Argued June 5, 2012
Appeal from the Superior Court of the District of Columbia (FEL-4443-97) (Hon. Ann O'Regan Keary, Motion Judge).
Jenifer Wicks for appellant.
Suzanne G. Curt, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Kenneth F. Whitted and James Sweeney, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman and Easterly, Associate Judges, and Farrell, Senior Judge.
Glickman, Associate Judge
The question in this appeal is whether appellant William Watson's Sixth Amendment rights were violated at his trial by the introduction of incriminating statements he had made to a fellow jail inmate named Charles Bender. The answer turns on whether Bender was acting as the government's agent when he elicited appellant's statements. In a previous decision in this case, we remanded for the Superior Court to reconsider the issue in light of new information provided by the government. After taking evidence, Judge Keary found that Bender was not a government agent and concluded that appellant's Sixth Amendment rights had not been infringed. We affirm the judge's ruling.
In July 1998, Charles Bender testified for the prosecution at appellant's trial for the fatal shooting of Tyrus "Mink" Hunt. Bender was then a cooperating witness in an unrelated law enforcement investigation who was awaiting sentencing in his own case: In November 1997, he had pleaded guilty in federal court to a RICO conspiracy in exchange for the dismissal of murder and other charges. Bender's plea agreement required him to "cooperate truthfully, completely, and forthrightly" with law enforcement authorities "in whatever form [the United States Attorney's Office] deems appropriate . . . in any matter as to which the Government deems his cooperation relevant." The agreement specified that "[t]he term „whatever form' includes, but is not limited to, answering questions; . . . giving testimony; . . . and participating in covert law enforcement activities." The United States Attorney's Office agreed to bring Bender's cooperation to the court's attention at the time of his sentencing and, if the Office determined that Bender had "provided substantial assistance in the investigation or prosecution of another person who has committed any offense, " to file the appropriate motion to enable Bender to request a below-Guidelines sentence.
In the months preceding appellant's trial, both he and Bender were detained at the D.C. Jail. They were held in different cellblocks and apparently had no contact with each other. But as Bender testified at the trial, he encountered appellant in March 1998 while the two of them were waiting to be transported to court. Bender recognized appellant, whom he knew from his old neighborhood by the nickname "Champ, " and struck up a conversation with him. Bender testified that he asked appellant why he was at the Jail, and appellant answered, "a body." "What body?" Bender asked. Appellant told Bender that the body was that of Mink, someone else Bender had known. Appellant proceeded to describe to Bender how and why he had shot and killed Mink. When defense counsel asked Bender why appellant was willing to confess the murder to him, Bender answered that appellant thought he and Bender were "cool" and did not "know how I was thinking."
Bender promptly reported appellant's confession to Kristen Ashby, the FBI Special Agent he had been debriefing in accordance with his plea agreement. Ashby passed the information on to the Assistant United States Attorney who was prosecuting the case against appellant.
Bender acknowledged in his testimony that his plea agreement committed him to cooperate with law enforcement about "any crime" he knew about. He insisted, though, that the government had not asked him to question appellant and that he had acted on his own initiative in doing so:
[T]he government didn't come to me about this. No, I came to them. They didn't ask me nothing about [appellant]. I came to them on my own. . . . They didn't ask nothing about Champ's [appellant's] case. . . . I didn't think it mattered, but I just did it on my own.
Special Agent Ashby testified at the hearing held on remand following our decision in Watson I. Ashby explained that she was assigned to work with Bender when he began cooperating in August 1997 with a federal investigation of narcotics trafficking and violent crime in the Greenleaf Gardens area of Southwest Washington, D.C. (Ashby referred to this at the hearing as the "Southwest crew" investigation.) Over the next six months, Bender participated in a series of debriefings with Ashby and federal ...