Appeals from the Superior Court of the District of Columbia (F-4433-97) (Hon. Gregory E. Mize, Trial Judge) (Hon. Ann O'Regan Keary, Motions Judge).
Before WASHINGTON, Chief Judge, and FARRELL and GLICKMAN, Associate Judges.
In this appeal from the denial of appellant's post-trial motions to vacate his convictions of first-degree murder while armed (premeditated),*fn1 possession of a firearm during a crime of violence,*fn2 and carrying a pistol without a license,*fn3 the appellant, Mr. William Watson, raises two issues: (1) that his confession to a government informant was obtained in violation of his Sixth Amendment right to counsel, and (2) that the government committed a Brady v. Maryland, 373 U.S. 83 (1963), violation when it failed to fully disclose the informant's complete criminal history and cooperation with the government.*fn4 For the reasons discussed below, we remand for an evidentiary hearing as to the first issue and affirm as to the second issue.
On October 3, 1995, at about 2:00 a.m., Mr. Tyrus Hunt ("Hunt"), also known as "Mink," was shot and killed in the 1200 block of Howison Place, located in the Southwest quadrant of the District of Columbia. Appellant was charged in an indictment with the first-degree murder while armed (premeditated) of Hunt on August 19, 1997. Among the witnesses testifying on the government's behalf was Mr. Charles Bender ("Bender"). While awaiting transportation from the jail to the courthouses, Bender saw and spoke to appellant, a neighborhood acquaintance. According to Bender, appellant confessed to killing Hunt during this encounter. It is Bender's testimony that is at the heart of this appeal.
In September 1995, Bender was arrested and charged in the Superior Court with first-degree murder, as well as other charges related to the murder. In November 1997, Bender pled guilty in federal court to a RICO conspiracy pursuant to a plea agreement he entered into with the government. The agreement provided that Bender would cooperate with the government "in whatever form [the United States Attorney's Office] deems appropriate, and in any matter as to which the Government deems his cooperation relevant." Bender was also required to testify completely and truthfully at trials of cases at which the government deemed his testimony relevant. In exchange, the government agreed to bring to the sentencing court's attention the nature and extent of Bender's cooperation and file a motion that would enable Bender to ask the sentencing court for a term less than that provided for under the United States Sentencing Guidelines.
At appellant's trial, Bender testified that while awaiting transport to the United States District Court in March 1998, by happenstance he saw appellant, whom he recognized as a neighborhood acquaintance. Bender testified that he approached appellant and asked,
"What's up?," then he asked appellant why he was in jail. Appellant replied, "a body." Bender asked "what body," and appellant responded "that Mink [expletive]." Appellant then told Bender that he knocked the victim out and then shot the victim.
During cross-examination of Bender, appellant's trial counsel elicited testimony regarding Bender's plea agreement and his cooperation with the government. However, Bender also testified that the government did not ask him to elicit any information from the appellant and that when he spoke to appellant it was on his own initiative. Bender's testimony was corroborated by an affidavit of an FBI Special Agent, which confirmed that at no time did anyone instruct Bender to elicit information from appellant or anyone else. When defense counsel asked Bender why appellant would be willing to confess to him, Bender replied that appellant did not know "how [Bender] was thinking" and that appellant thought he and Bender were "cool."
Appellant was convicted by a jury of first-degree premeditated murder, possession of a firearm during a crime of violence, and carrying a pistol without a license. Following trial, appellant filed a motion pursuant to D.C. Code § 23-110, asserting that his Sixth Amendment right to counsel had been violated by admission of Bender's testimony. The trial court denied this motion on the grounds that Bender was not a government agent. Appellant filed a notice of appeal from the denial of that motion. Subsequently, Bender testified as part of his plea agreement at what is known as the "K Street Trial" and implicated a number of individuals as being part of a marijuana distribution network. Appellant then filed a motion for reconsideration of his motion to vacate pursuant to § 23-110 based on the newly revealed information in the "K Street Trial," and that motion was also denied.*fn5 Appellant also appealed from the denial of that motion and his appeals were consolidated for our consideration.
The trial court denied appellant's § 23-110 motion on the grounds that Bender was not acting as a government agent when he deliberately elicited incriminating statements from appellant. Therefore, according to the trial court, appellant's Sixth Amendment right to counsel was not violated and he was not entitled to relief under Massiah v. United States, 377 U.S. 201 (1964). The government in its appeal brief to this court, however, disclosed for the first time that prior to Bender's conversation with appellant, one of its agents had spoken with Bender about appellant. In that conversation (the government relates) Bender had told the government that he had seen appellant murder an individual named Shawn during the summer of 1995, and that Bender was aware that appellant was currently in jail for killing Hunt. Because the trial court and appellant were not made aware of that conversation, they were at a disadvantage in comprehensively assessing whether appellant's Sixth Amendment rights had been violated. Appellant could not elicit further information about the conversation and the judges did not have an opportunity to consider the significance of the conversation in the larger context of a pattern of debriefings between Bender and government agents between 1995 and 1998. We thus find it necessary to remand to the trial court for exploration of the facts surrounding that conversation and its bearing on the Massiah issue.
Our decisions have established that the Sixth Amendment is violated when government agents expressly or implicitly use an informant as their agent to take some deliberate action, beyond mere passive listening, to elicit incriminating statements from a person whose right to counsel has attached. See Hager v. United States, 856 A.2d 1143, 1151 (D.C. 2004); West v. United States, 866 A.2d 74, 84 (D.C. 2005). In contrast, the Sixth Amendment is not violated where the informant acts to elicit incriminating statements from a represented person on his own initiative, and not in furtherance of an express or implicit agreement with the government. See Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). We consider the trial court in this case to have applied essentially that test in finding that --although Bender himself deliberately sought information from appellant -- the government agents, by their actions, had done nothing designed to make Bender a source of admissions from appellant and thus a "government agent" in his dealings with appellant. At the same time, however, the judges were deprived of potentially significant information bearing on that question. This case, as appellant has forcefully argued on appeal, presents an unusual factual setting of repeated interactions -- debriefings -- between the government and Bender starting in 1995 and continuing through 1998, in which Bender conveyed incriminating information to agents (and prosecutors) about multiple individuals. Courts have recognized that "agreements" whereby an informant furnishes information to the government in violation of Massiah do not "have to be explicit or formal, and are often inferred from evidence that the parties behaved as though there were an agreement between them, following a particular course of conduct over a sustained period of time." United States v. York, 933 F.2d 1343, 1357 (7th Cir. 1991). Other factors nonetheless may support a finding that the government had no hand in deliberately ...