United States District Court, D. Alaska
SEALED ORDER REGARDING MOTION TO SUPPRESS (BRIAN
LONG)
SHARON
L. GLEASON UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 297-1 is defendant John Pearl Smith,
II's sealed Motion to Suppress All Statements and
Evidence Obtained by Brian Long in Violation of Smith's
Sixth Amendment Right to Counsel. The government filed an
opposition.[1] The parties submitted additional briefing
in their notices of issues prior to an evidentiary
hearing.[2]The Court held an open evidentiary hearing
on June 10, 2019.[3] The parties filed their written closing
arguments on July 12, 2019.[4] The government filed its written
rebuttal argument on July 19, 2019.[5]
I.
Relevant testimony
Mr.
Smith was jailed beginning June 28, 2016, on an indictment
charging him with being a felon in possession of firearms on
June 22, 2016.[6] The First Superseding Indictment-which
added homicide, robbery, drug, and firearms charges dating
from September 2015, May 11, 2016, and June 5, 2016-was
issued by the Grand Jury on March 21, 2017.[7] At all relevant
times, Mr. Smith was housed at the Anchorage Correctional
Complex (ACC).
While
at the ACC, Mr. Smith met Brian Long, who was in custody at
the ACC on child pornography charges beginning in the summer
of 2016.[8] Mr. Long told Mr. Smith that he was in
custody for bringing marijuana onto a military
base.[9] Mr. Smith, who was generally cautious
about speaking to other inmates at the ACC, seemingly bonded
with Mr. Long over Mr. Long's military service and their
shared interests in firearms and
outdoorsmanship.[10]
During
the course of their ostensible friendship, Mr. Smith
purportedly made inculpatory statements about the homicides,
about firearms that he had hidden, about plans to frame a
third party for the homicides, about plans to tamper with or
harm witnesses, about plans to escape from the ACC, and about
some “bond” procedure that Mr. Smith believed was
a legal procedure that could get his case dismissed.
Unbeknownst
to Mr. Smith, Mr. Long was working with the FBI and acting as
a confidential informant. Mr. Long first began providing
information to the FBI during the FBI's investigation
into drugs being introduced into the ACC and possible
corruption at the ACC.[11] After meeting with Mr. Long in
December of 2016, FBI Agent Richard Fuller
“opened” Mr. Long as a confidential source on
January 9, 2017.[12] Agent Fuller acted as Mr. Long's
handler.[13] Agent Fuller testified that the first
time Mr. Long mentioned Mr. Smith to him was during a meeting
on January 18, 2017, when Mr. Long disclosed that Mr. Smith
was devising a plan to escape from the ACC.[14] Agent Fuller
had no prior knowledge of Mr. Smith and was not interested in
him because he did not appear to be involved with bringing
drugs into the ACC.[15] At the January 18, 2017 meeting, Agent
Fuller did not advise Mr. Long not to talk to Mr. Smith any
longer.[16]
On
February 1, 2017, Mr. Long again met with Agent Fuller. Mr.
Long disclosed that Mr. Smith and another inmate had
discussed how to get drugs into the ACC, that Mr. Smith was
planning to escape from the ACC, and that Mr. Smith was
“associated with a group who hunt down drug dealers and
kill them.”[17] Agent Fuller testified that at this
meeting he did not “direct Mr. Long to go get any
additional information about John
Smith[.]”[18]
On
February 15, 2017, Mr. Long again met with Agent Fuller. Mr.
Long disclosed that Mr. Smith told him that the ATF agents
who had searched Mr. Smith's residence had failed to
identify a working gun (believing it to be a fake gun) and
had missed finding money and drugs located in a hidden
compartment in the residence.[19]
On
March 22, 2017-the day after the Grand Jury issued the First
Superseding Indictment and the day that Mr. Smith was
arraigned on the First Superseding Indictment-Mr. Long met
with Agent Fuller, DEA Agent Michael Burke, government
attorneys, and Mr. Long's defense counsel.[20] Unlike the
prior meetings between Mr. Long and Agent Fuller, this
meeting was specifically arranged so that Mr. Long could give
the government information about Mr. Smith.[21] At the
meeting, Mr. Long disclosed a number of inculpatory
statements purportedly made by Mr. Smith regarding the
homicides and firearms that ATF agents had missed while
searching Mr. Smith's residence.[22] Agent Fuller testified
that he believed that Mr. Smith had conveyed this information
to Mr. Long at “some point in the
past.”[23]
On
April 14, 2017, Mr. Long again met with FBI Agent Fuller, DEA
Agent Burke, government attorneys, and Mr. Long's defense
counsel.[24] During this meeting, Mr. Long disclosed
additional inculpatory statements purportedly made by Mr.
