                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                         8
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


                                         9
(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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