Opinion
Case No.: 12-CR-0792 YGR
06-15-2016
UNITED STATES OF AMERICA Plaintiff, v. HENRY CERVANTES, et al., Defendants.
TRIAL ORDER NO. 6 REGARDING A. CERVANTES' S MASSIAH MOTION RE: DKT. NOS. 1137, 1259
Pending before the Court is Andrew Cervantes's ("A. Cervantes") motion in limine to exclude alleged admissions due to a violation of his Sixth Amendment rights as first pronounced in Massiah v. United States, 377 U.S. 201 (1964). (Docket No. 1137, "Mtn.") Alberto Larez ("Larez") joined in the motion and requested that the Court exclude admissions he allegedly made. (Docket No. 1140.) The government opposed the motion. (Docket No. 1196.) The Court held an evidentiary hearing on June 10, 2016, after which it DENIED the motion with regard to Larez. (Docket No. 1140.) The Court heard argument on the motion with regard to A. Cervantes on Tuesday, June 14, 2016. Based on the submissions of the parties, testimony at the hearing, and oral argument held, the Court DENIES A. Cervantes's motion.
Also pending before the Court is a motion to quash subpoenas issued by the parties or to limit the testimony of Deputy Sean A. Sullivan filed by the Alameda County Sheriff's Office. (Docket No. 1259.) The arguments made therein were considered by counsel and not broached during the evidentiary hearing. Accordingly, the County's motion is DENIED AS MOOT.
The Court invited counsel for Larez to provide further argument on his joinder in the motion, which counsel declined. (6/14/2016 Transcript at 5195.)
I. BACKGROUND AND FACTUAL FINDINGS
"At some point in 2014 or 2015, Protected Witness No. 2 (PW2) dropped out of [N]orteno gang life." (Mtn. at 2 (quoting government's disclosure letter).) At the time, PW2 was incarcerated in a Bureau of Prisons ("BOP") facility in Arkansas when he began a debriefing process to determine whether his request to drop out was genuine. BOP Special Investigative Service Agent Kevin Myers, the official in charge of the debriefing process, contacted FBI Agent Laritza Diazgonsen, who in turn contacted FBI Special Agent Dale Dutton to advise that PW2 was interested in cooperating.
A. Transfer of PW2 to Northern District of California
The Court finds that, in 2014, PW2 informed Agent Myers of a desire to drop out of the Norteno gang. (6/10/16 Transcript at 5112-13.) PW2 began a process to "debrief," and wanted assistance from counsel in so doing and in meetings with Agent Myers. (Id. at 5121-24, 5129-30.) PW2 planned to request a reduction in sentence if he provided information "pertaining to things in [his] organization that [he] knew about and things that [he] knew about on the yard, things [he] knew about with the drug movement, things of that nature, if [he] did go that route and . . . put [his] life on the line, . . . ." (Id. at 5126-27.) PW2 wanted to talk with his attorney about requesting from a prosecutor a reduction in the sentence he then was serving. (Id. at 5128.) PW2 understood that there was no agreement to receive a reduced sentence at the time he started the process to "debrief with Agent Myers. (Id. at 5130.) Agent Myers had six meetings with PW2 in Arkansas, and Myers and PW2 discussed unsolved homicides and other crimes in the Santa Rosa area. (Id. at 5175.) PW2 also discussed with Myers Nuestra Familia and Norteno activities, as well as A. Cervantes, Henry Cervantes, Richard Martinez, and Larez, all of whom are defendants in this case. (Id. at 5175-76.) In October 2014, Myers had a phone call with FBI Special Agent Russell Nimmo, in which he said that PW2 had information about Larez. (Id. at 5160.) Also that month, Special Agent Nimmo emailed that information to Assistant U.S. Attorneys Katy Haun, Joseph Alioto, and Will Frentzen. (Id. at 5160-61.)
Next, FBI Special Agent Dale Dutton decided to have PW2 transferred to this District to provide information about prior criminal activity related to Nortenos in the North Bay, including unsolved homicides, drug trafficking, and other crimes related to Nortenos. Special Agent Dutton had been involved in PW2's earlier prosecution for drug trafficking, which resulted in a conviction and a sentence PW2 was serving in a BOP facility in Arkansas. (See id. at 5035-38.) Special Agent Dutton learned in October or November 2014 from another FBI agent that PW2 wanted to cooperate with the federal government and expressed some interest in what PW2 had said "if [PW2] was cooperating or . . . [had debriefed] or provide[d] information in an interview. . . ." (Id. at 5037-38.)
