U.S. v. Watson

• Decision Date: 19 January 1990
• Docket Number: No. 88-3086,88-3086
• Citation: 282 U.S. App.D.C. 305,894 F.2d 1345
• Parties: , 29 Fed. R. Evid. Serv. 1201 UNITED STATES of America, v. Kevin E. WATSON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1345

894 F.2d 1345

282 U.S.App.D.C. 305, 29 Fed. R. Evid. Serv. 1201

UNITED STATES of America, v. Kevin E. WATSON, Appellant.

No. 88-3086.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 14, 1989.

Decided Jan. 19, 1990.

Appeal from the United States District Court for the District of Columbia (Cr. 87-00490-01).

Ferris R. Bond, Washington, D.C. (appointed by this court), for appellant.

William C. Brown, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John R. Fisher, Elizabeth Trosman, and Judith E. Retchin, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before MIKVA, WILLIAMS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Dissenting opinion filed by Circuit Judge MIKVA.

D.H. GINSBURG, Circuit Judge:

Following a jury trial, appellant Kevin Watson was convicted of possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. Sec. 841(a), (b)(1)(B)(ii), and sentenced to 75 months imprisonment. He now appeals that conviction, asserting five grounds for reversal. After discussing his principal points, we affirm.

I. BACKGROUND

On December 7, 1987, an Amtrak policeman became suspicious of Watson when he discovered that Watson had purchased a train ticket from Miami to Philadelphia with cash, thirty-one minutes prior to his departure, and had given Amtrak an incorrect phone number. Watson had purchased the ticket under the name Fred Roberts, and gave that name to the policeman and three officers of the Drug Enforcement Administration when they first encountered him on the train at Union Station in Washington; he was unable to give the officers any identification other than a piece of paper with the name Fred Roberts printed on it. Following a pat down by one officer, to which Watson consented, Watson produced $1700 dollars from his shoe and explained that he had intended to use the money in order to make a down payment on a house in Florida. The officers then proceeded to another compartment without arresting Watson. A short time later, the officers again encountered Watson in the corridor of the train. After receiving Watson's permission to search his train compartment, one of the officers discovered two packages containing a total of 1283 grams of a mixture that was approximately 85% cocaine. The officers arrested Watson at that time.

At trial Watson testified that he did not know that there were drugs in his train compartment and that he was not "involved with drugs in any way." On cross-examination, Watson admitted that, while in jail, he had met a man named Eugene Young, but denied having told Young that he had been caught with cocaine or having shown him cocaine after his release from jail. The Government later announced that, in order to rebut this testimony, it intended to call Young, a DEA informant who had been incarcerated in the D.C. jail on an unrelated charge when Watson was being held after his arrest.

At an evidentiary hearing, Watson moved to dismiss the case, or to exclude Young's testimony about their jailhouse conversations, on two grounds. First, he made an offer of proof that, when they met in jail, Young represented himself to Watson as an attorney. Watson asserted that Young's false claim induced him to talk to Young and that this action represents "outrageous government misconduct." Therefore, Watson argued, the due process clause of the fifth amendment required either dismissal or at least exclusion of Young's testimony. Watson also argued that admission of Young's testimony would violate his sixth amendment right to counsel, as interpreted by the Supreme Court in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), because Young was seeking to elicit information from him on behalf of the DEA when they spoke in the jailhouse. The motion was denied and Young testified that while in jail, Watson told him that he had gone to Florida in order to purchase drugs and had been caught at Union Station on his way back to Philadelphia.

Young also testified that after he and Watson had been released from jail, he went to the auto body shop that Watson's family owned and there negotiated to buy from Watson cocaine, four kilograms of which substance he saw in the back room. Watson sought to exclude this testimony under Federal Rule of Evidence 404(b), which limits the admission of evidence regarding uncharged bad acts, because he was not charged with any crime concerning that incident and it occurred after the events for which he was charged. The court admitted the evidence on the grounds, enumerated in Rule 404(b), that it was relevant both to Watson's intent and to his knowledge with respect to the crime with which he was charged.

