     11-2142-cr
     United States v. Jacques


 1                      UNITED STATES COURT OF APPEALS

 2                              FOR THE SECOND CIRCUIT

 3                                 August Term, 2011

 4   (Argued:    May 31, 2012                       Decided: July 9, 2012)

 5                              Docket No.   11-2142-cr

 6   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

 7   UNITED STATES OF AMERICA,
 8             Appellant,
 9                v.

10   MICHAEL JACQUES,
11             Defendant-Appellee.

12   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

13   B e f o r e:      WINTER, CHIN, and DRONEY, Circuit Judges.

14         Interlocutory appeal from pre-trial orders of the United

15   States District Court for the District of Vermont (William K.

16   Sessions, III, Judge) excluding evidence that the government

17   sought to offer in the punishment phase of a capital case.        We
18   affirm in part and vacate in part.

19                                   WILLIAM B. DARROW, Assistant United
20                                   States Attorney (Craig S. Nolan, Paul
21                                   J. Van De Graaf, and Gregory L.
22                                   Waples, Assistant United States
23                                   Attorneys, on the brief,) for Tristram
24                                   J. Coffin, United States Attorney for
25                                   the District of Vermont, Burlington,
26                                   Vermont, for Appellant.
27
28
29

                                                          1
 1                              DAVID A. RUHNKE (Jean D. Barrett,
 2                              Ruhnke & Barrett, Montclair, New
 3                              Jersey, and Michael L. Desautels and
 4                              Barclay T. Johnson, Office of the
 5                              Federal Public Defender, Burlington,
 6                              Vermont, on the brief), Ruhnke &
 7                              Barrett, Montclair, New Jersey, for
 8                              Defendant-Appellee.
 9

10   WINTER, Circuit Judge:

11        The government appeals from Judge Sessions’s in limine

12   ruling excluding certain evidence from the penalty phase of a

13   death penalty case.    After obtaining an indictment against

14   Michael Jacques for the kidnapping, rape, and murder of a

15   12-year-old girl, the government filed a Notice of Intent to Seek

16   the Death Penalty (“Notice”).   Included in the Notice, as

17   required by the Federal Death Penalty Act, 18 U.S.C. § 3591, et

18   seq., were allegations of aggravating factors the government

19   proposed to put before the jury in the penalty phase that would

20   follow a conviction.   These factors included allegations of six

21   prior rapes and an attempt to obstruct justice by influencing

22   the testimony of a juvenile witness/victim.

23        In pre-trial orders, Judge Sessions struck allegations of

24   three of the prior rapes from the Notice under 18 U.S.C. §

25   3593(c) and suppressed evidence of the attempt to obstruct

26   justice as having been obtained in violation of the Sixth

27   Amendment.   The government appealed.

28        We affirm the exclusion of evidence of two of the alleged

29   prior rapes, remand the third for reconsideration but leave the

                                       2
 1   outcome to the district court’s discretion, and vacate the

 2   exclusion of evidence of the attempted obstruction of justice.

 3   We address each issue in turn.
 4   a)   Prior Rapes
 5         1) Relevant Facts

 6         In the Notice, the government alleged several prior rapes by

 7   Jacques.   The alleged victims included four juveniles and two

 8   adults, whom we refer to as J1-J4 and A1-A2, respectively.     The

 9   district court ruled that evidence of the rape of J1 was

10   admissible during the penalty phase.   Briefly stated here, and

11   more fully discussed infra, defendant’s sexual contacts with J1

12   occurred over several years and were in part contemporaneous with

13   the kidnapping/rape/murder in the present matter which is alleged

14   to have occurred in 2008.   Moreover, defendant is alleged to have

15   used J1 to lure the murdered 12-year old to her encounter with

16   Jacques.

17         The court also allowed the admission of evidence of the rape

18   of A2 in the penalty phase.    This crime occurred in 1992 and

19   resulted in a kidnapping and rape conviction.   A1 has died, and

20   the government no longer seeks to introduce evidence with regard

21   to her.

22         The court excluded evidence concerning J2, J3, and J4, and

23   the government has appealed.   We turn now to these rulings.

24         In January 1985, J2, a younger relative of Jacques, sought

25   an abortion, which came to the attention of law enforcement

                                       3
 1   authorities.    J2 told the Vermont State Police that she was

 2   pregnant as a result of being raped by Jacques, who was then 18.

 3   Jacques admitted that he had “experimented” with J2 and was

 4   arraigned on various charges; however, the case was dismissed

 5   after the family decided not to pursue the case.

