argues the federal crimes for which Smith is currently indicted
are distinct from the state crimes for which he was indicted and represented at the time
of the recordings because: (1) the charges were brought by different sovereigns, and
(2) under Texas v. Cobb, 532 U.S. 162 (2001), which expanded Blockburger v. United
States, 284 U.S. 299 (1932), the crimes charged were different because each of the
state charges required at least one element that each of the federal charges did not, and
vice versa.
The government, however, did not raise these arguments until its objection to
the magistrate judge’s initial R&R. A district court judge may, but is not required to,
3
consider evidence and claims presented for the first time in a party’s objection to a
magistrate judge’s R&R. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002); United
States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000).
Here, the district court noted that the government had raised new objections, but
agreed with Smith that these newly raised claims had been forfeited 2 and that the delay
in raising these claims produced prejudice. Thus the district court incorporated by
reference Smith’s rationale for why these new arguments had been waived.3 We deem
this a sufficient “actual exercise” of the district court’s discretion and similarly decline
to consider these arguments.
2
We note that Smith’s Response contained a more explicit forfeiture argument
as to one of the government’s new claims than as to the other. However, his general
explanation as to how the government’s delay prejudiced his case pertained to both
of the government’s new arguments, and constituted a sound reason for deeming both
arguments forfeited.
3
We also note, as the government conceded at oral argument, that there is no
excuse for the government’s delay in raising these arguments. They had been
available to the government throughout the entirety of the proceedings before the
magistrate judge. See Howell, 231 F.3d at 623. Moreover, here, as in Howell, the
party who failed to raise arguments in a timely fashion is not a party to whom we feel
especially compelled to grant the benefit of the doubt—someone who like a pro se
petitioner is bereft of legal guidance and litigation experience. Rather, it is the federal
government. As we have stated before: “As an officer of the court, the prosecutor has
a heavy responsibility both to the court and to the defendant to conduct a fair
trial . . . .” United States v. Escalante, 637 F.2d 1197, 1203 (9th Cir.1980).
4
Because we deem the government’s “separate offenses” arguments forfeited,
we proceed to review the suppression order under the more stringent plain error
standard. See Fed. R. Crim. P. 52(b); United States v. Karterman, 60 F.3d 576, 579
(9th Cir.1995); United States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009) (discussing
plain-error review).
II. Suppression Order
In Randolph v. California, 380 F.3d 1133, 1144 (9th Cir. 2004), we laid out the
test for determining whether an individual acting as a CI violates a defendant’s Sixth
Amendment right to counsel, putting into effect the “deliberate elicitation” language
from the Supreme Court’s Massiah and Henry decisions. This test requires a showing
that (1) the CI was acting as an agent of the State when he obtained the information
from him, and that (2) the CI made “some effort to ‘stimulate conversations about the
crime charged.’” See Randolph, 380 F.3d at 1144 (quoting Henry, 447 U.S. at 271 n.
9). As we explained in Randolph, “‘stimulation’ of conversation falls far short of
‘interrogation.’” Id. (quoting Fellers v. United States, 540 U.S. 519, 522–25 (2004)).
Although the CI need not formally interrogate the defendant to violate his
rights, the Supreme Court in Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986), held that
where an informant is placed in close proximity to the defendant, but makes no effort
5
to stimulate conversations about the crime charged, there is no violation of the
defendant’s Sixth Amendment rights:
[A] defendant does not make out a violation of [his Sixth Amendment] right
simply by showing that an informant, either through prior arrangement or
voluntarily, reported his incriminating statements to the police. Rather, 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. The Court concluded the defendant’s Sixth Amendment rights were not
violated because the informant had not “deliberately elicited” any conversation based
on the trial court’s findings that the statements made by the defendant were
“unsolicited” and “spontaneous” and that the informant had “at no time asked any
questions with respect to the crime.” Id. at 440, 459.
The parties do not dispute that the CI was a government agent, so we look here
only at whether the magistrate judge and district court properly applied the “deliberate
elicitation” test. We review the district court’s ruling on the motion to suppress de
novo. See United States v. Decoud, 456 F.3d 996, 1007 (9th Cir. 2006).
The government initially proposed to use all 400 hours of recordings at trial, but
after Smith’s motion to suppress, reduced its proposed offer to eighteen separate
excerpts of the recordings. The magistrate judge recommended that all statements
Smith made in the CI’s presence be suppressed—both those that the submitted
6
transcript made clear were directly elicited by the CI, and those that the submitted
transcript made clear that only the CI was present. The magistrate judge characterized
the first category of these statements as “deliberately elicited” and the second category
of these statements as made in “an intentionally created situation that was likely to
induce the defendant to make incriminating statements.”
With regard to the first category of statements, those conversations numbered
5, 6, 9, 10, 11, and 12 in the record, the correct “deliberate elicitation” test prescribed
by Randolph was properly applied. However, we conclude that as to conversations
6, 9, and 10, the CI did not “stimulate conversation about the crime[s] charged,” but
rather about other subjects. Randolph, 380 F.3d at 1144 (emphasis added); see also
Kuhlmann, 477 U.S. at 456. Although the CI did elicit statements from Smith in each
of these conversations, he did not elicit information about the pending state charges.
Instead, he elicited statements about the missing girl. Thus, Smith’s Sixth
Amendment rights were not violated. We therefore reverse the district court’s
suppression order as to conversations 6, 9, and 10.
We vacate and remand the suppression order as to the second category of
statements, those conversations numbered 1, 2, 3, 4, 7, 8, 13, 14, and 18 in the record.
The magistrate judge concluded these were obtained through “an intentionally created
situation that was likely to induce the defendant to make incriminating statements.”
7
While the circumstances under which a statement are made are relevant in determining
whether a statement has been “deliberately elicited,” the magistrate judge’s simplified
test does not incorporate the Randolph and Kuhlmann tests or account for the
requirement that the CI have elicited conversation about the charged crimes.4
AFFIRMED in part, REVERSED in part, and VACATED and
REMANDED in part.
4
The record would have been more complete, and the magistrate judge’s
analysis easier, were more of the transcript of the discussions preceding the statements
the government sought to admit provided. Without sufficient transcript indicating the
context in which the statements were made, the “deliberate elicitation” test is more
difficult to implement and the risk of analytic inaccuracy is greater.
8