Opinion
Case No. 2:99-CR-515TC
June 3, 2003
ORDER
Defendant Martin Avila was indicted for possession of cocaine with intent to distribute, and for aiding and abetting in the offense. He has brought this motion contending that the indictment against him must be dismissed for outrageous government conduct or, in the alternative, that statements allegedly made by Avila while he was incarcerated to Derrick Haws, another inmate, should be suppressed. Avila contends that Haws was a government agent who deliberately elicited incriminating statements from Avila in violation of Avila's Sixth Amendment right to counsel. For the reasons set forth below, the court grants in part and denies in part Avila's motion.
Findings of Fact
In March 1999, Haws was indicted on one count of marijuana cultivation Haws was represented by Earl Xaiz. Shortly after the arrest, Xaiz contacted Detective Steve Winters, who was then a member of the Drug Enforcement Agency's Metro Narcotics Task Force located in Salt Lake City, Utah, to see if Winters would be interested in some drug-trafficking information Haws had. Winters and Haws met in April 1999. According to Winters, during the meeting between them, they spoke of "generalities, [Haws'] involvement in marijuana cultivation cases." (Transcript of March 10, 2003 hearing, hereinafter "Tr." at 7.) Winters and Haws did not "explicitly" talk about Haws becoming an informant for the Drug Enforcement Agency ("D.E.A.") (Id.)
On March 31, 1999, Haws was released from jail on cash bond, pending trial. He and Winters met a second time; again they spoke about marijuana cultivation. Soon after this meeting, Haws absconded and a warrant for his arrest was issued. In August 1999, Winters arrested Haws in Evergreen, Colorado. Haws was returned to the District of Utah by the United States Marshals and confined in the Davis County Jail.
Although Haws' attorney, Earl Xaiz, was doubtful that Winters would be interested in any information Haws might have, because of Haws' earlier flight, Xaiz again contacted Winters and asked if Winters would be interested in having Haws cooperate with the D.E.A. Sometime near the end of September or the beginning of October 1999, Haws and Winters met at the jail. They did not remain at the jail, but instead drove around Salt Lake County so Haws could show Winters various houses he said were connected to drug trafficking.
Although at the end of the meeting Winters gave Haws his telephone number, he did not specifically ask him to be an informant nor did he ask him to gather information for the D.E.A. Winters explained that: "He [Haws] wanted to work and Earl [Xais] wanted him to work. We weren't sure whether we could make that happen. He could not provide the information needed in jail, so there was a question as to whether he could do anything for us." (Tr. 11)
Sometime later, in September or October 1999, Haws telephoned Winters. He told Winters "that there was an individual [Avila] in Davis County Jail that was arrested on drug trafficking charges, and apparently it was substantial. That this individual had approached him in one fashion or another, and that he was able to negotiate some marijuana purchases and some cocaine purchases from an individual in Chicago, which I believed to be a family member to Mr. Avila." (Tr. 13) Winters testified that that was the first time he had heard the name "Martin Avila." (Id.)
At the hearing, Haws and Avila gave sharply conflicting accounts of how Avila had "approached" Haws. According to Haws, when he first met Avila, Avila was "stand-offish." (Tr. 56) Not until Haws' arraignment in federal court, which was apparently reported in the media, did Avila's attitude towards Haws change. He became "friendlier" after watching the news reports about Avila and his "big drug bust." (Id.) When Avila and Haws were transferred together to another cell block, Avila talked with Haws about his case, going so far as to show Haws discovery evidence in his case. Avila told Haws other details, not in the government reports, about his case and talked about other drug trafficking in which he was involved. Specifically, he told Haws that he had family in Chicago with drug connections and he might be able to arrange a large cocaine deal between Haws and an uncle in Chicago. This prompted Haws to call Detective Winters.
Avila's version of events was basically the following. In September 1999, after he was first put in jail, Haws approached him. Haws, who was holding a newspaper, asked Avila if he "was the person in the newspaper that had been arrested with fifteen kilos." (Tr. 76) According to Avila, when Avila said he was, Haws began visiting him regularly, asking him questions related to Avila's drug trafficking and the charge against him. Avila testified that Haws asked him if he could see the discovery in Avila's case so he could "help" him. (Tr. 77)
There is no dispute, however, that when Haws called Winters with the information about Avila and the possibility of a drug transaction with Avila's Chicago connections, Winters was interested. He searched D.E.A. files and found the details about Avila's charge and indictment; (the charge arose from a pipeline stop in southern Utah). Winters contacted Tim Moran and Rodney Holliday, who were the agents who had been assigned to Avila's case, and gave them the information from Haws.
Because Avila was under indictment, Holliday sought the advice of an assistant United States Attorney before going farther. He was told that it would be acceptable to pursue an investigation of a Chicago drug transaction, "but we were not to go back into the original 15 kilo deal [the charge for which Avila was under indictment] or discuss anything pertaining to that." (Tr. 34)
Moran, Holliday and Winters arranged to have Haws moved to the Wasatch County Jail where they met with him on November 3, 1999. They instructed Haws that he was not to discuss with Avila anything about the southern Utah drug offense. Haws, under the direction of DEA agents, made telephone calls to two women who were believed to be Avila's wife and girlfriend in an effort to arrange a drug transaction.
In January 2000, Haws was formally signed as an informant for the D.E.A. Metro task Force. Shortly thereafter, he was also formally registered as an informant for the D.E.A.
Agent Holliday explained that being an informant for the D.E.A. Metro Task Force is not necessarily the same as being a D.E.A. informant. (Tr. 39) This technicality, however, does not have any bearing on the court's decision.
No charges have been brought in connection with the alleged Chicago transaction.
