United States v. Kevin E. Watson , 894 F.2d 1345 ( 1990 )

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Dissenting opinion filed by Circuit Judge MIKVA.

D.H. GINSBURG, Circuit Judge:

Following a jury trial, appellant Kevin Watson was convicted of possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(a), (b)(l)(B)(ii), and sentenced to 75 months imprisonment. He now appeals that conviction, asserting five grounds for reversal. After discussing his principal points, we affirm.

I. BackgRound

On December 7, 1987, an Amtrak policeman became suspicious of Watson when he discovered that Watson had purchased a train ticket from Miami to Philadelphia with cash, thirty-one minutes prior to his departure, and had given Amtrak an incorrect phone number. Watson had purchased the ticket under the name Fred Roberts, and gave that name to the policeman and three officers of the Drug Enforcement Administration when they first encountered him on the train at Union Station in Washington; he was unable to give the officers any identification other than a piece of paper with the name Fred Roberts printed on it. Following a pat down by one officer, to which Watson consented, Watson produced $1700 dollars from his shoe and explained that he had intended to use the money in order to make a down payment on a house in Florida. The officers then proceeded to another compartment without arresting Watson. A short time later, the officers again encountered Watson in the corridor of the train. After receiving Watson’s permission to search his train compartment, one of the officers discovered two packages containing a total of 1283 grams of a mixture that was approximately 85% cocaine. The officers arrested Watson at that time.

At trial Watson testified that he did not know that there were drugs in his train compartment and that he was not “involved with drugs in any way.” On cross-examination, Watson admitted that, while in jail, he had met a man named Eugene Young, but denied having told Young that he had been caught with cocaine or having shown him cocaine after his release from jail. The Government later announced that, in order to rebut this testimony, it intended to call Young, a DEA informant who had been incarcerated in the D.C. jail on an unrelated charge when Watson was being held after his arrest.

At an evidentiary hearing, Watson moved to dismiss the case, or to exclude Young’s testimony about their jailhouse conversations, on two grounds. First, he made an offer of proof that, when they met in jail, Young represented himself to Watson as an attorney. Watson asserted that Young’s false claim induced him to talk to Young and that this action represents “outrageous government misconduct.” Therefore, Watson argued, the due process clause of the fifth amendment required either dismissal or at least exclusion of Young’s testimony. Watson also argued that admission of Young’s testimony would violate his sixth amendment right to counsel, as interpreted by the Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), because Young was seeking to elicit information from him on behalf of the DEA when they spoke in the jailhouse. The motion was denied and Young testified that while in jail, Watson told him that he had gone to Florida in order to purchase drugs and had been caught at Union Station on his way back to Philadelphia.

Young also testified that after he and Watson had been released from jail, he went to the auto body shop that Watson’s family owned and there negotiated to buy from Watson cocaine, four kilograms of which substance he saw in the back room. Watson sought to exclude this testimony under Federal Rule of Evidence 404(b), which limits the admission of evidence regarding uncharged bad acts, because he was not charged with any crime concerning that incident and it occurred after the events for which he was charged. The court admitted the evidence on the grounds, enumerated in Rule 404(b), that it was relevant both to Watson’s intent and to his knowledge with respect to the crime with which he was charged.

Watson’s mother and a friend testified that he had a general reputation for truthfulness. Watson did not ask that an instruction on character evidence be added, however, when the court, after the close of the evidence but before closing arguments, asked whether either party wanted any instructions in addition to those it proposed to give. After the jury had been otherwise duly instructed, the court asked if either side had anything further to suggest. At this point, defense counsel first requested that the jury be instructed additionally, per Instruction 2.42 of the Criminal Jury Instructions, District of Columbia (3d ed.), as follows: “On the other hand, the circumstances may be such that evidence of good character may alone create a reasonable doubt of a defendant’s guilt, although without it the other evidence would be convincing.” The court refused to give the instruction because the request was untimely. The judge stated:

I would have been inclined to give the instruction, if it had been requested earlier, but I feel at this point, to give it now, is really out of context with all of the other instructions, and it seems to highlight that instruction. Therefore, I will deny your request.

Defense counsel made no objection, but merely responded, “Very well.” Watson was convicted and sentenced as stated above.

