U.S. v. LaBare
| Decision Date | 08 September 1999 |
| Docket Number | No. 98-1897,98-1897 |
| Citation | 191 F.3d 61 |
| Parties | (1st Cir. 1999) UNITED STATES, APPELLEE, v. RICHARD N. LABARE, DEFENDANT, APPELLANT |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Gene Carter, U.S. District Judge]
Jane Elizabeth Lee for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with whom Jay P. McCloskey, United States Attorney, was on brief for appellee.
Before Selya, Circuit Judge, Cyr, Senior Circuit Judge, and Boudin, Circuit Judge.
On February 8, 1997, a taxi driver named Merritt Warren was robbed of $1,800 in cash and shot multiple times while in a parking lot in Portland, Maine. The police arrested Richard LaBare on an unrelated matter on February 27, 1997. Immediately thereafter, based on evidence described below, the state brought charges against LaBare for attempted murder and robbery in the Warren case, and the federal government filed a criminal complaint alleging a felon-in-possession violation in connection with the same event. 18 U.S.C. § 922(g). Counsel was appointed that same day, and LaBare was placed in the Kennebec County Jail in Augusta, Maine, pending trial on the state and federal charges.
While in the jail, LaBare shared a cell block with several other prisoners, including Joseph Chaloux and Arthur Mollo. Chaloux had been sentenced to six months imprisonment on a state burglary conviction, and Mollo was then awaiting trial on a felon-in-possession charge. Over a period of weeks, LaBare allegedly made inculpatory statements to both Mollo and Chaloux about the Warren shooting. As Mollo and Chaloux later testified, LaBare gave them detailed, if conflicting, accounts of what happened on February 8, 1997, and solicited their help to prevent LaBare's girlfriend and Warren from testifying against LaBare (through bribery, threats of physical harm, or harm itself).
Aided in part by Chaloux's testimony against LaBare, a federal grand jury returned a one-count indictment on March 25, 1997, charging LaBare with being a felon in possession of ammunition. 18 U.S.C. § 922(g). Thereafter, LaBare moved to suppress the testimony of Mollo and Chaloux, and a hearing on the motion was held before a magistrate Judge on September 4-5, 1997. LaBare argued that Mollo and Chaloux acted as agents of the government, that they "deliberately elicited" information from LaBare about the crime with which he had been charged, that these interrogations occurred outside the presence of LaBare's counsel, and that they therefore violated his Sixth Amendment right to counsel's assistance.
After hearing testimony from another prisoner offered by LaBare and testimony from Mollo, Chaloux, and several government agents who had interviewed them, the magistrate Judge recommended that the motion to suppress be denied. The district court largely upheld the magistrate Judge save that the district court suppressed statements made by LaBare to Chaloux after March 11, 1997; the court found that at a March 11 meeting with the government Chaloux had been instructed as to how to glean information from LaBare about the Warren shooting, and that Chaloux's follow-up questions to LaBare (even though contrary to instructions) amounted to forbidden interrogation.
LaBare was tried by a jury on the federal charge in December 1997. The government's case included testimony from Lorie Fournier, who had been LaBare's girlfriend at the time of the Warren shooting. She testified, among other things, that on the evening of the crime she and LaBare had been staying at a motel not far from the crime scene; she also stated that when LaBare left the room that evening he said he was going to find a friend who owed him money; and, earlier that day, Fournier saw that LaBare was carrying a gun in his pants. Warren testified at trial that LaBare was the man who had shot him.
The government also offered testimony from two friends of LaBare's, Gene and Norma Wood. Norma testified that after the crime LaBare told her he shot the taxi driver because he needed money. Norma's husband, Gene Wood, testified that LaBare had told him he had a hat with a ponytail sewn in it; such a hat was found in the car police recovered near the scene. Gene Wood also testified that LaBare told him of a plan to blackmail the cab driver into not testifying against him. Both Woods testified that LaBare repeatedly asked them to provide a false alibi for him for the evening of the Warren shooting.