Smith regarding the homicides and the guns that Mr. Smith had
received from his co-defendant.[25] Agent Fuller's notes
from this meeting reflect that the attorneys from the U.S.
Attorney's Office admonished Mr. Long that he was not to
ask Mr. Smith questions about his pending case.[26]
On May
18, 2017, Mr. Long met with FBI Agent Jesse Hogan, DEA Agent
Burke, government attorneys, and Mr. Long's defense
counsel.[27] Agent Burke's notes from this
meeting reflect that Mr. Long was told not to ask Mr. Smith
questions but to listen for what information Mr. Smith would
volunteer.[28] The notes also reflect that Mr. Long was
“admonished to only listen.”[29]
Between
July 6 and July 12, 2017, after Mr. Long was released from
custody, he received phone calls from Mr.
Smith.[30] Because Mr. Smith was still in custody
at the ACC, these calls were recorded on the ACC's phone
system.[31] On July 12, 2017, Mr. Smith called Mr.
Long and “wanted him to get some documents and possibly
assist him with his current legal
issues.”[32] That same day, Mr. Long called Agent
Fuller to discuss Mr. Smith.[33] Agent Fuller then instructed
Mr. Long to no longer answer any calls from Mr.
Smith.[34]
Mr.
Smith now moves to have his statements to Mr. Long suppressed
as having been gathered in violation of his Sixth Amendment
right to counsel.
II.
Legal standards
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.”[35] This right to the assistance of counsel
exists not only at trial, but during pretrial phases
“when consultation, thorough-going investigation and
preparation are vitally important . . .
.”[36] Thus, “[o]nce a defendant's
Sixth Amendment right to counsel has attached, the government
is forbidden from ‘deliberately eliciting'
incriminating statements from the defendant. This prohibition
has been extended to the use of jailhouse informants who
relay incriminating statements from a prisoner to the
government.”[37]
One way
the government deliberately elicits information from a
defendant is when its jailhouse informant asks questions or
stimulates conversation about the charged
crimes.[38] The government can also deliberately
elicit information “if it intentionally creates a
situation likely to induce an indicted defendant to make
incriminating statements without counsel's
assistance.”[39] However, if the defendant makes
“unsolicited” and “spontaneous”
statements about a charged crime, there is no Sixth Amendment
violation, because “the primary concern of the
Massiah line of decisions is secret interrogation by
investigatory techniques that are the equivalent of direct
police interrogation.”[40]
To
support a finding of a Sixth Amendment violation in cases
such as the one here, a defendant must show (1) that at the
time of his statements about alleged crimes his right to
counsel had attached as to the crimes actually charged; (2) a
jailhouse informant was acting as an agent of the government
when the informant obtained the statements from the
defendant; and (3) that the informant “made some effort
‘to stimulate conversations about the crime
charged'” or that the government otherwise
intentionally created a situation likely to induce the
defendant to make incriminating statements.[41]
III.
Application to Mr. Smith's case
A.
Mr. Smith's right to counsel for the added charges
attached on March 21, 2017.
Mr.
Smith was indicted on murder, robbery, drug, and firearms
charges (the “added charges”) on March 21,
2017.[42] The Sixth Amendment right to counsel is
offense specific; it “attaches only to charged
offenses.”[43] Thus, a defendant has “a right to
counsel only on the offenses for which he ha[s] been indicted
. . . .”[44] The right “does not attach until a
prosecution is commenced, that is, at or after the initiation
of adversary judicial criminal proceedings-whether by way of
formal charge, preliminary hearing, indictment, information,
or arraignment.”[45] Because an indictment initiates
adversarial judicial proceedings, [46] Mr. Smith's right to
counsel for the added charges attached on March 21, 2017,
when the Grand Jury returned the First Superseding
Indictment. Any communications between Mr. Smith and Mr. Long
prior to that date, regardless of how they were initiated, do
not violate Mr. Smith's Sixth Amendment right to counsel
as to the added charges in the First Superseding Indictment.
B.
Mr. Smith's right to counsel on the felon in possession
charge attached prior to his entry into the ACC.
Mr.
Smith's right to counsel on the felon in possession
charge had already attached by the time he was booked into
the ACC because he had already been indicted on that charge.