II. DISCUSSION

We turn now to a discussion of the three principal issues raised by Watson and show why none requires reversal of his conviction.

A. The Jailhouse Conversations

The sixth amendment assures the accused “the assistance of counsel for his defense.” A corollary thereto prohibits the Government from using against a defendant “at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after [a formal charge had been filed] and in the absence of his counsel.” Massiah, 377 U.S. at 206, 84 S.Ct. at 1203; see also United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). In this case, we conclude that Young was not acting as a “federal agent” at the time of his jailhouse conversations with Watson; therefore, hjs testimony could not deprive Watson of’ his sixth amendment right to counsel.

It is established in the case law that in order for there to be a Massiah-type violation of a defendant’s sixth amendment right to counsel, the person eliciting the incriminating information must be acting as a government agent. In Henry, the Court restated the principle that both underlies and limits its reasoning in Massiah: “When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent ... [he may say something] that an accused would not intentionally reveal to persons known to be Government agents.” Id. at 273, 100 S.Ct. at 2188. We join the circuits that have expressly “refuse[d] to extend the rule of Massiah and Henry to situations where an individual, acting on his own initiative, deliberately elicits incriminating information.” United States v. Malik, 680 F.2d 1162, 1165 (7th Cir.1982); accord Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir.1987); United States v. Taylor, 800 F.2d 1012, 1015 (10th Cir.1986). In this regard, it is of no moment that the incriminating conversations took place while the accused was incarcerated; indeed Messiah was not in custody when the relevant conversation took place. As the Supreme Court has stated, in a case where there was no doubt that the interlocutor was a government agent, “the fact of custody bears on whether the Government ‘deliberately elicited’ the incriminating statements,” Henry, 447 U.S. at 274 n. 11, 100 S.Ct. at 2188 n. 11. It does not bear upon the anterior question whether that interlocutor (here Young) was acting on behalf of the Government, however; that depends solely upon whether he was acting upon the instruction of a government official.

Watson argues that several factors suggest that Young was indeed acting as a government agent at the time of their jailhouse conversations: Young had been a DEA informant for two years; he was in regular contact with the DEA while in the D.C. jail; he expected to be paid and to be rewarded with leniency if he produced a case on Watson; and the DEA told him not to pursue the investigation of Watson until Young’s release, suggesting (it is claimed) that the Government was directing Young’s actions regarding Watson while he was in jail.

As Watson admits, however, there is no evidence that the DEA in any way encouraged Young to talk to Watson. On the contrary, he was in jail on an unrelated charge; while there his conversations with DEA agents concerned only past cases; he did not even mention Watson to the DEA until after the jailhouse conversations had occurred; and he was never in fact rewarded by the Government for information relating to Watson. Based upon these facts, we find without doubt that the Government did not elicit Watson’s statements through the agency of Young. On the contrary, Young was acting as an entrepreneur; he may have hoped to make a sale to the Government when he spoke with Watson, but that does not make the Government responsible for his actions, any more than a person who has bought an article from a salesman in the past is responsible if the salesman then steals something similar in the hope of making a second sale. See, e.g., United States v. Hicks, 798 F.2d 446, 448-49 (11th Cir.1986) (admission of statement made to person who had been a witness in other cases but who was incarcerated with defendant by “luck or happenstance" does not violate sixth amendment).

Watson’s reliance upon United States v. Sampol, 636 F.2d 621, 630-42 (D.C.Cir.1980), in which we said that the informant was a government agent regardless of when the Government first became aware of his discussions with the defendant, is misplaced. The informant in Sampol had been “accepted by the government as an informant at large whose reports about any criminal activity would be gratefully received”; “the government trolled in the jail, using [him] as bait, and was ready to net any unwary inmate who rose to the lure.” Id. at 638. The case before us is a very different kettle of fish. Young was in jail solely because of his own misadventure; he was not there in order to gain information about Watson or any other prisoner, and he was neither instructed nor authorized to do so. Surely he hoped to gain or he would not have troubled himself even to listen to Watson, but the initiative was his, and he received no encouragement from the Government in pursuing it.

