UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4366
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DWAYNE MCFADDEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-564)
Submitted: June 12, 2006 Decided: June 28, 2006
Before KING and SHEDD,* Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Falkner Wilkes, CRAVEN & WILKES, Greenville, South Carolina, for
Appellant. Jonathan S. Gasser, United States Attorney, Rose Mary
Parham, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Florence, South Carolina, for Appellee.
*
Judge Shedd was a member of the original panel but did not
participate in this decision. This opinion is filed by a quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Dwayne McFadden appeals from his September 2004 conviction in
the District of South Carolina on one charge of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1).
Following a jury trial, McFadden was convicted on the sole count of
his indictment. On March 16, 2005, he was sentenced to 280 months
of imprisonment. In this appeal, McFadden contends that the
district court erred in admitting into evidence (1) the testimony
of two eye-witnesses who identified McFadden at the scene of his
arrest; and (2) testimony regarding statements McFadden made to a
jailhouse informant. The district court denied McFadden’s requests
to suppress the evidence concerning the identifications and his
statements. As explained below, we rejected his contentions of
error and affirm.
I.
The events underlying McFadden’s conviction, as revealed at
trial, are as follows: On the night of March 28, 2004, Danny
Johnson walked to a convenience store in Myrtle Beach, South
Carolina, accompanied by man he later identified as McFadden. As
they walked, Johnson noticed that McFadden had a silver handgun and
a blanket with a cartoon figure. Shortly thereafter, Johnson heard
a gunshot and flagged down a police officer, to whom he related
having heard the gunshot and his observations of McFadden. That
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same night, Patrick Hodge was working as a security guard at a
nearby nightclub. During his shift, Hodge refused to admit a man
to the club because he had no identification. Hodge noticed that
the man, later identified as McFadden, was carrying a silver
handgun with a brown handle and a Scooby Doo towel or blanket.
Hodge immediately reported those events to the police.
Subsequently, a police officer spotted McFadden, who was
carrying a Scooby Doo blanket, in the same area of Myrtle Beach,
and attempted to stop him. McFadden fled, however, and a short
chase ensued before he was detained by the officer. During a later
search of the area, police recovered a .32 caliber revolver, silver
with a brown handle, along the route McFadden had taken after he
was turned away from the nightclub. After the police handcuffed
McFadden and placed him in the back of a cruiser, they brought
Johnson to the cruiser and he identified McFadden as the man he had
seen with the handgun fifteen minutes earlier. The officers also
brought Hodge to the cruiser, where he identified McFadden as the
man he had refused to admit to the nightclub a few minutes earlier.
Hodge identified the silver handgun with a brown handle as the
firearm he saw McFadden carrying.
McFadden was indicted in August 2004, on a single count of
being a felon in possession of a firearm, and he was tried in
September 2004. Before trial, McFadden moved to suppress the
testimony of Johnson and Hodge about their March 28, 2004 pre-trial
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identifications, contending that the circumstances surrounding them
were unduly suggestive and contravened his due process rights.
After conducting a non-jury evidentiary hearing on the issues, the
court determined that the identifications had been constitutionally
conducted, and thus permitted Johnson and Hodge to testify before
the jury.
At trial, the prosecution presented the testimony of Dr. David
Michael Woodward, a convicted felon who testified that McFadden had
confessed to him in the Florence County (South Carolina) Detention
Center, after McFadden had been indicted and just prior to his
trial. According to Woodward, McFadden admitted that he had fled
from the police on September 28, 2004, because he was a felon in
possession of a firearm, which he knew to be illegal. Woodward, a
former medical doctor with a law degree, acknowledged at trial that
he had previously been sentenced to fifteen years in prison for
running an illegal “pill-mill” operation that distributed
controlled substances in South Carolina, but he denied that he had
been directed by prosecutors to secure McFadden’s inculpatory
statements. See United States v. Alerre, 430 F.3d 681, 684-85 (4th
Cir. 2005). Woodward also admitted that he had previously
testified for the prosecution against his own co-defendants and
against four or five other defendants he had met in jail. His
earlier testimony, which included various incriminating jailhouse
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statements made to him, had been provided in an effort by Woodward
to secure a reduction of his own sentence.
Prior to trial, McFadden had moved to exclude Woodward’s
testimony from the prosecution’s case, contending that he was a
Government agent who had deliberately elicited McFadden’s jailhouse
statements in September 2004, after McFadden had been indicted in
August 2004, in violation of McFadden’s Sixth Amendment right to
counsel. The Government maintained, however, that it had not
directed Woodward to obtain any information from McFadden and that
it had nothing to do with Woodward’s placement in jail with
McFadden. In declining to suppress Woodward’s testimony, the court
found no evidence that the Government had directed Woodward to
elicit McFadden’s jailhouse statements, and it determined there had
been no violation of his right to counsel.
McFadden was convicted on September 28, 2004, of being a felon
in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1).
As noted, he was then sentenced to 280 months imprisonment.