Special Agent Dutton also spoke with Agent Myers who debriefed with PW2 in Arkansas. (Id. at 5044.) However, Agent Myers did not brief Special Agent Dutton or Assistant U.S. Attorney Leung on specific information that PW2 had provided other than to indicate that PW2's information related to Nortenos. (See id. at 5043-44.) In fact, neither Special Agent Dutton nor Assistant U.S. Attorney Leung spoke to PW2 about providing information or debriefing until October 2015. (See id. at 5059, 5087.) Rather, Special Agent Dutton advised Assistant U.S. Attorney Wilson Leung that he was interested in obtaining information regarding some unsolved murders and drug dealing in the North Bay or Santa Rosa area. (Id. at 5040-42.) On this basis, Assistant U.S. Attorney Leung initiated the paperwork to bring PW2 to Northern California. (Id.) Special Agent Dutton contacted Assistant U.S. Attorney Leung to inform him that: PW2 "has dropped out and . . . is cooperating, and it might be worthwhile for us to see if we can get him moved to the Northern District so we could actually conduct a proffer session." (Id. at 5039.) Dutton knew him to be "a somewhat significant [Norteno] gang member up in the North Bay, and [he and Assistant U.S. Attorney Leung] had hopes that [PW2] could give [them] some information on maybe some unsolved homicides and other criminal activity up there." (Id. at 5040.) Special Agent Dutton also thought that PW2 possibly could provide information about Norteno-related "assaults and maybe some drug trafficking activity." (Id. at 5042.) Special Agent Dutton assumed that PW2 sought a reduction in his prison sentence in exchange for providing information. (Id. at 5047-48.)
Separate from PW2, Special Agent Dutton knew that A. Cervantes "was an NF member [who had] been arrested on federal charges," and assumed that he was housed at Glen Dyer Jail "because that's where most federal inmates are housed." (Id. at 5052-53.) Special Agent Dutton had a general awareness of the underlying case against A. Cervantes in August 2015. (Id. at 5053.) At that time, Special Agent Dutton was not involved in the investigation of the instant case, nor did he work in the same office as Special Agent Daniel Daley.
As noted, Assistant U.S. Attorney Leung initiated PW2's transfer to this District to facilitate discussions with FBI agents regarding information about prior criminal activity, including unsolved murders in the Sonoma County area potentially involving Nortenos and Surenos. Assistant U.S. Attorney Leung explained: "[T]he usual procedure is, if . . . [PW2] provides information, we would consider giving him consideration in the form of a sentencing reduction, a Rule 35 motion, . . . ." (Id. at 5084.) Previously, Assistant U.S. Attorney Leung prosecuted PW2 in 2013 on drug trafficking and firearms charges. (Id. at 5073-74.) He had been told that PW2 was a Norteno. (Id. at 5074.) And he learned from Special Agent Dutton in early 2015 of PW2's willingness to drop out and provide information regarding "some unsolved gang related murders in Sonoma, and . . . assumed . . . Norteno and Sureno[] [involvement]." (Id. at 5074-75.) Then, he prepared a "Form 475" to request that the Bureau of Prisons transfer PW2 to the Northern District of California. (Id. at 5076-78.) Completing a Form 475 does not involve control over where an individual to be transferred will be housed before arriving at a designated location. (Id. at 5089-90.)
After Assistant U.S. Attorney Leung learned that PW2 was scheduled to arrive in the Northern District in early August 2015, he contacted PW2's counsel about PW2's potential cooperation, but did not receive confirmation from counsel about whether PW2 would cooperate. (Id. at 5079-82.) PW2's counsel stated in response to Leung's questioning that he would meet with his client. (Id. at 5081-82.) PW2 arrived at Glen Dyer Jail in August 2015. ///
B. Housing of A. Cervantes and PW2 at Glen Dyer Jail
The government arrested A. Cervantes at a BOP facility in Lewisburg on March 24, 2015, and, on April 9, placed him in Glen Dyer Jail for arraignment on one count of drug conspiracy. (See Docket No. 1196 at 2; United States v. Cervantes, No. 15-cr-00230-YGR, Docket Nos. 1 (March 2015 Complaint), 8 (April 2015 Indictment).) At the time of A. Cervantes's placement at the jail, Larez had been indicted in this case and was housed at a facility in Pahrump, Nevada. (See Docket No. 1140 at 1-2.) An official at the jail placed A. Cervantes in Pod A, Cell 10. (See Docket No. 1196 at 2.) The government would not indict A. Cervantes on Count One of the Third Superseding Indictment in this case until September 17, 2015. (Docket No. 724.)
