The opinion of the court was delivered by: Simandle, U.S. District Judge
Defendant Christopher Booker has been charged in a three count criminal indictment with conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846, possession with intent to distribute approximately 149.5 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), and possession of two firearms in furtherance of a drug trafficking felony in violation of 18 U.S.C. § 924(c).
The Government seeks to introduce at trial statements allegedly made by Defendant to a jailhouse informant while incarcerated and outside the presence of counsel. Defendant has moved to suppress those statements under the Sixth Amendment. For the following reasons, that motion will be granted in part and the Court will permit the Government to introduce only certain of the challenged statements at trial.
The Court will summarize the facts only that bear upon the issues presented by this motion to suppress.
On October 29, 2004, Defendant was arrested at the Best Western Envoy Hotel in Atlantic City, New Jersey, for unlawful possession of firearms. The incident search of Booker's jacket revealed roughly 149 grams of crack cocaine. Following his arrest, Defendant was eventually put into custody at the Federal Detention Center ("FDC") in Philadelphia.*fn1 According to testimony offered at the suppression hearing, while Booker was incarcerated in early January, 2005, he approached another inmate in the prison law library in search of legal advice. The inmate whom Booker asked for help was David Blickley.
According to his testimony, Blickley was generally known among the prison population as "jailhouse lawyer." In fact, at he time he was approached by Booker, Blickley was preparing a legal writing for another inmate. Blickley testified that after Booker approached him, Blickley told Booker to wait roughly ten minutes. After that time elapsed, Blickley told Booker that he would help with him with his legal questions, but that Booker would have to be "completely truthful" regarding the facts of his case. According to Blickley, Booker then proceeded to tell him about having been arrested in Atlantic City, and that he was charged with possession of guns and drugs.*fn2 Booker then allegedly asked Blickley to do legal research for him regarding a statement he had given to the police and the search of the hotel room where the guns were found.
For each of the next twenty or so days, Booker and Blickley met in the law library and in each other's cells to talk about Booker's case. Blickley testified that he researched legal questions for Booker during this time, but at no time asked Booker any questions. According to Blickley, he made notes of his conversations with Booker on scraps of paper which he discarded. Blickley claims he took more detailed notes of his conversations with Booker between February 3 and February 8, 2005, and that on February 9 or 10 he created a handwritten four-page detailed summary of all the information he had learned from Booker during the more detailed meetings. (See Ex. G-11.)
In addition to being a "jailhouse lawyer," however, Blickley was, apparently unbeknownst to Booker, an experienced informant who had been providing information to various federal agencies since his arrest on a Hobbs Act robbery in 1998. According to Blickley, since 1998 he has cooperated against approximately seven different individuals. As a result of his cooperation in one of those matters, the Government filed a motion in 2001 under Rule 35(b), Fed. R. Crim. P., seeking a sentence reduction for Blickley,*fn3 who is currently serving a 300-month sentence plus 27 months' consecutive sentence for federal escape.
At the same time Blickley was ostensibly helping Booker with his case, he was cooperating with the Government on other unrelated matters as well. In fact, Blickley was being housed at the FDC in Philadelphia when Booker first approached him in January 2005 in connection with his cooperation in one of those other matters, a drug case. On January 25, 2005, Special Agent Heaney was proffering Blickley in yet another matter when Blickley volunteered certain information regarding Booker.*fn4
Specifically, during the January 25 proffer session with Heaney, Blickley allegedly stated that he had met Booker who had described his involvement in a bank robbery and a murder. Special Agent Heaney believed this information would be of particular interest to Special Agent Roselli, who Heaney knew at the time was investigating Booker's alleged involvement in the present drug distribution crimes. Heaney contacted Special Agent Roselli by telephone, and Roselli immediately left his office to interview Blickley.
During that meeting, Blickley stated to Special Agent Roselli that Booker had come to him for legal advice, and that Booker had confessed to certain crimes. Roselli received Blickley's oral statements about Booker on January 25th. Roselli testified that he instructed Blickley not to ask questions of Booker in any subsequent meetings, and that he was not to act as an agent of the Government. Special Agent Roselli testified that Blickley said he was familiar with the "rules," and that he would not question Booker. Blickley furnished no notes to Roselli at the January 25th interview. Special Agent Roselli subsequently prepared a fairly detailed contemporaneous summary of his January 25th interview of Blickley, in evidence as Ex. G-14.
After the January 25th meeting, Blickley became more detailed-oriented and elicited much more incriminating information from Booker. He interviewed Booker every day and kept track, for the first time, of the dates of the conversations and of what Booker said on each date. After these meetings, Blickley made notes, which he compiled on or about February 9th into a four page summary detailing the information he had learned from Booker, highlighting the meetings of February 3-8, 2005, in evidence as Ex. G-11. Blickley did not meet Agent Roselli again until March 23, 2005. In early March, 2005, at a proffer with Assistant United States Attorney Labrum on another unrelated investigation,*fn5 Blickley turned over to AUSA Labrum this four-page hand-written summary. (See Ex. G-11.) According to Blickley, AUSA Labrum immediately called Special Agent Roselli to tell him about Blickley's notes. As a result of the information Blickley provided, AUSA Labrum and Special Agent Roselli set up a proffer session with Blickley in this matter on March 23, 2005.
The Sixth Amendment provides in part that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The Sixth Amendment protects a defendant who is represented by a lawyer in an adversary proceeding from being questioned by any agent or employee of the government about his case outside the presence of his attorney. The Sixth Amendment therefore precludes the government from using an informant to directly interrogate a fellow inmate about his pending case, and any statement of the accused procured in violation of the Sixth Amendment must be suppressed. According to the Third Circuit, there are "three basic requirements for finding a Sixth Amendment violation: (1) the right to counsel must have attached at the time of the alleged infringement; (2) the informant must have been acting as a 'government agent'; and (3) the informant must have engaged in 'deliberate elicitation' of the incriminating information for the defendant." Matteo v. Superintendant, SCI Albion, 171 F.3d 877 (3d Cir. 1999) (citing Maine v. Moulton, 474 U.S. 159, 170-71 (1985); United States v. Henry, 447 U.S. 264, 269-70 (1980)).
Here, it is undisputed that at the time Defendant allegedly made the challenged statements to Blickley, his Sixth Amendment right to counsel had already attached.*fn6 The narrower issue before the Court is whether Blickley acted as a government agent and whether ...