Joseph Chaloux testified that in conversations with LaBare prior to March 11, 1997, LaBare told him that he was involved with a shooting of a cab driver in Portland, and LaBare asked Chaloux if he would accept $10,000 from LaBare to kill the cab driver. LaBare further stated that if he failed to find someone willing to kill the driver, he would try to bribe the driver not to testify against him. Mollo testified that LaBare had offered him money to get friends in a motorcycle gang to break Fournier's legs as a warning not to testify, and LaBare further told Mollo how he had stood over the cab driver and fired at him as Warren pleaded for his life.
The government also offered circumstantial evidence. Notably, Warren testified that the getaway car bore a temporary license plate containing the number "2"; a Subaru purchased by LaBare for Fournier was found a mile or so from the shooting with just such a license plate. Also, the police found several spent small-caliber weapon shell casings in or near the taxi, and agents recovered from LaBare and Fournier's home a magazine for a weapon of the same caliber. According to Chaloux's testimony, LaBare said that he had used a small-caliber weapon to shoot a cab driver in Portland.
In LaBare's favor, Lorie Fournier admitted that she was a manic depressive and had been in a bad state at the motel. Warren conceded that he had picked out two men from police photographs after he was shot and, though one was LaBare, Warren had said that the other was more likely the shooter. Chaloux and Mollo, of course, had criminal records and, being incarcerated, had an obvious self-interest in pleasing the prosecutors. And while the LaBare-Fournier car was found a mile away from the robbery, Warren said that the car he saw at the scene was a different color.
LaBare did not testify at trial but offered two witnesses in addition to the impeachment evidence already set forth. One, his prison mate Cavallaro, said he had never heard LaBare admit to the shooting or threaten Fournier. And Kenneth Meader, another prisoner, said that Chaloux had told him that Chaloux knew of a way to beat the system (the possible implication being that Chaloux might lie to get out of jail). Although the court then refused to allow Meader to expand upon this point, Meader's initial statement was never struck from the record.
The jury deliberated for about four hours and then found LaBare guilty of the felon-in-possession offense. Thereafter, based on computations described below, the district court sentenced LaBare to 327 months in prison. After the federal trial but before sentencing, LaBare was convicted in state court for robbery and attempted murder for the Warren shooting and sentenced to 40 years in state prison. At the federal sentencing, the district Judge rejected LaBare's request that the federal sentence be made expressly concurrent with the state sentence. LaBare now appeals from both his conviction and his sentence.
LaBare's challenge to his conviction rests on a single claim: that the testimony of Mollo and Chaloux should have been suppressed in its entirety because it was obtained in violation of LaBare's right to counsel. The basis for this claim is a line of cases beginning with Massiah v. United States, 377 U.S. 201 (1964), holding that once a criminal proceeding has been initiated and a defendant's right to counsel has attached, the government may not "deliberately elicit" statements from the defendant, in the absence of counsel and without a proper waiver.1 And, with limited exceptions, e.g., Michigan v. Harvey, 494 U.S. 344 (1990) (), the government may not introduce against the defendant incriminating statements procured in violation of Massiah. See Michigan v. Jackson, 475 U.S. 625, 629-30 (1980).
The Supreme Court has made clear that for Massiah purposes the right to counsel attaches when "adversary judicial criminal proceedings" have commenced against an accused, "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 688-89 (1972)). In this case, adversary proceedings against LaBare began no later than February 28, 1997, when the federal criminal complaint was filed against him for the felon-in-possession charge ancillary to the Warren crime. The jailhouse conversations with which we are concerned all occurred after that date.
The government assumes that the right to counsel attached but argues that neither Mollo nor Chaloux were acting as the government's agents in any interrogation of LaBare; and, says the government, neither prisoner actively elicited information from LaBare. Massiah applies only to interrogation by the government or someone acting on its behalf, Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986); even a government agent can testify as to what the defendant said to him so long as the agent did not actively elicit the information. Id. But while these legal premises are clear, their application to this case is less than straightforward.
Mollo's testimony presents the greater difficulty for the government. Mollo, being held on a federal charge in Kennebec County Jail, was interviewed on February 28, 1997, by federal authorities to arrange for Mollo's general cooperation. In this Discussion, the Assistant U.S. Attorney told Mollo that he was not to question other inmates but...
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