As for Watson’s related claim that Young posed as a lawyer, no discussion is necessary; even if it were relevant once it is established that Young was a lone ranger, we would not be impressed because Watson points to no evidence to support that contention. Thus, we affirm the trial court’s decision to allow Young to testify about his jailhouse conversations with Watson.

B. The Incident at Watson’s Garage

The trial court concluded that because Watson claimed that the cocaine found in his train compartment was put there by someone else, and disclaimed any involvement whatsoever with drugs, the evidence of drugs at the auto body shop was admissible as bearing upon his knowledge and his intent with respect to the cocaine in the company of which he was arrested. Federal Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Contrary to Watson’s claim, this rule does not automatically bar evidence of a bad act that occurred subsequent to the crime charged. See, e.g., United States v. Manner, 887 F.2d 317, 321-22 (D.C.Cir.1989). The temporal (as well as the logical) relationship between a defendant’s later act and his earlier state of mind attenuates the relevance of such proof, however. As we explained in United States v. Childs, 598 F.2d 169, 174 (1979), later acts are most likely to show the accused’s intent when “they are fairly recent and in some significant way connected with prior material events.” See also United States v. Gallo, 543 F.2d 361, 365 (D.C.Cir.1976).

Although the incident at Watson’s garage is perhaps less probative of intent than were the subsequent events in Childs and Gallo, we cannot say that it surpassed the limits allowed by Rule 404(b). Only recently, in Manner, we held that evidence of the defendant’s selling drugs ten weeks after the possession with the intent to distribute cocaine for which he was tried, “met the relevance standard of Rule 404(b).” 887 F.2d at 322. Here, about three months separated the subsequent incident involving cocaine, at Watson’s garage, from the possession of cocaine with intent to distribute for which Watson was tried. The close relationship between the acts to which Young testified and the actus reus alleged in the indictment, together with their reasonably close placement in time, is sufficient to satisfy the requirements of Rule 404(b). More specifically, Young’s testimony surely bore upon the probability that Watson had no knowledge of the cocaine distribution business and did not intend to sell drugs at the time of his arrest. Its relevance is even more obvious when one recalls Watson’s assertion that the drugs found in the train compartment did not belong to him and his negative responses during direct examination to the questions, “Are you involved with cocaine in any way?” and “Are you involved with drugs in any way?” The trial court did not abuse its discretion in reasoning that these claims raised the issue of Watson’s intent and knowledge, and that testimony about the incident at his family’s garage directly related to that issue, and in concluding that it was therefore admissible under Rule 404(b). Cf. United States v. Eaton, 808 F.2d 72, 75-76 (D.C.Cir.1987) (defendant’s testimony that “he was unfamiliar with drugs” gave the Government the “right to rebut that evidence through cross-examination” about other “bad acts”).

C. The Timing of a Request for an Instruction on Character Evidence

The Government concedes that a court must instruct the jury on character evidence (if, as here, there is such) when the defendant makes a timely request. The issue presently before us is therefore a narrow one: whether the trial court properly refused to give that instruction where the defendant did not request it until after closing arguments and the other jury instructions had been given.

Federal Rule of Criminal Procedure 30 states in relevant part:

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests.... The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.

The rule clearly requires the defendant to propose jury instructions before closing argument. See, e.g., United States v. Hernandez, 730 F.2d 895, 900 (2d Cir.1984).

Watson suggests that once the court exercised its discretion by asking the parties, after closing arguments and the agreed-upon instructions, whether they had any additional requests, it was somehow bound to grant any such request. He cites no authority for this proposition, however, apart from a case in which the Supreme Court, if indeed it reached the precise point at issue here — and it may charitably be read not to have gone so far — said nothing to comfort the defense. See Life Insurance Co. v. Francisco, 84 U.S. (17 Wall) 672, 679, 21 L.Ed. 698 (1873) (“No doubt a court may, notwithstanding the rule, in its discretion, receive prayers for instructions even after the general charge has been given to the jury, but neither party can claim as a right a disregard of the ordinary rules of practice in the court.”).