Watson's mother and a friend testified that he had a general reputation for truthfulness. Watson did not ask that an instruction on character evidence be added, however, when the court, after the close of the evidence but before closing arguments, asked whether either party wanted any instructions in addition to those it proposed to give. After the jury had been otherwise duly instructed, the court asked if either side had anything further to suggest. At this point, defense counsel first requested that the jury be instructed additionally, per Instruction 2.42 of the Criminal Jury Instructions, District of Columbia (3d ed.), as follows: "On the other hand, the circumstances may be such that evidence of good character may alone create a reasonable doubt of a defendant's guilt, although without it the other evidence would be convincing." The court refused to give the instruction because the request was untimely. The judge stated:

I would have been inclined to give the instruction, if it had been requested earlier, but I feel at this point, to give it now, is really out of context with all of the other instructions, and it seems to highlight that instruction. Therefore, I will deny your request.

Defense counsel made no objection, but merely responded, "Very well." Watson was convicted and sentenced as stated above.

II. DISCUSSION

We turn now to a discussion of the three principal issues raised by Watson and show why none requires reversal of his conviction.

A. The Jailhouse Conversations

The sixth amendment assures the accused "the assistance of counsel for his defense." A corollary thereto prohibits the Government from using against a defendant "at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after [a formal charge had been filed] and in the absence of his counsel." Massiah, 377 U.S. at 206, 84 S.Ct. at 1203; see also United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). In this case, we conclude that Young was not acting as a "federal agent" at the time of his jailhouse conversations with Watson; therefore, his testimony could not deprive Watson of his sixth amendment right to counsel.

It is established in the case law that in order for there to be a Massiah-type violation of a defendant's sixth amendment right to counsel, the person eliciting the incriminating information must be acting as a government agent. In Henry, the Court restated the principle that both underlies and limits its reasoning in Massiah: "When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent ... [he may say something] that an accused would not intentionally reveal to persons known to be Government agents." Id. at 273, 100 S.Ct. at 2188. We join the circuits that have expressly "refuse[d] to extend the rule of Massiah and Henry to situations where an individual, acting on his own initiative, deliberately elicits incriminating information." United States v. Malik, 680 F.2d 1162, 1165 (7th Cir.1982); accord Lightbourne v. Dugger, 829 F.2d 1012, 1020 (11th Cir.1987); United States v. Taylor, 800 F.2d 1012, 1015 (10th Cir.1986). In this regard, it is of no moment that the incriminating conversations took place while the accused was incarcerated; indeed Messiah was not in custody when the relevant conversation took place. As the Supreme Court has stated, in a case where there was no doubt that the interlocutor was a government agent, "the fact of custody bears on whether the Government 'deliberately elicited' the incriminating statements," Henry, 447 U.S. at 274 n. 11, 100 S.Ct. at 2188 n. 11. It does not bear upon the anterior question whether that interlocutor (here Young) was acting on behalf of the Government, however; that depends solely upon whether he was acting upon the instruction of a government official.

Watson argues that several factors suggest that Young was indeed acting as a government agent at the time of their jailhouse conversations: Young had been a DEA informant for two years; he was in regular contact with the DEA while in the D.C. jail; he expected to be paid and to be rewarded with leniency if he produced a case on Watson; and the DEA told him not to pursue the investigation of Watson until Young's release, suggesting (it is claimed) that the Government was directing Young's actions regarding Watson while he was in jail.

As Watson admits, however, there is no evidence that the DEA in any way encouraged Young to talk to Watson. On the contrary, he was in jail on an unrelated charge; while there his conversations with DEA agents concerned only past cases; he did not even mention Watson to the DEA until after the jailhouse conversations had occurred; and he was never in fact rewarded by the Government for information relating to Watson. Based upon these facts, we find without doubt that the Government did not elicit Watson's statements through the agency of Young. On the contrary, Young was acting as an entrepreneur; he may have hoped to make a sale to the Government when he spoke with Watson, but that does not make the Government responsible for his actions, any...