 6        Jacques is accused of raping J3 around the same time.         She

 7   was a young girl who spent the night at Jacques’s residence with

 8   a younger sibling.       J3 never reported this incident to the police

 9   because she feared that they would not believe her.

10        Finally, Jacques is alleged in 1987 to have raped J4,

11   another young girl, who was a friend of one of Jacques’s younger

12   siblings.    The rape is alleged to have occurred after Jacques

13   provided alcohol to her at his apartment.      J4's school nurse

14   learned of the rape and called the police.      Following an

15   investigation, Jacques was arrested and charged.      After pleading

16   guilty to lewd and lascivious conduct, he was given a three-year

17   deferred sentence.

18        The district court struck the allegations concerning J2, J3,

19   and J4 from the Notice, concluding that, because the conduct

20   alleged was unadjudicated and over twenty years old, their

21   probative value was outweighed by their potential prejudice.

22        2)     Discussion

23        Evidentiary rulings under 18 U.S.C. § 3593© are reviewed

24   only for abuse of discretion.      See United States v. Fell, 531

25   F.3d 197, 209 (2d Cir. 2008).

                                          4
 1        The government argues that the exclusion of these

 2   allegations will deprive the jury of a full picture of Jacques’s

 3   personal characteristics and his past conduct as a serial rapist.

 4   The government also argues that the district court based its

 5   ruling with regard to the allegations concerning J4 on an

 6   erroneous finding of fact because those allegations were in fact

 7   adjudicated.   Section 3593© provides that in the penalty phase of

 8   a capital case, “[i]nformation is admissible regardless of its

 9   admissibility under the rules governing admission of evidence at

10   criminal trials except that information may be excluded if its

11   probative value is outweighed by the danger of . . . creating

12   unfair prejudice, confusing the issues, [or] misleading the

13   jury.”    The standard for exclusion of evidence under this Section

14   is broader than under Fed. R. Evid. 403, which allows the

15   exclusion of relevant evidence “if its probative value is

16   substantially outweighed by a danger of . . . unfair prejudice,

17   confusing the issues, [or] misleading the jury.”   (emphasis

18   added).
19        Generally, “more evidence, not less, should be admitted on

20   the presence or absence of aggravating and mitigating factors” in
21   the penalty phase of a capital case.   Fell, 531 F.3d at 219 n.12
22   (emphasis in original) (quoting United States v. Fell, 360 F.3d

23   135, 143 (2d Cir. 2004)).   Nevertheless, district courts “retain

24   the discretion to exclude any type of unreliable or prejudicial

25   evidence.”   United States v. Pepin, 514 F.3d 193, 204 (2d Cir.

26   2008)(quoting Fell 360 F.3d at 145).

                                       5
 1        Defendant’s alleged conduct toward J2, J3, and J4 is alleged

 2   to have occurred almost, or over, twenty-five years ago.   Such

 3   remoteness reduces the reliability of testimony as to the events’

 4   occurrences.   In the case of J2 and J3, the danger of

 5   unreliability is somewhat enhanced by the lack of a relatively

 6   contemporaneous adjudication.   In the case of J4, there was an

 7   adjudication, but the resultant judgment was not for rape.    There

 8   is, moreover, murkiness as to each with regard to whether, or how

 9   much, coercion was involved.    Finally, the remoteness of the

10   allegations also reduces their probative value with regard to

11   Jacques’s character because he was a youth himself at the time.

12   Cf. Fed. R. Evid. 609(b) (suggesting that the probative weight of

13   prior crimes used to impeach character is less reliable once

14   significant time has passed); United States v. Figueroa, 618 F.2d

15   934, 942 (2d Cir. 1980) (“[B]oth Rule 609 and Rule 403, which is

16   pertinent here, oblige the trial court to assess the probative

17   value of every prior conviction offered in evidence and the

18   remoteness of a conviction, whatever its age, is always pertinent
19   to this assessment.”).

