New York Federal Criminal Practice Blog
October 8, 2007

EDNY Judge Suppresses Statements Obtained by Jailhouse Informant

Few prosecutors can resist the advances of a jailhouse informant, despite the fact that these entrepreneurial snitches are notoriously unreliable. In fact, Peter Neufeld of the Innocence Project has testified that his studies revealed jailhouse informants were used in 20% of the cases where wrongful convictions have been established. That conclusion is hardly a surprise: the combination of inmates facing or sentenced to lengthy prison terms, coupled with a system that rewards cooperation with sentence reduction, produces a powerful incentive to lie.

A recent decision by EDNY Judge Gershon, United States v. Pannell, 2007 WL 2750678 (E.D.N.Y. September 20, 2007), sets some welcome boundaries on the use of jailhouse informants. While the decision applied well-established precedent, and was carefully limited to the specific facts and credibility determinations presented, it nonetheless constitutes an excellent precedent for the per se suppression of statements obtained after prosecutors knowingly permit an informant to return to the cell of a defendant he has already ratted out.

Everold Miller, Pannell’s former cell-mate, was a classic needy and opportunistic jailhouse informant. Sentenced in Florida to over 22 years for drug offenses, he entered into a cooperation agreement with the government in the hope of reducing that sentence. Transferred to Brooklyn’s MDC to testify against some co-defendants, he was randomly assigned to Pannell’s cell, whereupon, as luck would have it, Pannell made several incriminating statements to him regarding his involvement in an armed robbery. At a proffer session, Miller relayed Pannell’s statements to prosecutors, who advised him that upon his return to his cell, he should not solicit any further information from Pannell about his pending case. Miller however continued to obtain incriminating statements from Pannell, memorializing them in copious notes. Pannell moved to suppress the statements as a violation of his Sixth Amendment right to counsel. The court held a hearing under Massiah v. United States, 377 U.S. 201 (1964), to determine if Miller (a) was a government informant who had (b) deliberately elicited the incriminating statements in question.

Judge Gershon denied suppression of the statements obtained before Miller’s first proffer session. Although during this period, Miller was a government agent with regard to other criminal matters, he was not a government agent vis à vis Pannell, in the absence of an express government instruction “to get information about [that] particular defendant.” (quoting United States v. Birbal, 113 F.3d 342 (2d Cir. 1997)).

Judge Gershon came to the opposite conclusion, however, with regard to the statements Miller obtained after his initial proffer with Pannell’s prosecutor. First, she rejected the government’s claim that Miller was not a government agent at this point. Miller became a government agent the moment he first reported Pannell’s statements and the government expressed interest in using those statements at trial. This status was not negated by the express instruction to Miller not to discuss Pannell’s case with him any further. The government was well aware that returning Miller – an eager and desperate cooperator – to Pannell’s cell “created the very situation . . . likely to induce Pannell to make incriminating statements without the assistance of counsel.”

Moreover, she found that Miller had deliberately elicited the additional incriminating statements. In part because of the high stakes Miller had in the outcome of his cooperation, she found Miller’s claim that he had merely acted as a “listening post” while Pannell volunteered additional detailed incriminating information to be incredible. As she pointed out – in words that would apply to most jailhouse informant cases – “Miller had great incentive to actively encourage Pannell to incriminate himself: Miller understood that any additional information he secured could serve as a basis for a reduction of his very lengthy sentence.” Accordingly, she suppressed all statements Miller obtained after his initial proffer with Pannell’s prosecutor. In so doing, one can argue, she effectively held that the mere fact of returning a jailhouse informant to the same cell where he had previously obtained incriminating statements from his cellmate amounts to “deliberate elicitation” under Massiah.

This case should also serve as a reminder to all defense attorneys to impress upon their incarcerated clients that loose lips sink ships.

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