Pursuant to Assistant U.S. Attorney Leung's request, the BOP moved PW2 to the Northern District of California, and, in transporting him, placed PW2 at a facility in Pahrump, Nevada, where PW2 met Larez. (Mtn. at 2.) Neither the U.S Attorney's Office for the Northern District of California nor the FBI control, or are informed of, the timing, transportation details, or placement of inmates while they are in the process of being transferred. (See 6/10/16 Transcript at 5059-60, 5089-90.) While in Pahrump, PW2 indicated to Larez that he remained an active Norteno. (See Docket No. 1140 at 1.) Larez allegedly made incriminating statements to PW2. (See id. at 1-2.) Larez also allegedly told PW2 that A. Cervantes was at Glen Dyer Jail. (See id.)
In August 2015, after two weeks in Pahrump, Nevada, the BOP transferred PW2 to Glen Dyer Jail. (See Mtn. at 2; Docket No. 1140 at 2.) Upon arrival at Glen Dyer Jail, PW2 advised Alameda County Sheriff Deputy Sean Sullivan that he was a "dropout" and requested placement in Protective Custody. (See 6/10/16 Transcript at 5017-20.) Because PW2 had not been verified as a dropout at Glen Dyer Jail, nor had he previously been in Protective Custody at Glen Dyer, Deputy Sullivan did not initially place PW2 in Protective Custody. (See id. at 5018-19 ("An inmate would be placed in Protective Custody if [he] had one documented history in [Protective Custody] with [Glen Dyer], or if [Glen Dyer] called . . . another prison to verify that they actually had history in [Protective Custody] at one point or another.").) In determining where to place PW2, Deputy Sullivan learned that PW2 wanted to be placed in Administrative Segregation next to A. Cervantes to get information from him. (Id. at 5020.)
Deputy Sullivan called Special Agent Dutton about PW2 to "verify [PW2]'s story" about cooperating with the federal government and determine where to place PW2 at Glen Dyer Jail. (Id. at 4999-5000.) Deputy Sullivan learned from Special Agent Dutton that PW2 was "cooperating with the federal government." (Id. at 5000, 5005.) Although the testimony on this point was inconsistent, the Court will assume for purposes of this Order that Deputy Sullivan stated PW2's desire to be housed next to A. Cervantes to Special Agent Dutton. (Id. at 5001.)
Deputy Sullivan gave inconsistent answers about whether he told Special Agent Dutton about A. Cervantes. Initially, Deputy Sullivan did not recall whether he said to Special Agent Dutton that PW2 wanted to be housed next to A. Cervantes, (id. at 5000-01), but on the subsequent question ("You don't remember if you told Special Agent Dutton that [PW2] wanted to be housed next to [A.] Cervantes") said, "No, I am sorry, I did. Yeah, I did tell him that," (id. at 5001). Deputy Sullivan later testified that he "d[id]n't think [A.] Cervantes's name came up in the conversation [with Special Agent Dutton]." (Id. at 5021.) Yet, confronted with his earlier testimony, he testified, "If that is what I said, then, yes, that's correct," (id. at 5022-23), and then testified that he "would say yes" to the question of whether A. Cervantes's name came up in the conversation with Special Agent Dutton (id. at 5023). Special Agent Dutton later confirmed that Deputy Sullivan brought up A. Cervantes's name albeit without remembering "exactly what . . . Sullivan said," (see id. at 5066 ("Deputy Sullivan mentioned that [PW2] felt comfortable that he could be housed with active Nortenos; Northerners."); id. at 5068 (explaining that Deputy Sullivan said that PW2 "said he felt comfortable being housed with active Northern gang members, including [A.] Cervantes").) --------
The Court finds that Special Agent Dutton's response to Deputy Sullivan's phone call was to say that PW2 already had dropped out of the Norteno gang and "that he should probably be housed appropriately based on that dropout status." (Id. at 5049.) Special Agent Dutton "wanted to make sure [that Deputy Sullivan and the Sheriff's Office] were aware [PW2] was a dropout. . . . [a]nd . . . that he should be housed appropriately . . . in accordance with their policies and their procedures." (Id. at 5050.) Special Agent Dutton "advised Deputy Sullivan that [PW2] was a dropout, and that it potentially could be a safety issue if [PW2] was housed with active [gang members]." (Id. at 5066.)