As there is no reason to think that a court “waives” the requirements of Rule 30 by asking the defendant if he has any last request for a jury instruction, we think it is within the trial court’s sound discretion whether to honor such a request. Absent abuse of that discretion so as to amount to “plain error,” we will not overturn the trial court’s decision; in effect, we must treat the defendant’s point as the belated point it is, notwithstanding the trial court’s invitation and rejection, as if he were raising it for the first time on appeal. Cf. United States v. Debango, 780 F.2d 81, 84 (D.C.Cir.1986) (“Appellant ... did not object to the instructions below and consequently must demonstrate plain error.”); United States v. Douglas, 818 F.2d 1317, 1320 (7th Cir.1987) (“Failure to meet the requirements of Rule 30 means that this court will analyze a defendant’s objections on appeal under a ‘plain error’ standard.”).

We do not reverse a conviction for plain error unless the error is so substantial that “it affects the very integrity of the trial process.” United States v. Blackwell, 694 F.2d 1325, 1341 (D.C.Cir.1982). That can be the case only “when the weakness of the evidence against defendant indicates that a serious injustice was done or when there are errors that ‘seriously affect the fairness, integrity, or public reputation of judicial proceedings.’ ” United States v. Baker, 693 F.2d 183, 187 (D.C.Cir.1982) (quoting United States v. Brown, 634 F.2d 819, 829 (5th Cir.1981)); see also United States v. Reed, 476 F.2d 1145, 1147 n. 1 (D.C.Cir.1973) (failure to give character evidence instruction implicated no substantial rights “in the light of the strong proofs of guilt adduced by the prosecution and the insubstantial character of the character testimony”).

In this case the district court’s refusal to give the late-requested instruction on character evidence could not constitute plain error in light of the strong evidence against the defendant. Recall that Watson was the lone occupant of a train compartment in which the police found a commercial quantity — indeed, more than a kilogram — of cocaine, and that he later admitted to a fellow inmate that he had been bringing the cocaine back from Miami when he was caught. We can hardly conclude, therefore, that the omission of the instruction “probably changed the outcome of the trial.” Douglas, 818 F.2d at 1320.

III. Conclusion

Watson’s other claims lack any merit and warrant no discussion.^* Consequently, his conviction is

Affirmed.

* Our dissenting colleague maintains that Watson's sixth amendment right to counsel, as explicated in Massiah, was violated during his post-indictment encounter with Young at the garage. It would be quite inappropriate for the court to address this issue. Regardless of whether Watson asserted at trial that the introduction of Young’s testimony about the incident at the garage violated his rights under Massiah, he has failed to raise that issue on appeal. Watson’s only Massiah claim relates to his jailhouse conversation with Young; his only objection to the garage incident is that it violates Rule 404(b). Indeed, when given the opportunity at oral argument, Watson’s counsel declined to make the point now so warmly pressed on his behalf in the dissent.

The Court: Did the objection to his, to Young’s testimony rest in any part on the Philadelphia encounter where he was more clearly, could be portrayed as a government agent?

Appellant: Well, there were two objections to his testimony. One involved the 404(b) nature of his testimony, and the other involved, which involved the incident in Philadelphia. The other involved the Massiah incident, or what we allege to be the Massiah incident, that occurred in the D.C. jail. The unwisdom of addressing an issue that

Watson does not raise on appeal is increased by the novelty of that issue in this circuit. The Supreme Court held in Maine v. Moulton, 474 U.S. 159, 180, 106 S.Ct. 477, 489, 88 L.Ed.2d 481 (1985), that "incriminating statements pertaining to pending charges are inadmissible at the trial of those charges” when the Government "knowingly circumventfs] the accused's right to the assistance of counsel.” There is a genuine issue whether the evidence obtained at Watson’s garage, which was introduced only in order to show motive and intent, "pertain[s] to the pending charges” within the meaning of Moulton. The courts to which it has been presented have divided on this question. Compare United States v. Anderson, 523 F.2d 1192 (5th Cir.1975) (reversing conviction) with United States v. Moschiano, 695 F.2d 236 (7th Cir.1982) (affirming conviction) and Mealer v. Jones, 741 F.2d 1451, 1453 n. 1 (2d Cir.1984) (finding a Massiah violation, but suggesting in dictum that it would not do so on the facts of this case). None of these cases is cited or discussed in either of appellant's briefs nor, of course, did the Government address an issue not raised against it.