Mr. Smith asserts that “statements obtained by the
Government in violation of the defendant's Sixth
Amendment right to counsel may not be used against him at
sentencing on the charge upon which the right to counsel had
attached” and thus “every statement Long reported
to the Government was obtained in violation of Smith's
right to counsel under the Sixth
Amendment.”[47] Mr. Smith also maintains that if he is
convicted for the felon in possession charge, his purported
statements to Mr. Long could constitute obstruction of
justice, they could be used as evidence at the sentencing on
that charge, they could increase his sentencing range, or
they could be used to reject mitigating
factors.[48] According to Mr. Smith, because his
statements to Mr. Long could be used against him at
sentencing for the felon in possession charge, and because
his right to counsel on that charge had attached by the time
he made the statements, the Supreme Court's holding in
Estelle v. Smith requires that all of the statements
be suppressed as having been obtained in violation of Mr.
Smith's Sixth Amendment right to counsel.[49]
However,
having one's right to counsel attach and having one's
Sixth Amendment rights violated are not necessarily
coinciding events. Only statements obtained from a government
agent who made some effort “to stimulate conversations
about the crime charged”[50] or obtained after the
government otherwise “intentionally create[s] a
situation likely to induce the defendant to make
incriminating statements without counsel's
assistance”[51] are violative of the Sixth Amendment.
Estelle involved a capital defendant whose right to
counsel had attached, but his defense counsel were not
notified prior to a doctor performing a psychiatric
examination at the court's direction.[52] The doctor
later testified as a government witness during the penalty
phase of trial.[53] The Supreme Court held that the
defendant “was denied the assistance of his attorneys
in making the significant decision of whether to submit to
the examination and to what end the psychiatrist's
finding could be employed.”[54] Thus,
Estelle's prohibition on the use of
defendant's statements at sentencing is contingent on a
finding of a Sixth Amendment violation. Estelle is
not controlling here because, as discussed infra,
there is no evidence that the government or its agent Mr.
Long stimulated conversations about any pending
charges-including the felon in possession charge-or created a
situation likely to induce Mr. Smith to make incriminating
statements. Without either of these actions, there is no
Sixth Amendment violation if Mr. Smith's purported
statements are introduced at the trial on the felon in
possession charge or, in the event of a guilty verdict on
that charge, if they are used against him at sentencing.
C.
Mr. Long was acting as an agent of the government.
When
Mr. Long was “opened” as a confidential source,
Agent Fuller provided Mr. Long with a set of standard FBI
admonishments for confidential sources.[55] These
admonishments made clear that the FBI could not promise
leniency in any prosecution against Mr. Long.[56] Mr. Long was
also not promised any financial benefit. However, “it
is the relationship between the informant and the
[government], not the compensation the informant receives,
that is the central and determinative
issue.”[57] Thus, a confidential informant can be a
government agent even without an express agreement that the
informant will be compensated for his services if there is
“sufficient undisputed evidence to show that the
[government] made a conscious decision to obtain [the
informant's] cooperation and that [the informant]
consciously decided to provide that
cooperation.”[58]
The
Court finds that the government consciously decided to obtain
Mr. Long's cooperation, as demonstrated by Agent Fuller
opening Mr. Long as a confidential informant, reviewing the
standard admonishments with him, meeting with him repeatedly,
and having Mr. Long meet with government agents and
government attorneys specifically about Mr. Smith. The Court
finds that Agent Fuller and the U.S. Attorney's Office
knew that Mr. Long hoped to receive leniency if he provided
useful information.[59] The Court also finds that Mr. Long
cooperated with the government, both in the investigation of
drugs in the ACC and in the investigation of Mr. Smith, with
the hope of receiving leniency.[60]Accordingly, the Court
finds that Mr. Long was acting as an agent of government
beginning no later than January 9, 2017.
D.
Mr. Long did not deliberately elicit statements from Mr.
Smith.
When
Agent Fuller gave Mr. Long the standard set of confidential
source admonishments, he did not include the optional
admonishment to not solicit from inmates with pending
criminal charges information regarding those charges, nor did
he advise Mr. Long not to interfere with attorney-client
relationships.[61] The Court notes that Mr. Long and Agent
Fuller's testimony on this point is in conflict: Mr. Long
testified that during their first meeting Agent Fuller told
him “not to go in there and ask anybody
anything.”[62] Agent Fuller testified that he did not
give Mr. Long this admonishment.[63] In resolving this
conflict, the Court finds Agent Fuller credible. The Court
finds that Agent Fuller did not personally admonish Mr. Long
not to ask Mr. Smith questions about crimes for which he had
already been charged.[64]
However,
Mr. Long testified that government lawyers attending meetings
with him tried “to make sure that whatever information
I was getting I was not asking for” and that he heard
that “over and over again.”[65] Mr. Long
testified that “everybody always made sure to tell me
not to ask anything.”[66] Agent Fuller testified that
other people in meetings with Mr. Long told him not to ask
Mr. Smith about the pending homicide charges.[67] Agent Burke
testified that at the March 22, 2017 meeting, an AUSA
“admonished Mr. Long to be a listener, not to actively
question him” and that the admonishments “were
fairly expansive. It was very direct by [the AUSA] to Mr.
Long that it is very important that he be a listener, not to
solicit any information . . . .”[68] Agent Burke
also testified that Mr. Long was given similar admonishments
at the April and May 2017 meetings.[69] Most importantly, Mr.
Long testified that asking questions about what other inmates
are charged with is disfavored because “if somebody is
asking you questions a lot, then you're afraid
they're probably against you and trying to get
information on you” and that he “didn't ask
any questions about anything” to Mr.
Smith.[70]
“[A]
defendant does not make out a violation of that 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.”[71] There is no evidence that Mr. Long
initiated conversations with Mr. Smith about the charged
crimes or asked Mr. Smith about the charged crimes. The Court
notes that Mr. Smith purportedly made incriminating
statements to another jailhouse informant, G.C.[72] Mr.
Smith's inclination to discuss the crimes with G.C. makes
it more likely that he also volunteered information about the
crimes to Mr. Long. There is no evidence in the record to
support a finding that Mr. Long deliberately elicited
statements from Mr. Smith about the charged crimes.
E.
Neither the government nor its agent Mr. Long deliberately
created a situation likely to induce Mr. Smith into making
incriminating statements about the charged crimes.
In
United States v. Henry, the Supreme Court held that
a Sixth Amendment violation occurs when the government
“intentionally create[s] a situation likely to induce
[the defendant] to make incriminating statements without the
assistance of counsel . . . .”[73] Although an
informant's actions-deliberately eliciting statements
about the charged crimes-can create a Sixth Amendment
violation, when this does not occur “the determinative
issue is not the informant's subjective intentions, but
rather whether the federal law enforcement officials created
a situation which would likely cause the defendant to make
incriminating statements.”[74] Mr. Smith thus correctly
asserts that “[t]he issue is whether the Government,
working through Long, intentionally created a situation
likely to induce a defendant into making incriminating
statements-not whether the informant was a ‘passive
listener.'”[75]
Mr.
Smith maintains that “Long, facing imprisonment more
than 10 years, was induced to gather information in the ACC
West with the expectation that he would reduce his
sentence.”[76] As discussed supra, no
government agent or government attorney instructed Mr. Long
to elicit statements from Mr. Smith.[77] Mr. Long was not promised
any plea deals, financial rewards, or other consideration for
information he could provide about Mr. Smith.[78] Although Mr.
Long desired and reasonably expected to gain some benefit for
working as an informant, this does not equate to an informant
who is paid “on a contingent-fee basis . . . to be paid
only if he produced useful information” and is
“paid for furnishing the
information.”[79]
Mr.
Smith also asserts that “[b]y allowing Long to remain
on the same living unit as Smith . . . the Government
fostered a situation likely to induce Smith to make
incriminating statements in violation of his Sixth Amendment
right to counsel.”[80] The Court is unable to determine
precisely when Mr. Long and Mr. Smith became cellmates,
except that they were not cellmates in January of 2017 but
they were cellmates by the time of the April 14, 2017
meeting.[81] Mr. Long had not asked to be housed in
the same ACC mod as Mr. Smith nor asked to be his
cellmate.[82] Although Mr. Long was never moved out of
the ACC mod where he was housed along with Mr. Smith, Agent
Fuller had not asked to have Mr. Smith celled with Mr.
Long.[83] Mr. Long testified that Mr. Smith had
asked to move into his cell, purportedly because Mr.
Long's cell had a window through which Mr. Smith believed
he could escape.[84] There is no evidence that a government
agent or government attorney involved in the investigation or
prosecution of Mr. Smith's case or involved in Mr.
Long's role as an informant requested to have Mr. Smith
and Mr. Long housed together in the same ACC unit or in the
same cell.[85]
Mr.
Smith also contends that Mr. Long “used their shared
interest in weapons and camping to establish the relationship
. . . joined Smith in the exercise yard[, a]nd, in order to
keep the relationship in place after his release, Long agreed
to assist Smith on his quest to acquire copies of
‘bonds' that Smith thought would secure his
release.”[86] Agent Fuller testified that he does not
tell informants not to befriend other inmates, or not to talk
about common interests, or to not be nice to them, or to not
share their commissary with them, or not to cell with
them.[87] Agent Fuller and Agent Burke testified
that here, they did not tell Mr. Long not to befriend Mr.