The Court also finds that Deputy Sullivan decided not to place PW2 in Protective Custody and decided to place PW2 in a cell "right next to" A. Cervantes's, and did so on the basis of a consideration that PW2 "said he would like to be placed next to [A.] Cervantes because he wanted to get information from him," (id. at 5020; see id. at 5009-10). Deputy Sullivan testified that his conversation with Special Agent Dutton did not affect his own decision to house PW2 in a cell next to A. Cervantes, but Deputy Sullivan "believe[s]" that, if Special Agent Dutton "had told [him] not to house [PW2] next to [A.] Cervantes," such a statement would have given Deputy Sullivan some cause for concern. (Id. at 5003.) Based on Special Agent Dutton's testimony, the Court finds that at most, the Deputy Sullivan's reference to A. Cervantes was no more than passing.
PW2 testified, in line with other testimony provided by other witnesses at trial, that new arrivals to a facility are questioned by others detained at the jail to determine the new arrivals' loyalties. (See id. at 5147.) Here, A. Cervantes initially asked PW2 questions. (See id.) Within the first couple of weeks of being housed next to one another at Glen Dyer Jail, the two established a sufficient rapport that A. Cervantes shared an admission with PW2 which is the subject of these proceedings, namely that he was involved in the Nuestra Familia and that he ordered a "hit" on a particular inmate. (See Docket No. 1196 at 4-5; 6/10/16 Transcript at 5152-53, 5159.)
In September 2015, after PW2 had met with counsel, Assistant U.S. Attorney Leung spoke with PW2's counsel in-person. (6/10/16 Transcript at 5082-83.) At that meeting, Assistant U.S. Attorney Leung discussed the potential for Rule 35 relief and PW2's safety. (Id. at 5082.) Counsel also told Assistant U.S. Attorney Leung that PW2 had "met an NF Defendant named Bird and had information about Bird." (Id. at 5083.) Assistant U.S. Attorney Leung was not aware that PW2 had information about A. Cervantes or Larez until counsel mentioned Bird, a name associated with Larez. (Id. at 5088.)
Assistant U.S. Attorney Leung met with PW2, PW2's counsel, and an FBI case agent for this case (Special Agent Nimmo), on October 1, 2015. (Id. at 5085-87.) That session was Assistant U.S. Attorney Leung's first meeting with PW2 since PW2's sentencing in 2013. (Id. at 5091.) "At that meeting, [PW2] signed a proffer agreement for the first time." (Docket No. 1196 at 4.) At that proffer session, "[PW2] suggested should he be housed near Nortenos because he would get more information, and [Assistant U.S. Attorney Leung and others] told him no." (Id. at 5086.) That session primarily involved discussion about individuals indicted in this case. (Id. at 5088.) That session did not result in a formal written cooperation agreement. (Id. at 5092-93.)
On October 2, upon request from the government, Glen Dyer Jail officials changed PW2's cell placement. (Docket No. 1196 at 4.)
II. MASSIAH STANDARD
"In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "Once a defendant's Sixth Amendment right to counsel has attached, the government is forbidden from 'deliberately eliciting' incriminating statements from the defendant." Randolph v. People of the State of Cal., 380 F.3d 1133, 1143 (9th Cir. 2004) (quoting Massiah, 377 U.S. at 206). "This prohibition has been extended to the use of jailhouse informants who relay incriminating statements from a prisoner to the government." Id.; see United States v. Henry, 447 U.S. 264, 270 (1980). "In order to prevail on a Massiah violation, the defendant must show that: (1) the informant was acting as an agent of the State when he obtained the incriminating statements; and (2) the informant made some effort to stimulate conversations about the crime charged." Williams v. Davis, 2016 WL 1254149, at *15 (C.D. Cal. Mar. 29, 2016) (citing Randolph, 380 F.3d at 1144).
"The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a 'medium' between him and the State." Moulton, 474 U.S. at 176. In light of this guarantee the Court observed that "knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity," id., and that "the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent," id. (adding in a footnote that "proof that the State 'must have known' that its agent was likely to obtain incriminating statements from the accused in the absence of counsel suffices to establish a Sixth Amendment violation"). "Moreover, the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government." Henry, 447 U.S. at 273.
