UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4830
CORY L. CLARK,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-00-381)
Submitted: May 16, 2002
Decided: May 24, 2002
Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Douglas A. Ramseur, BOWEN, BRYANT, CHAMPLIN & CARR,
Richmond, Virginia, for Appellant. Paul J. McNulty, United States
Attorney, Peter S. Duffey, Special Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CLARK
OPINION
PER CURIAM:
Following a jury trial and the imposition of sentence, Cory L. Clark
appeals from the district court’s order denying his motion to dismiss
and to suppress evidence of incriminating statements he made to fel-
low inmates Bernard Noel and Derrick Harris. He contends that Noel
and Harris obtained the statements while acting as government agents
in violation of his Sixth Amendment right to counsel. Finding no
error, we affirm.
The Sixth Amendment right to counsel is violated when the Gov-
ernment "deliberately elicit[s]" incriminating statements from a crimi-
nal defendant after he has been indicted and outside the presence of
counsel. Massiah v. United States, 377 U.S. 201, 206 (1964); see
United States v. Love, 134 F.3d 595, 604 (4th Cir. 1998). However,
this right is "not violated whenever—by luck or happenstance—the
[Government] obtains incriminating statements from the accused after
the right to counsel has attached." Maine v. Moulton, 474 U.S. 159,
176 (1985); see also Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986)
(holding that "defendant must demonstrate that the police and their
informant took some action, beyond merely listening, that was
designed deliberately to elicit incriminating remarks").
Here, the district court found no evidence that the Government
instructed Noel to be alert for and to report incriminating statements
by other inmates and found that no incentive was offered by the Gov-
ernment for such reporting. The court also noted that here, as in Love,
the informant initiated the contact with the Government. Although
Noel, like the informant in Love, may have had an expectation of
future favors from the Government in return for his assistance, none
was promised. Because these "crucial indicia of government coopera-
tion" were lacking, we find that there was no Sixth Amendment viola-
tion. Love, 134 F.3d at 604.
Accordingly, we affirm the district court’s order denying Clark’s
motion to dismiss and suppress. We dispense with oral argument
UNITED STATES v. CLARK 3
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED