U.S. v. D'Anjou

• Decision Date: 16 February 1994
• Docket Number: No. 93-5020,93-5020
• Citation: 16 F.3d 604
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Augustine D'ANJOU, a/k/a Dennis Dennison, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 604

16 F.3d 604

UNITED STATES of America, Plaintiff-Appellee, v. Robert Augustine D'ANJOU, a/k/a Dennis Dennison, Defendant-Appellant.

No. 93-5020.

United States Court of Appeals Fourth Circuit.

Argued Oct. 29, 1993.

Decided Feb. 16, 1994.

ARGUED: Edward A. Fiorella, Jr., Harkey, Fletcher, Lambeth, Nystrom & Fiorella, Charlotte, North Carolina, for Appellant. Robert James Conrad, Jr., Assistant United States Attorney, Charlotte, North Carolina, for appellee. ON BRIEF: Jerry W. Miller, United States Attorney, Charlotte, North Carolina, for appellee.

Before ERVIN, Chief Judge, RUSSELL, Circuit Judge, and CLARKE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

ERVIN, Chief Judge:

Robert D'Anjou was charged with narcotics and firearms violations in two counts of a twenty-seven count indictment returned July 11, 1991. ¹ Immediately prior to trial, the firearms count was dismissed on motion of the United States, and D'Anjou was tried and convicted on the remaining count. He subsequently was sentenced to life imprisonment pursuant to the federal sentencing guidelines, and now appeals numerous issues relating to his arrest, trial and sentencing. We affirm.

I

The facts underlying the indictment and conviction need only be briefly sketched. Brian Mahon, a Guyanese national, arrived in the United States in 1985 and took up residence in New York. In 1989, Mahon began selling drugs. He estimates that between 1989 and 1990, he sold approximately four kilograms of crack cocaine in New York. Because the police began to crack down on the drug dealing in his neighborhood, however, in October 1990 Mahon decided to relocate from Brooklyn, New York, to Charlotte, North Carolina. His girlfriend, Telisha Watkins, preceded him to Charlotte, and upon his arrival she introduced him to several people in Charlotte involved in the drug trade. Mahon and Watkins set up their drug business along North Tryon street, but in November relocated to the Consort Inn. Although another drug dealer, Johnny Todd, already was established at the Consort Inn, Mahon entered into agreements with him and the owner to allow Mahon to use the Inn as his base.

To operate his drug ring, Mahon relied largely on fellow Guyanese nationals with whom he had worked in Brooklyn. Mahon brought down two people from New York in November, and later, around New Year's, he brought down D'Anjou. D'Anjou knew that Mahon had moved to Charlotte, and he asked Mahon approximately three times between October and December to bring him down so he could work with him. Once Mahon felt that he had established some stability in Charlotte, he told D'Anjou that he could come down and help distribute the drugs and collect the money. D'Anjou then moved to Charlotte, bringing some quantity of crack with him from New York.

Upon his arrival in Charlotte, D'Anjou moved in with Mahon and Watkins in an apartment on Miriam Avenue and joined them in coordinating the drug distribution enterprise. Mahon set up two "stash houses" (central repositories for guns, drugs and money) on Miriam Avenue and at Countryside Apartments that provided more safety and quiet and involved less traffic than the rented rooms at the Consort Inn. D'Anjou lived at both locations over the next six months and was principally responsible for managing them. D'Anjou assisted in cutting and bagging the crack into retail quantities. He and Watkins also assisted Mahon in supplying the dealers at the Consort Inn, which involved giving them new quantities while they gave D'Anjou the money earned on the completed sales. Sometime during the spring, Mahon sent D'Anjou to New York to pick up a resupply of drugs, and D'Anjou returned with five ounces of crack.

On May 29, 1991, the United States Postal Service interdicted a package of drugs that had been sent from New York to the stash house on Miriam Avenue. After it was delivered to the apartment, the police arrested Watkins, who received the package. Now cooperating with the arresting authorities, Watkins called Mahon's beeper number, and he arrived and took the package from her and was also arrested. D'Anjou was not present at the time of the arrest and the police were unaware of Mahon's ring at the Consort Inn or of D'Anjou's involvement in it.