"If, in fact, the State placed [an individual] in a cell with [a defendant] after he indicated his willingness to cooperate with the prosecution, the State 'intentionally create[d] a situation likely to induce [the defendant] to make incriminating statements without counsel's assistance.'" Randolph, 380 F.3d at 1146 (quoting United States v. Kimball, 884 F.2d 1274, 1278 (9th Cir.1989)); see also id. at 1144 ("Henry makes clear that it is not the government's intent or overt acts that are important; rather, it is the 'likely . . . result' of the government's acts." (quoting Henry, 447 U.S. at 271)). In such a circumstance, "[the prosecution] t[akes] the risk that [the individual] might 'deliberately elicit' information from [the defendant] within the meaning of Massiah and Henry and that such information would be excluded at trial." Id. at 1146. Cf. Henry, 447 U.S. at 266 (noting that an informant "informed [an FBI agent] that he was housed in the same cellblock with several federal prisoners awaiting trial, including [the defendant]"); id. at 268 (noting that FBI "agent's affidavit also stated that he never requested anyone affiliated with the . . . city jail to place [the informant] in the same cell with [the defendant]").
In Randolph, representatives of the government told an informant "not to expect a deal in exchange for his testimony." Randolph, 380 F.3d at 1144. Still, "an explicit agreement to compensate [an informant] [wa]s not necessary to a finding that [the informant] acted as an agent of the State." Id. In that case, "there [wa]s substantial evidence to support a conclusion that [a deputy district attorney] and [a detective] knew or should have known that [the informant] believed that he would receive leniency if he elicited incriminating statements from [a defendant], circumstances sufficient to make [the informant] a government agent." Id. at 1146; see also id. at 1137 ("We hold that if the State places a cooperating informant in a jail cell with a defendant whose right to counsel has attached, and if the informant then makes a successful effort to stimulate a conversation with the defendant about the crime charged, the State thereby violates the defendant's Sixth Amendment rights . . . ."). By contrast, "the Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached." Maine v. Moulton, 474 U.S. 159, 176 (1985); see also Randolph 380 F.3d at 1144 (quoting Moulton to state: "Any statements, however, made by [a defendant] before [an informant] met with the prosecution team cannot be the basis of a Massiah violation.").
Next, regarding an informant's behavior, a defendant must show "some effort to 'stimulate conversations about the crime charged.'" Randolph, 380 F.3d at 1144 (quoting Henry, 447 U.S. at 271 n.9). "Notably, 'stimulation' of conversation falls far short of 'interrogation.'" Id. (citing Fellers v. United States, 540 U.S. 519, 522-25 (2004)). The Randolph court considered that an informant asked questions of a defendant about a crime when the defendant talked about the crime and "further encouraged [the defendant] to provide information by 'being friendly and talkative.'" Id. at 1146; see also id. ("In response to the question, 'Did you lead [the defendant] on to provide you with information?' [the informant] testified, 'Of course. Yes.'"). By contrast, Kuhlmann v. Wilson, 477 U.S. 436 (1986), involved no such stimulation because "the trial court concluded that the statements made by the defendant to the informant were 'unsolicited' and 'spontaneous.'" Id. at 1143 (quoting Kuhlmann, 477 U.S. at 440 (noting that the trial court found that the informant "'at no time asked any questions with respect to the crime,' . . .")).
III. APPLICATION OF MASSIAH REGARDING WHETHER PW2 ACTED AS AN AGENT OF THE GOVERNMENT
As discussed below, the Court concludes that defendant A. Cervantes has failed to show that PW2 was acting as an agent of the government at the time of the admission at issue. Because the Court's conclusion in this regard is dispositive, the Court need not reach the parties' additional arguments under Massiah or those regarding whether the statements at issue were incriminating as to a charge pending against A. Cervantes in August 2015.
