U.S. v. Johnson

• Decision Date: 13 February 1992
• Docket Number: No. 90-2452,90-2452
• Citation: 954 F.2d 1015
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroy JOHNSON, Carol Diane Tilley, and Lester Johnson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1015

954 F.2d 1015

60 USLW 2578

UNITED STATES of America, Plaintiff-Appellee, v. Leroy JOHNSON, Carol Diane Tilley, and Lester Johnson Defendants-Appellants.

No. 90-2452.

United States Court of Appeals, Fifth Circuit.

Feb. 13, 1992.

Vance D. Paton, Corpus Christi, Tex. (Court-appointed), for Leroy Johnson.

Nancy M. Simonson, Canales & Simonson, Corpus Christi, Tex., for Lester Johnson.

Kathlyn G. Snyder, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal From the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and HIGGINBOTHAM, Circuit Judge, and KAZEN, ^* District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendants Lester Johnson, Leroy Johnson, and Carol Diane Tilley were convicted of multiple crimes arising from drug activities in a Corpus Christi hotel owned by Lester Johnson. Lester Johnson argues here that the government violated his Sixth Amendment right to counsel by sending a government informant to question him after he had been indicted and obtained counsel. We agree and reverse his convictions and remand for a new trial.

Leroy Johnson challenges the sufficiency of the evidence supporting his conspiracy conviction. The record reflects sufficient evidence to support his conviction. Tilley raises numerous grounds on appeal, all of which are without merit. We affirm both convictions.

I.

In 1986, after receiving reports of cocaine trafficking in the area, the Corpus Christi police department began surveillance of the Johnson's Rooms Motel, owned by Lester Johnson. They gathered evidence of an extensive cocaine operation based in the motel and arrested thirteen individuals, including Lester Johnson, Leroy Johnson, ¹ and Carol Diane Tilley. A grand jury returned a twenty-seven count indictment against ten defendants on September 15, 1989. All of the other defendants entered plea agreements and agreed to cooperate with the government.

A jury convicted Lester Johnson of conspiracy to possess in excess of 5 kilograms of cocaine with the intent to distribute, engaging in a continuing criminal enterprise, maintaining a drug establishment, and laundering drug money. Leroy Johnson and Tilley were each convicted of conspiracy to possess and possession of cocaine with the intent to distribute.

II.

Lester Johnson argues that the government violated his Sixth Amendment right to counsel by using a co-defendant to question him without either the presence of counsel or a valid waiver of that right and that the receipt into evidence of the incriminating statements is reversible error. The district court rejected this argument. The facts found by the district court are straight forward. Johnson was present in court on November 9, 1989 when his co-defendant Arlion Ray Bullard announced his intention to enter a guilty plea. Bullard formally entered his plea pursuant to an agreement with the government on November 20, 1989, but Johnson was not present. After his plea, Bullard went to Austin.

On November 28, 1989, Johnson called Bullard in Austin and asked if he could talk to him in person. Bullard told him that he would be in Corpus Christi in about a week and they could talk then. Bullard then called his attorney, who advised him not to speak to Johnson.

Bullard next called the prosecutor who referred him to the IRS agent in charge of the case. The agent asked Bullard if he would be willing to be wired and talk to Johnson. Bullard agreed. The government concedes that the agents knew at this time that Johnson was represented by counsel.

On December 1, 1989, Bullard called Johnson from a Corpus Christi motel to see if he "could stop by and maybe have a beer or something." Johnson asked him to come over, but ended that telephone conversation by saying that he "can't talk about nothing about the case." The district court found that Johnson was concerned that his phone was bugged, not about discussing the case. Bullard and Johnson met twice in Johnson's home over the next two days.

The IRS agent testified that he instructed Bullard to listen and see what Johnson wanted. Bullard did much more. The district court found that Bullard "acted sympathetic to Johnson, his plight, and his fears." Throughout their conversation, Bullard drew Johnson to the case and the statement Bullard had made to the police. The second meeting consisted largely of Bullard showing Johnson his written statement and Johnson telling him what was wrong with it. In short, there is little doubt but that Bullard actively elicited incriminating statements from Johnson.

