United States v. Johnson, No. CR 00-3034-MWB (N.D. Iowa 8/13/2002)
| Decision Date | 13 August 2002 |
| Docket Number | No. CR 00-3034-MWB.,No. CR 01-3046-MWB.,CR 00-3034-MWB.,CR 01-3046-MWB. |
| Parties | UNITED STATES of America, Plaintiff, v. Angela JOHNSON, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
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.
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.
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 boyfriend, 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
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.
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 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 placement in the Benton County Jail, McNeese's "resume" of cooperation with prosecutors and law enforcement officers as an informant, and the extensive contacts between Johnson and McNeese are examined in considerably more detail in the court's ruling on the "Massiah violation" as to charges in the first indictment. See Johnson I, 196 F. Supp.2d at 800-26.
On August 30, 2001, based in part on evidence provided by McNeese or obtained as a result of information that he provided, a grand jury returned a second indictment against Angela Johnson, the indictment in Case No. CR 01-3046-MWB. The second indictment charges Johnson with five counts of killing witnesses while engaging in a drug-trafficking conspiracy, and five counts of killing witnesses in furtherance of a continuing criminal enterprise (CCE).3 The government acknowledges that the "conspiracy murder" charges in the first five counts of this second indictment are "lesser-included offenses" of the "CCE murder" charges in the second five counts. One of the critical issues in this case, as shall be explained in more detail below, is the relationship between the charges in the first indictment and the charges in the second indictment, where most of the charges in the two indictments allege Angela Johnson's involvement in the murders of the same five people.
On November 14, 2000, the government filed its original Notice of Intent to Use Evidence in Case No. CR 00-3034-MWB,4 which notified the court and the defendant of the government's intent to introduce at trial evidence of incriminating statements Angela Johnson made to Robert McNeese, along with evidence derived from those statements, including the bodies of five alleged murder victims. The government requested an order finding that the evidence obtained from McNeese would be admissible at Angela Johnson's trial on the charges pending in Case No. CR 00-3034-MWB, that is, the first seven-count indictment against Johnson. The essence of the government's argument, submitted in a brief in support of the Notice, was that the information provided by McNeese had not been obtained in violation of Johnson's Sixth Amendment right to counsel.
Johnson filed an initial resistance to use of McNeese's jailhouse informant evidence on November 27, 2001. She eventually filed a brief in response to the government's Notice of Intent to Use Evidence on April 6, 2001, in which she asserted that McNeese's acquisition of incriminating statements from her violated her Sixth Amendment right to counsel within the meaning of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and its progeny. Johnson, therefore, requested that the statements and evidence flowing from those statements be suppressed. At this point, the court and the parties agreed that the issue of the admissibility of McNeese's evidence, at least as to the charges in the first indictment, had "morphed" into Johnson's motion to suppress evidence based on a "Massiah violation."
On April 11, 12, and 13, 2001, the court held the first of two evidentiary hearings on the alleged "Massiah violation." Further episodic submissions of the parties on the "Massiah issue" as to the first indictment continued through the next year, including submission of post-hearing briefs, a further hearing on additional evidence, and, finally, oral arguments on January 15, 2002.
Disposition of the "Massiah issue" as to the first indictment culminated in a lengthy order, dated April 23, 2002, in which the court denied the government's Notice of Intent to Use Evidence from the jailhouse informant in Case No. CR 00-3034-MWB, to ...
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