The opinion of the court was delivered by: Gershon, United States District Judge
Defendant Derrek Pannell moves to suppress post-indictment statements he allegedly made to his cellmate, Everold Miller, while awaiting trial at the Metropolitan Detention Center ("MDC"). Pannell contends that the government procured these statements -- through Miller, a "jailhouse informant" -- in violation of his Sixth Amendment right to counsel.*fn1 In response to Pannell's motion, the court held an evidentiary hearing, pursuant to Massiah v. United States, 377 U.S. 201 (1964), on August 30, 2007. During the hearing, the government offered Miller's testimony and that of the case agent who interviewed Miller on two separate occasions. Pannell's previous counsel testified for the defense. Based on my findings of fact, and for the reasons stated below, Pannell's motion to suppress is granted in part and denied in part.
Derrek Pannell was arrested on July 26, 2006, for the November 15, 2005 armed robbery of the James E. Davis United States Post Office in Brooklyn, New York. After his arrest, Pannell was indicted for the robbery and was housed in the MDC.
In February 2007, Everold Miller, Pannell's former cellmate, contacted Assistant United States Attorney ("AUSA") John Nathanson of the Eastern District of New York and explained that he had information regarding Pannell's participation in the November 15, 2005 armed robbery. Miller was not, at that time, new to government cooperation. Approximately three and a half years ago, Miller pled guilty to drug trafficking and conspiracy charges in the Southern District of Florida and was sentenced to 266 months in prison for his participation in those crimes. Subsequently, Miller entered into a cooperation agreement with the government in which he agreed to provide information about and testify against his co-defendants in the hope of receiving a reduced sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Sometime thereafter, Miller was transferred to the MDC so that he could testify against several of his co-defendants who were being tried in the Eastern District of New York. Miller testified in that case in January 2007. In addition to cooperating in his own criminal case, Miller has, over time, provided information to the government about other, unrelated crimes. In general, Miller has reported to the government any information he has learned that he believed would be helpful to the government.
Shortly after testifying in January 2007, the Bureau of Prisons randomly assigned Miller to a cell with Pannell.*fn2 The designation was not done with the government's knowledge or involvement. Accordingly, at that time, Miller had not been instructed by the government to ask Pannell about his case or the armed robbery of the post office. Miller did understand, however, from the day he first entered into his cooperation agreement with the government, that any information he could provide to the government regarding any criminal matter would be to his benefit. Specifically, Miller understood that providing such information could serve as a further basis for Rule 35 relief.
Upon hearing Miller's offer of information, AUSA Nathanson told Miller that he would speak to the AUSA who was handling the Pannell matter. Shortly thereafter, AUSA Nathanson informed AUSA John Durham that Miller had information relating to the armed robbery. On March 6, 2007, AUSA Durham and U.S. Postal Inspector Vincent Minecci -- the case agent for this matter -- debriefed Miller regarding his knowledge of the armed robbery and Pannell's involvement in it.*fn3 In sum and substance, Miller stated that Pannell admitted to participating in the armed robbery of the post office and provided certain detailed information. In addition, Miller provided detailed, handwritten notes to the government which he said he took while and after Pannell spoke about his case.*fn4 At the conclusion of the March 6, 2007 meeting, both AUSA Durham and Postal Inspector Minecci specifically instructed Miller that Pannell was represented by counsel, that he (Miller) should not attempt to discuss the armed robbery of the post office or Pannell's pending case with Pannell, and that he (Miller) should not go through Pannell's belongings. Miller was then returned to his cell at the MDC, where Pannell continued to reside.
In early April 2007, AUSA Durham learned that Miller had additional information relating to the post office robbery. On April 17, 2007, Postal Inspector Minecci met with Miller a second time and debriefed him further regarding the information Miller learned about the robbery of the post office.*fn5 Miller provided additional incriminating information regarding Pannell. He also submitted detailed, handwritten notes to Postal Inspector Minecci, which Miller represented were taken while and after Pannell spoke about the robbery. When asked how he acquired this information, Miller explained that Pannell volunteered it during the course of their many conversations. Miller told Postal Inspector Minecci that Pannell often brought up his case and that he (Miller) had never elicited any information regarding the robbery. Specifically, Miller told Postal Inspector Minecci that he would converse with Pannell about general matters, like cars or Pannell's family, and that Pannell would ultimately relate those issues to aspects of his case. Miller represented to Postal Inspector Minecci that he never encouraged Pannell to address the robbery or his case in general. At the conclusion of the meeting, Miller was again instructed not to solicit any information from Pannell regarding the pending case.
Sometime after the second meeting, but before August 2007, Postal Inspector Minecci received additional notes from Miller.*fn6 Those notes, dated April 20, 2007, contain additional incriminating information regarding Pannell. Also in April 2007, Miller was removed from Pannell's cell after Miller complained to MDC staff that Pannell had stolen his legal papers. Among the papers that Miller claimed to have been stolen were the notes Miller had been taking regarding Pannell's alleged statements.
At the Massiah hearing, the defense suggested, through the cross-examination of Miller, that Miller obtained the information he claims was told to him by Pannell by surreptitiously reading Pannell's legal papers.*fn7
The government violates a defendant's Sixth Amendment right to counsel when it uses, as evidence, statements made by the defendant "which [it] had deliberately elicited from him after he had been indicted and in the absence of his counsel." Massiah v. United States, 377 U.S. 201, 206 (1964). These principles apply with equal force in the jailhouse informant context. United States v. Henry, 447 U.S. 264 (1980). To make out a Massiah violation, a defendant must show that (i) a government informant (ii) deliberately engaged in elicitation. Massiah, 377 U.S. at 206; see also United States v. Stevens, 83 F.3d 60, 64 (2d Cir. 1996).
The first inquiry, then, is whether the informant acted as a government agent when he obtained information from the defendant. The Second Circuit has held that an informant becomes a government agent "only when the informant has been instructed by the police to get information about the particular defendant." United States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997). Because "[t]he Massiah rule covers only those statements obtained as a result of an intentional effort on the part of the government[,] . . . information gotten ...