Smith.[88] Mr. Long did not discourage Mr. Smith
from discussing the military, hobbies, or “bonds”
with him.[89] Mr. Long testified that he
“didn't try to do anything to overcome” any
reluctance that Mr. Smith may have had about speaking with
him, but that he never actively discouraged Mr. Smith's
friendship and never took any steps to stop their friendship
from developing.[90] However, these actions- in the absence
of any additional government or informant effort-did not
exploit any friendship between Mr. Smith and Mr. Long and do
not equate to deliberately creating a situation likely to
induce Mr. Smith into making incriminating
statements.[91]
Mr.
Long testified that before he was released from the ACC, he
told Mr. Smith to stay in touch with him so that Mr. Long
could help Mr. Smith with his
“bonds.”[92] Agent Fuller testified that he did help
facilitate conversation between Mr. Smith and Mr. Long by
getting Mr. Long's cell phone number registered in the
ACC's phone system to receive outgoing calls from inmates
and by facilitating having Mr. Long mail Mr. Smith a letter
containing his cell phone number.[93] Agent Fuller testified
that at that point, the interest was about Mr. Smith
“trying to either escape or tamper with witnesses. We
were trying to gather additional information concerning
that.”[94] Although these acts assisted in
continuing the line of communication between Mr. Smith and
Mr. Long, they are not “the equivalent of direct police
interrogation.”[95]
F.
There is insufficient evidence to determine when Mr. Smith
made the statements to Mr. Long.
As
noted by defense counsel in her opening statement at the
evidentiary hearing, Agent Fuller “has filed reports,
but they don't contain any dates on which Mr. Long states
he got the information [from Mr. Smith].”[96] Agent Fuller
testified that he did not know when Mr. Long obtained details
about the homicides from Mr. Smith, but that at least as of
March 22, 2017, his understanding was that the conversations
between Mr. Long and Mr. Smith had occurred at “some
point in the past.”[97] Mr. Long also testified that
he did not “have precise dates for anything” and
thus did not know what dates Mr. Smith purportedly made
statements to him regarding the homicides.[98]
Mr.
Long testified that he did not bring up Mr. Smith's name
to Agent Fuller until after Mr. Smith made statements about
the homicides to him, meaning that at least some of Mr.
Smith's purported statements about the homicides were
made prior to January 18, 2017.[99] Mr. Long also testified
that when Mr. Smith initially began talking with him about
the homicides, Mr. Smith had not yet been indicted for the
homicides and was only charged with being a felon in
possession, meaning that at least some of the purported
statements were made prior to March 21, 2017.[100] Mr. Long
did recall that the conversations with Mr. Smith where Mr.
Smith hinted that Mr. Long should kill a government witness
and Mr. Smith discussed hiding items in moss beds occurred
after Mr. Smith was indicted for the homicides, meaning that
they were made after March 21, 2017.[101]
That
multiple government agents and government attorneys did not
clarify from Mr. Long when Mr. Smith made the
purported statements is curious, particularly in light of the
government attorneys' focus on ensuring that Mr. Long was
complying with caselaw mandates. Because Mr. Long's
reports of Mr. Smith's purported statements changed over
time, the Court assumes that some of Mr. Smith's
inculpatory statements were made after his right to counsel
on the added charges attached on March 21, 2017. However,
because the Court has found that Mr. Long neither
“deliberately elicited” statements from Mr. Smith
regarding the charged crimes nor “stimulated
conversations about the crime[s] charged” and that the
government did not deliberately create a situation likely to
induce Mr. Smith to make incriminating statements about the
charged crimes, the precise timing of Mr. Smith's
purported statements does not alter the conclusion that there
has been no Sixth Amendment violation.
Mr.
Smith has not established that, after his right to counsel
attached on the felon in possession charge or the charges
added in the First Superseding Indictment, the government
deliberately or intentionally created a situation which would
likely cause him to make an incriminating statement. He has
also not established that Mr. Long (or the government) took
any action to deliberately elicit incriminating statements
about the charged crimes, including the felon in possession
charge. Thus, Mr. Smith has not established a Sixth Amendment
violation.
In
light of the foregoing, IT IS ORDERED that the motion at
Docket 297-1 is denied. This order shall remain sealed for
seven days before being made public.[102] If either
party seeks to have this order redacted or to have it remain
sealed for longer than ...