Conclusions of Law
Avila argues that Haws became a government agent before he first encountered Avila at the Davis County Jail. Although he acknowledges that when Haws absconded, any previous informant relationship between Haws and Winters ended, Avila maintains that at the time Winters arrested Haws in Colorado, which occurred before Haws was placed in the Davis County Jail and met Avila, Haws became an agent. In the alternative, Avila contends that when Winters took Haws from jail so Haws could show Winters houses where drug trafficking was taking place. Flaws was working as an agent. Avila argues that Haws was desperate to cooperate with the government in the hope of escaping the mandatory minimum ten-year sentence he faced.
The government maintains that Haws was not a government agent until January 2000, when he was formally enlisted in the D.E.A. rolls, and, in any event, that Haws did not elicit any incriminating statements from Avila. The government further argues that in so far as any alleged statements about the Chicago case is concerned, no charges were brought and therefore, no Sixth Amendment right to counsel attached to any statements Avila made about the Chicago transaction.
The government's second argument is easily resolved. It does not matter whether the incriminating statements Avila allegedly made were about the charge for which he was under indictment or other non-charged drug trafficking activity. The question is whether the government can introduce the statements at the trial here in this case. And there is no dispute that when Haws made the statements, he was under indictment in this case and his right to counsel had attached. See Massiah v. United States, 377 U.S. 201, 206 (1964) (holding that the government violated the Sixth Amendment when it deliberately elicited incriminating information from an indicted defendant). There is no similarly no question but that evidence of Avila's statements about other drug transactions, if introduced by the government in the charged case pursuant to Federal Rule of Evidence 404(b), would be incriminating.
The government's first argument is more complex. In United States v. Henry, 447 U.S. 264 (1980), the Court held that where a paid government informant "stimulated" jailhouse conversations with an indicted defendant to "elicit" incriminating statements, the statements were not admissible. The inquiry here, then, is two-fold: First, the question of when Haws became a government informant; and second, after Haws became a government informant, whether he elicited incriminating statements from Avila.
The Defense correctly argues that the establishment of an informant relationship with the government can begin without a formal agreement; in fact, such agreements can be express or implied. See United States v. Taylor, 800 F.2d 1012, 1016 (10th Cir. 1986). And there is little doubt that Haws, as soon as he was arrested in Colorado (if not before), hoped that if he cooperated with the government, he would receive a more lenient sentence. But hope alone will not establish an informant relationship with the government.
The Second Circuit decision in United States v. Stevens is instructive. 83 F.3d 60 (2d Cir. 1996). Stevens argued on appeal that the trial court had erred in admitting incriminating statements he made in jail to three fellow inmates, Franco, Berman and Streb. Stevens made incriminating statements to Franco before he had any contact with the government. Once Stevens made the statements, however, Franco contacted the government and received a promise that if he provided useful information, he would be paid. Six days later, Franco told the government what Stevens had said to him. Franco received cash and a letter from the government to his parole board describing Franco's cooperation. The second inmate, Berman, telephoned the government and offered to cooperate. After that conversation, Stevens gave Berman some incriminating documents which Berman then passed on to the government. Berman was paid $700 by the government. Streb, the third inmate, testified that Stevens made the initial incriminating statements before Streb had had any contact with the government. Immediately after Stevens made the statements, however, Streb got in touch with the government and offered to provide them with information. He admitted that he hoped to have his own sentence shortened. Following Streb's contacting the government, Stevens gave Streb a number of incriminating documents.
Stevens argued that the government's use of the evidence from the three inmates violated his Sixth Amendment right to counsel because the inmates were acting as government agents: "He [Stevens] argues that if an inmate receives information from another inmate and subsequently transmits it to the government, that information is inadmissible under the Massiah rule whenever the information is received in the hope of exchanging it for a benefit (for example, trading it for a reduction in sentence.)" 83 F.3d at 64. The court disagreed, stating: "First, to treat every inmate who hopes to cut some future deal as a `government informant' is to extend the idea behind Massiah far beyond its natural reach, and that we are not willing to do. Second, Stevens himself initiated the conversation with Franco, Berman, and Streb during which they obtained the challenged information." Id. at 63-64.
Similarly, in United States v. Taylor, Taylor approached a fellow inmate asking for help in establishing an alibi. The inmate told the government and Taylor was then placed in the inmate's cell. Taylor subsequently made a number of incriminating statements to the inmate which were admitted at trial. The court held that the inmate was not a government agent and the inmate's hopes for a benefit from his cooperation were "mere expectancies." 800 F.2d at 1015-1016. The court stated that there was no evidence of an agreement between the government and the informant "in the absence of any express or implied quid pro quo underlying the relationship between [them]." Id. at 1016. See also, United States v. Johnson, 4 F.3d 904, 911-12 (10th Cir. 1993).
Here, although Haws was hoping for a benefit in exchange for his information, both about marijuana cultivation and, later, about the statements Avila made to him, the evidence shows that it was not until October 2000, when the government moved Haws to the Wasatch County Jail and then met with him, that Haws had more than a "mere expectancy" of receiving some benefit from the government. Although the record is not entirely clear, it does appear that once Haws was moved, he was working at the direction of the government in an effort to arrange the Chicago drug transaction. Accordingly, the court concludes that at that point, I-laws was working as a government agent. Further, he was actively engaged in soliciting information from Avila, at the direction of the government.
For the above reasons:
1. Mr. Avila's Motion to Dismiss the indictment is DENIED.
2. Mr. Avila's Motion to Suppress Statements is GRANTED IN PART AND DENIED IN PART: testimony from Mr. Haws concerning Mr. Avila's statements to him before Mr. Haws was moved to the Wasatch County Jail is not suppressed; testimony from Mr. Haws concerning Mr. Avila's statements to him after that time will not be admitted.
SO ORDERED