McFadden has timely noted an appeal from his conviction, and we
possess jurisdiction under 28 U.S.C. § 1291.
II.
In assessing an appeal concerning the denial of a suppression
motion, we review the district court’s factual findings for clear
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error and its legal conclusions de novo. United States v. Johnson,
114 F.3d 435, 439 (4th Cir. 1997).
III.
A.
In his first contention on appeal, McFadden maintains that the
eye-witness identifications made of him at the scene of his arrest
were so unduly suggestive as to contravene his due process rights,
and that the trial court therefore erred in denying his motion to
exclude the identifications from his trial. The admission of a
pre-trial identification before a jury may contravene due process
if, in the totality of the circumstances, the identification
procedure is so unduly suggestive and conducive to mistake as to
render the identification unreliable. United States v. Johnson,
114 F.3d 435, 441 (4th Cir. 1997). The Supreme Court has
established a two-step analysis for assessing whether testimony
regarding a pre-trial identification should be admitted into
evidence. United States v. Wilkerson, 84 F.3d 692, 695 (4th Cir.
1996) (citing Manson v. Brathwaite, 432 U.S. 98 (1977); Neil v.
Biggers, 409 U.S. 188 (1972)). First, the court must assess
whether the challenged pre-trial identification was unduly
suggestive. Id. If the procedure was unduly suggestive, however,
the identification evidence may nonetheless be deemed admissible if
it was reliable. Id. The pertinent factors in assessing
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reliability include: (1) the witness’s opportunity to view the
perpetrator at the time of the offense; (2) the witness’s degree of
attention at the time of the offense; (3) the accuracy of the
witness’s prior description of the perpetrator; (4) the witness’s
level of certainty when identifying the defendant as the
perpetrator at the time of the confrontation; and (5) the length of
time between the offense and the confrontation. Id.
After weighing the pertinent factors, the district court
concluded that the challenged pre-trial identifications were
sufficiently reliable to be admitted into evidence before the jury.
Johnson and Hodge each had an ample opportunity to view McFadden in
possession of the handgun in well-lit areas during their respective
interactions with him. Each witness identified McFadden within a
short period of time after the offense took place — Hodge’s
identification occurred within five minutes and Johnson identified
McFadden within fifteen minutes. Their respective descriptions of
McFadden, including his cartoon blanket and the handgun, were
consistent with each other and with the evidence. And Johnson and
Hodge were definitive in their pre-trial identifications. Finally,
as we have recognized, “show-up” pre-trial identifications,
conducted promptly after the commission of an offense — such as
those conducted here — have been “consistently found to satisfy []
due process standards and not [to involve] ‘undue suggestiveness.’”
Stanley v. Cox, 486 F.2d 47, 51 (4th Cir. 1973). In these
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circumstances, the district court did not err in deeming the
challenged pre-trial identifications to be sufficiently reliable,
and their admission at trial did not contravene McFadden’s due
process rights.
B.
Next, McFadden contends that his Sixth Amendment right to
counsel was contravened when Woodward elicited incriminating
jailhouse statements from McFadden, and that Woodward thus should
not have been permitted to testify to those statements at
McFadden’s trial. An accused’s Sixth Amendment right to counsel is
violated when incriminating statements are “deliberately elicited”
by the Government, secured after a defendant has been indicted and
outside the presence of his counsel, and the statements are
admitted at trial. Massiah v. United States, 377 U.S. 201, 206
(1964). The Government’s utilization of testimony from such an
informant, however, does not contravene a defendant’s rights unless
it is established that the informant was acting as the Government’s
agent when the jailhouse statements were secured. Such an
informant’s activity may only be ascribed to the Government if the
prosecutors have intentionally placed the informant in the jail
cell with instructions to elicit a confession, or if there has been
an agreement promising consideration for a confession from a
particular defendant. United States v. Love, 134 F.3d 595, 604
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(4th Cir. 1998). The Sixth Amendment is not contravened where “by
luck or happenstance [] the State obtains incriminating statements
from the accused after the right to counsel has attached.” Id.
(citing Maine v. Moulton, 474 U.S. 159, 176 (1985)).
Assuming that Woodward acted deliberately in eliciting
McFadden’s jailhouse statements, however, the trial court
specifically found that Woodward was not then acting on behalf of
the Government and concluded that McFadden’s Sixth Amendment rights
were not violated. As the court noted, the Government denied that
it had intentionally placed Woodward in McFadden’s cell or that it
had provided instructions to Woodward regarding McFadden. And, as
McFadden’s lawyer conceded in the district court, there was no
evidence that the Government had promised Woodward anything in
exchange for obtaining McFadden’s confession. Although Woodward
had assisted the prosecutors in other cases, his prior cooperation
does not establish that he was acting as the Government’s agent in
this instance. See Love, 134 F.3d at 604. The evidence revealed
that Woodward undertook his conversations with McFadden on his own
initiative. Accordingly, the trial court did not err in declining
to suppress Woodward’s testimony.
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IV.
Pursuant to the foregoing, we affirm McFadden’s conviction.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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