A. Cervantes argues that PW2 first became an agent of the government as a result of debriefing six times with Agent Myers, and was an agent at least as of the time he left the BOP facility in Arkansas. Specifically, A. Cervantes asserts that, because the BOP "has acted as the lead investigative agency" (Dkt. No. 1251 at 6) in this case as to A. Cervantes, PW2 first met with members of the "prosecution team" for purposes of Randolph and Massiah when PW2 met with BOP Investigative Agents in Arkansas and expressed his desire to provide information about Norteno activity and drop out of the gang. (See id. at 6-8.). Further, he argues that PW2 was an agent upon being brought to this District in August 2015, because PW2 "expected to receive consideration from the government when he asked to be housed next to [A.] Cervantes," and "the government had already begun fulfilling its part of the agreement with PW2," by arranging PW2's transfer from Arkansas to the Northern District of California, where PW2 previously had resided and been arrested. (Id. at 6; see also 6/14/2016 Transcript at 5192-94.) A. Cervantes also relies on United States v. Fort, 472 F.3d 1106, 1110-13 (9th Cir. 2006), and its interpretation of "other government agent in connection with investigating or prosecuting the case," Fed. R. Crim. P. 16. See also United States v. Fort, 478 F.3d 1099, 1105-06 (Wardlaw, J., dissenting from denial of rehearing en banc). Cf. Kyles v. Whitley, 514 U.S. 419, 437-39 (1995); United States v. Cerna, 633 F. Supp. 2d 1053, 1059 (N.D. Cal. 2009) ("The official press releases in this case made clear that at least four federal agencies must be deemed 'agents' involved in the investigation for Brady purposes, namely ICE, DEA, FBI and ATF.") (emphasis in original). Finally, A. Cervantes presented an additional theory that Special Agent Dutton acquiesced in Deputy Sullivan's placement of PW2 next to A. Cervantes after telling Deputy Sullivan that A. Cervantes was cooperating with the government. (See 6/14/16 Transcript at 5194; Dkt. No. 1251 at 4.) Cf. Henry, 447 U.S. at 270 (explaining that an individual had been a government informant and "the FBI agent was aware that [the individual] had access to [the defendant] and would be able to engage him in conversations without arousing [the defendant's suspicion").
The Court disagrees. Unlike the record in Randolph, A. Cervantes fails to provide sufficient facts from which the Court can conclude that an implicit agency relationship existed between PW2 and the government. When PW2 arrived at Glen Dyer Jail, the government had decided only to move PW2 to this District to facilitate communications between PW2 and his lawyer, and to facilitate PW2 providing information to the government in connection with PW2 having dropped out of the Nortenos and his possible knowledge of prior unsolved crimes involving Nortenos in the North Bay. The Court concludes that this decision to transfer PW2 is too attenuated from PW2's subjective desire to collect information about A. Cervantes or Sullivan's decision to place PW2 in proximity to A. Cervantes to support a conclusion that either Agent Myers or Assistant U.S. Attorney Leung or Special Agent Dutton "either knew or should have known that [PW2] hoped that he would be given leniency if he provided useful testimony against [A. Cervantes]," Randolph, 380 F.3d at 1144. See also id. at 1147; (noting that "there [wa]s substantial evidence to support a conclusion that [a prosecutor and a detective] knew or should have known that [an informant] believed that he would receive leniency if he elicited incriminating statements from [a defendant], circumstances sufficient to make [the informant] a government agent"). In turn, the Court concludes that A. Cervantes did not establish that the government "intentionally created a situation likely to induce [A. Cervantes] to make incriminating statements without counsel's assistance," Randolph, 380 F.3d at 1146 (quoting Kimball, 884 F.2d at 1278). Cf. Henry, 447 U.S. at 272 n.8 (noting that it was significant and "clear that the agent in his discussions with [the informant] singled out [the defendant] as the inmate in whom the agent had a special interest"). Ninth Circuit law is well established that PW2's subjective beliefs and desires alone to cooperate are insufficient to make him an agent of the government. See Fairbank v. Ayers, 650 F.3d 1243, 1248 (9th Cir. 2011) (noting in AEDPA case that "even if [the informant] subjectively believed that the officer's statement as to the murder weapon was a request, this does not constitute the requisite state involvement . . . ."). The mere fact that these individuals knew PW2 was a Norteno does not mean that their decision to transfer PW2 to this District likely would lead to PW2's access to A. Cervantes or PW2 stimulating conversations about A. Cervantes's prior activities involving the Nuestra Familia and Nortenos.
Further, the Court declines to apply the reasoning in Fort, 472 F.3d at 1110-13, regarding Federal Rule of Criminal Procedure 16(a)(2) to this case to conclude that the government violated Massiah. The actions through August 2015 of the Assistant U.S. Attorney, FBI Special Agent, and BOP Special Investigative Agent show they intended to facilitate the possibility of PW2 providing information about unsolved crimes involving Nortenos in the North Bay, without sufficient evidence to support a finding that they intended to facilitate PW2 providing useful testimony against A. Cervantes in this case.
IV. CONCLUSION
For the foregoing reasons, the Court DENIES A. Cervantes's motion in limine to exclude his alleged admissions under Massiah. This order terminates Docket Nos. 1137 and 1259.
IT IS SO ORDERED. Date: June 15, 2016
/s/ _________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE