U.S. v. Johnson, s. CR 00-3034-MWB, CR 01-3046-MWB.
| Court | United States District Courts. 8th Circuit. Northern District of Iowa |
| Citation | 225 F.Supp.2d 1022 |
| Docket Number | Nos. CR 00-3034-MWB, CR 01-3046-MWB.,s. CR 00-3034-MWB, CR 01-3046-MWB. |
| Parties | UNITED STATES of America, Plaintiff, v. Angela JOHNSON, Defendant. |
| Decision Date | 13 August 2002 |
v.
Angela JOHNSON, Defendant.
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Patrick J. Reinert, Charles J. Williams, U.S. Attorney's Office, Cedar Rapids, IA, for Plaintiff.
Alfred E. Willett, Terpstra, Epping & Willett, Cedar Rapids, IA, Dean A. Stowers, Rosenberg, Stowers & Morse, Des Moines, IA, Thomas P. Ferichs, Frerich Law Office PC, Waterloo, IA, Patrick J. Berrigan, Watson & Dameron, LLP, Kansas City, MO, Robert R. Rigg, Des Moines, IA, for Defendant.
MEMORANDUM OPINION AND ORDER REGARDING GOVERNMENT'S AMENDMENT TO NOTICE OF INTENT TO USE EVIDENCE AND DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
BENNETT, Chief Judge.
TABLE OF CONTENTS
I. INTRODUCTION ...................................................................1031
A. Factual Background ..........................................................1031
1. The first indictment and Johnson's arrest ................................1031
2. The informant and his "deliberate elicitation" of incriminating
statements .............................................................1032
3. The second indictment ....................................................1033
B. Framing Of The Suppression Issues ...........................................1034
1. The original notice of intent to use evidence ............................1034
2. The amended notice of intent to use evidence .............................1034
II. LEGAL ANALYSIS..................................................................1035
A. Preliminary Issues ..........................................................1036
1. Nature of dispute and burden of proof ....................................1036
2. "Ripeness" issues ........................................................1037
a. Effect of consolidation of trials .....................................1037
b. Effect of rulings on motions for a bill of particulars and to
dismiss indictment .........................................................1038
B. Scope Of The Right To Counsel Under Moulton .................................1039
C. The "Texas v. Cobb" or "Blockburger" Issue ..................................1040
1. Texas v. Cobb ............................................................1040
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a. The question and the holding ..........................................1040
b. The starting point: McNeil v. Wisconsin ...............................1041
c. Brewer and Moulton ....................................................1041
d. Rejection of dire predictions .........................................1042
e. Blockburger and the definition of "offense specific" ..................1042
f. Application of the test ...............................................1042
2. The Blockburger test .....................................................1043
a. The same or separate offenses? ........................................1043
b. "Lesser-included" offenses ............................................1045
c. "Predicate" offenses ..................................................1046
3. Application of Texas v. Cobb and Blockburger .............................1048
a. Johnson's "discussion/interrogation" argument .........................1048
b. Comparison of statutory elements ......................................1050
i. Elements of charges in the first indictment ......................1050
ii. Elements of charges in the second indictment .....................1057
iii. Are the offenses "the same" under Blockburger? ...................1060
c. Johnson's reliance on factual relationships ...........................1060
d. Johnson's reliance on Red Bird ........................................1062
e. "Predicate offense" analysis ..........................................1063
i. Is the § 371 conspiracy a predicate offense of the § 848
offenses? .......................................................1063
ii. Are the § 1512 offenses predicate offenses of the § 848
offenses? .......................................................1064
D. Johnson's Additional Grounds For Suppression ................................1067
III. CONCLUSION .....................................................................1068
This ruling involves the "second front" in a battle over whether the constitutional rights of a defendant accused of crimes carrying the federal death penalty were violated by a jailhouse informant's acquisition of self-incriminating statements from the defendant. The "first front" opened with the government's original notice of intent to use the informant's evidence as to the seven charges in the original indictment against the defendant and her responsive motion to suppress that evidence on the basis of a "Massiah violation"1 of her Sixth Amendment right to counsel. This court suppressed use of the jailhouse informant's evidence as to the crimes charged in the first indictment, see United States v. Johnson, 196 F.Supp.2d 795 (N.D.Iowa 2002) (Johnson I), ending the battle on the "first front," at least in this court. However, while the "Massiah issue" as to the charges in the first indictment was being litigated, the government effectively opened a "second front" by obtaining a second indictment against the defendant, which charged her with ten more death-penalty-eligible offenses, then filing an amended notice of its intent to use the jailhouse informant's evidence as to those "new" charges as well. In its ruling suppressing the informant's evidence as to the charges in the first indictment, the court left open for further briefing the question of whether that evidence should also be suppressed as to the charges in the second indictment. Battle was joined in earnest on that issue in a series of supplemental briefs, with a final skirmish by way of oral arguments, and the time is now ripe for the court to attempt to resolve that question.