The transcripts also disclose Johnson's awareness that his meetings with Bullard were risky and against the advice of counsel. During the conversations, Johnson specifically referred to his concern about being "set up" by Bullard. He said he had considered the possibility but had concluded that Bullard would not do that to him. Bullard made sure that Johnson continued to believe he was meeting with him in defiance of the government's wishes. When Johnson was concerned that officers might be watching his home, Bullard replied "I know I'm paranoid too." When Johnson said he thought his phone was tapped, Bullard replied "maybe my phone is tapped too." Bullard expressed his opinion that his apartment was being watched. Consistently throughout the conversation, Bullard made statements portraying the government as his adversary.

Later in their conversation Bullard suggested that he might speak to his lawyer about something they had discussed. Lester objected strongly. He insisted that neither one of them tell their lawyers anything about their meetings. Johnson told Bullard that his lawyer had already warned him not to talk to Bullard and that he could not tell his lawyer that they had talked alone. Bullard testified at trial about the incriminating statements which Johnson made during these two meetings. Tapes of the statements secured by the wire Bullard wore were also admitted.

A

We first consider whether Johnson enjoyed a Sixth Amendment right to the presence of counsel when questioned by Bullard. Once the government has instituted formal proceedings against a defendant, the Sixth Amendment renders statements "deliberately elicited" from the accused inadmissible in the government's case-in-chief "without an express waiver of the right to counsel." Michigan v. Harvey, 494 U.S. 344, 110 S.Ct. 1176, 1179, 108 L.Ed.2d 293 (1990).

In Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Supreme Court first held that an accused has a Sixth Amendment right to be free of questioning by an undisclosed government informant in the absence of his counsel. Massiah's co-defendant became a secret government informant and engaged Massiah in a lengthy and incriminating conversation under police surveillance. The Court held that the guarantees of the Sixth Amendment would lose their efficacy if they did not apply to "indirect and surreptitious interrogations as well as those conducted in the jailhouse." Id. at 206, 84 S.Ct. at 1203. Therefore, the court adopted the rule that the Sixth Amendment is implicated whenever government agents "deliberately elicit" incriminating statements after indictment and in the absence of counsel. Id.

In its most recent visit of Massiah, Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the Supreme Court held that the Sixth Amendment right to counsel extends to attempts by government agents to deliberately elicit incriminating statements from the accused after his indictment even where the accused initiated the contact with the government agent. Moulton was a five to four decision but the dissenting justices' quarrel was with the application of Massiah to cases in which the post-indictment investigation was of crimes other than those charged. Id. at 492. In Moulton, the defendant made incriminating statements to his co-defendant who had come to see him at his request to help create a false alibi.

The Court said

Knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent. 106 S.Ct. at 487.

Bullard was acting as a government agent when he met with Johnson. The government understandably does not contend otherwise. He had entered into a quid pro quo agreement with the government before his meetings with Johnson. At Bullard's November 20, 1989, plea hearing, the government agreed that if Bullard pled guilty and helped to convict Lester Johnson, it would recommend a departure from the minimum mandatory sentence to an offense level of 15 under the Sentencing Guidelines. In addition, the prosecutor said that Bullard would receive an even more favorable sentencing recommendation to the extent that his testimony became "of even greater importance." Bullard testified that he remembered that statement as part of "the deal." It was after he had entered into this agreement with the prosecution that he agreed to go talk to Lester Johnson and wear a wire.

The government not only told Bullard that he would receive a lower sentence by doing more to convict Lester Johnson but also was intimately involved in the planning and execution of Bullard's meetings with Johnson. Government officers instructed Bullard what to do during the meetings, suggested that Bullard wear a recording device, monitored the conversations as they were occurring and provided Bullard with a copy of his statement to encourage Johnson's incriminating statements. On these facts, Bullard must be considered a government...