Following Mahon's arrest and confinement, the drug ring at the Consort Inn continued operating. Mahon hoped to be released on bond, and spoke with both Watkins and D'Anjou on the phone to determine the status of the operation. In his conversation with Watkins he learned that a number of his people continued to sell for him, first depleting the supply of crack on hand at the time of Mahon's arrest and then receiving supplies from John Clinton Chase ("Rossi"), who originally had been Mahon's New York supplier until it became too "hot" in New York, at which time Mahon had brought him down to Charlotte and Rossi set up a sister organization at the Consort Inn.

Within a short period of time, however, Mahon's organization began to come apart in the absence of its leader. On June 12, 1991, a fight erupted between the Mahon/Rossi ring and the other group of dealers at the Consort Inn, led by Johnny Todd. Todd himself was shot in the hip during this incident. D'Anjou was present at the scene, although the testimony regarding his involvement in the shooting is conflicting. Mahon testified at trial that D'Anjou told him in their telephone conversation that he was present and that he was armed. Following the shooting, Rossi and D'Anjou left before the police arrived. The following day, police investigators discovered weapons in the vents of rooms at the Consort Inn, and three of Mahon's men were arrested on weapons and drug charges. As various members of Todd's and Mahon's rings were arrested and began to cooperate, the rings disintegrated. D'Anjou was arrested on July 10, 1991. The procedural battles that form the heart of this case began immediately thereafter.

II

D'Anjou raises two issues on appeal relating to events that occurred prior to trial. First, he argues that he was improperly interrogated in violation of his constitutional rights and that the admission of his statement was thus reversible error; alternatively, he argues that this evidence was admitted in violation of the Federal Rules of Evidence. Second, he argues that the district court improperly refused his request to compel the government to disclose the identity of certain confidential informants. We find these two contentions to be without merit for the reasons that follow.

A

At the time of his arrest, D'Anjou was taken to the Charlotte Police Department for booking. He was interviewed there by Edward Brigham, a special agent for the United States Immigration and Naturalization Service assigned to investigate administrative and criminal violations of the Immigration and Nationality Act, with specific regard to the actions of criminal organizations involving aliens and narcotics. Brigham began the interview with D'Anjou by requesting standard background information concerning D'Anjou's name, citizenship, place of birth, address, and length of time in Charlotte. D'Anjou provided false information to each of these questions. Following this initial questioning, Brigham read D'Anjou his Miranda rights, and D'Anjou claimed his right to remain silent. The interview ceased.

D'Anjou now argues that this questioning violated his Sixth Amendment right to counsel and his Fifth Amendment right against self-incrimination and the prophylactic procedural shield of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He claims that his answers should have been suppressed. Under the Sixth Amendment,

absent a valid waiver, the defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches.

Moran v. Burbine, 475 U.S. 412, 428, 106 S.Ct. 1135, 1144, 89 L.Ed.2d 410 (1986). However, just as with the defendant in Burbine, D'Anjou's claim fails because this questioning occurred prior to the point at which the Sixth Amendment right attached. In both instances, the questioning occurred immediately subsequent to the defendant's arrest and prior to arraignment. Because the underlying purpose of the Sixth Amendment right to counsel is to assure that the criminal defendant is not forced to face " 'the prosecutorial forces of organized society' " alone, id. at 430, 106 S.Ct. at 1145 (quoting Maine v. Moulton, 474 U.S. 159, 170, 106 S.Ct. 477, 484, 88 L.Ed.2d 481 (1985)), the right attaches as the process shifts from investigation to prosecution, and not before.

The Miranda challenge is more difficult, and presents an issue of first impression in this circuit. The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established a series of prophylactic rules that apply to all custodial interrogation as a way of combating the inherently coercive effects of such a setting upon a person's ability to claim this constitutional right. However, before the Miranda rights attach, there must be custodial interrogation.

The issue here is whether the INS and ATF questioning constituted interrogation for Miranda purposes. As a general rule, interrogation has been defined for this purpose as express questioning or its functional equivalent, which includes

"any words or actions on the part of the police (other than those normally attendant to arrest and custody ) that the police should know are reasonably likely to elicit an incriminating response from the suspect."

Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S.Ct. 2638, 2649, 110 L.Ed.2d 528 (1990) (plurality opinion) (quoting Rhode Island v. Innis...