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1. The first indictment and Johnson's arrest
Defendant Angela Johnson is being held in the Linn County Jail pending trial on two separate indictments involving charges that grew out of a continuing investigation of the criminal conduct, including drug trafficking, of Johnson's sometime boy-friend, Dustin Honken, and his associates. The first seven-count indictment against Johnson, in Case No. CR 00-3034-MWB, filed on July 26, 2000, charges her with five counts of aiding and abetting the murder of witnesses, one count of aiding and abetting the solicitation of the murder of witnesses, and one count of conspiracy to interfere with witnesses.2
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A warrant issued for Johnson's arrest on these charges on the same day that the indictment was filed. Johnson was arrested on this federal warrant by officers with the Iowa Department of Criminal Investigation (DCI) on July 30, 2000, the following Sunday. At the request of the Assistant United States Attorney who had obtained the indictment against her, the arresting officers placed Johnson in the Benton County Jail, in Vinton, Iowa, instead of the Linn County Jail, which is just blocks from the federal courthouse in Cedar Rapids, Iowa, where Johnson would ordinarily have been taken. On Monday, July 31, 2000, Johnson was arraigned before a federal magistrate judge in Cedar Rapids. At the time of her arraignment, while represented by court-appointed counsel, Johnson entered a plea of not guilty to all of the charges then made against her. At the arraignment on July 31, 2000, a detention hearing was set for August 2, 2000, and the Clerk of Court was directed to appoint other counsel to represent Johnson in further proceedings. Johnson was returned to the Benton County Jail where she remained incarcerated, except when she appeared in court, until October 3, 2000, when she was transferred to the Black Hawk County Jail in Waterloo, Iowa.
2. The informant and his "deliberate elicitation" of incriminating statements
When Johnson was placed in the Benton County Jail, Robert McNeese, the jailhouse informant in these cases, was already incarcerated there. McNeese was a longtime, thoroughly seasoned informant, known to government officials, including the prosecutor in Johnson's first case, to have a track record of obtaining incriminating evidence from associates and, more specifically, from fellow inmates, even
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where government officials were ignorant of the persons or incidents involved prior to McNeese's revelations. Moreover, unlike the circumstances in the Linn County Jail, male and female inmates in the small Benton County Jail, with its single cell-block, were able to have direct contacts, including face-to-face conversations and note-passing, some of which were facilitated by jail staff. True to form, while Johnson was incarcerated in the Benton County Jail, McNeese, acting as a government agent, deliberately elicited incriminating statements from her in the course of extensive contacts beginning shortly after Johnson arrived at the jail. Although McNeese told government officials that he was having contact with Johnson and obtaining incriminating statements from her in early August, no effective measures were taken to stop such contacts at any time, nor was McNeese given "listening post" instructions, which explained what he could and could not do to obtain information from Johnson without violating her Sixth Amendment rights, until September 11, 2000. McNeese's contacts with Johnson lasted until October 3, 2000, when McNeese ceased to be cooperative with investigators, at which time government officials pulled the plug by sending Johnson and McNeese to separate jails. The circumstances of Johnson's...
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U.S. v. Johnson, CR 00-3034-MWB.
...... Page 901 . witnesses, in violation of 18 U.S.C. § 371. The August 23, 2002, superseding indictment in the companion case, Case No. CR 01-3046-MWB, charges Johnson with five counts of killing witnesses while engaging in a drug-trafficking conspiracy ("conspiracy murder"), in violation of 21 ......
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United States v. Johnson, No. CR 00-3034-MWB (N.D. Iowa 8/13/2002), CR 00-3034-MWB.
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