20        Therefore, although we might well have ruled otherwise were

21   we in the district court’s position, we conclude that the court

22   acted within its considerable discretion to rule that the lack of

23   reliability of the allegations with regard to J2, J3, and J4




                                       6
 1   outweighed their probative values.1        However, the district court

 2   based its order concerning J4 in part on the assumption that

 3   those allegations were unadjudicated.         In fact, Jacques pleaded

 4   guilty to lewd and lascivious conduct in connection with his

 5   conduct with J4.     We vacate the order with regard to the

 6   allegations regarding her and remand for the district court to

 7   reconsider its ruling in light of that adjudication.           We add,

 8   however, that the district court would still be within its

 9   discretion to conclude that the age of these allegations and the

10   ambiguity of the plea as to rape is sufficient to warrant their

11   exclusion under § 3593©.
12   b)   Obstruction of Justice
13         1) Relevant Facts

14         Because the obstruction of justice relates to evidence of

15   the underlying offense, we briefly set out pertinent allegations

16   with regard to those charges.

17         The government alleges that in 2003 Jacques concocted a

18   scheme to sexually abuse the then nine-year-old J1.           This scheme
19   involved making J1 believe that a fictitious organization named

20   “Breckenridge” would kill her and her family if she did not



           1
             We note that the district court is free to alter these rulings, if
     appropriate, as the case progresses. See Palmieri v. Defaria, 88 F.3d 136,
     139 (2d Cir. 1996) (A ruling in limine “is subject to change when the case
     unfolds.” (quoting Luce v. United States, 469 U.S. 38, 41-42 (1984))). Such a
     change may be in the court’s discretion if these allegations become necessary
     to rebut evidence offered by the defense concerning Jacques’s past. See,
     e.g., Luce, 469 U.S. at 41-42 (change of in limine ruling may be appropriate
     where defendant introduces testimony contrary to statements given in a
     proffer).


                                          7
 1   follow the group’s instructions.       Jacques allegedly sent e-mail

 2   messages from two accounts seemingly owned by members of

 3   Breckenridge named “Charles” and “Eric.”      The e-mails told J1

 4   that Jacques was to act as her “sexual trainer” and advised her

 5   to engage in various sex acts with Jacques.      When J1 protested,

 6   she received e-mail threats that included the killing of family

 7   pets.    Jacques’s exploitation of J1 through “Breckenridge”

 8   continued until 2008, when J1 was 14 years old.

 9           In May 2008, J1 received messages from Breckenridge that a

10   12-year-old named Brooke needed to be terminated and that J1 was

11   to help in the termination by inviting Brooke to a party.      On the

12   morning of the party in late June 2008, Jacques and J1 picked

13   Brooke up and drove to a convenience store about ten minutes from

14   Jacques’s home.    Once there, Jacques dropped Brooke off in front

15   of the store’s surveillance camera but told her to walk to a

16   nearby spot where they would pick her up.      Jacques and J1 then

17   allegedly left but circled back to pick Brooke up.      The

18   government alleges that Jacques then drugged, raped, and murdered

19   Brooke.

20           Four days later on June 29, 2008, police discovered the e-

21   mails from Eric and Charles to J1 and traced them to Jacques’s

22   computer.    Jacques was then arrested and detained on a state

23   charge of sexually assaulting J1.      On July 1, 2008, a federal

24   criminal complaint was filed charging Jacques with the kidnapping

25   of Brooke, and, on July 2, her body was discovered.      At his

26   initial appearance on July 7, the court appointed the Office of

                                        8
 1   the Federal Public Defender to represent Jacques on the federal

 2   kidnaping charge.

 3        On July 4 and 8, while in custody, Jacques sent letters to

 4   his friend Michael Garcia.   These letters asserted Jacques’s

 5   innocence and asked Garcia for help.   On July 10, Jacques called

 6   Garcia and asked him to come from Arizona to Vermont, stating

 7   that he could not talk to Garcia on the monitored prison phone.

 8   He also suggested that Garcia pose as Jacques’s attorney in a

 9   civil matter and call on the attorney line, which was not

10   monitored.   The next day, Garcia contacted the authorities.    The

11   government obtained a recording of the phone conversation between

12   Jacques and Garcia.   A “taint team” consisting solely of

13   government agents and attorneys not working on the case pending

14   against Jacques was assigned to investigate.

15        On July 13, Jacques called Garcia again and asked him to

16   call on the prison’s attorney line, stressing that time was of

17   the essence and that Garcia was Jacques’s last hope.   Jacques

18   followed up with another letter, dated July 14, requesting

19   Garcia’s help and assuring him that it would require only a few

20   e-mails and text messages.

21        On July 16, FBI agents met with Garcia and helped him place

22   a recorded telephone call to Jacques on the attorney line.

23   Prior to the call, the agents instructed Garcia not to ask

24   Jacques anything about the crimes charged.   During the call,

25   Jacques told Garcia that he was being framed by some “bad guys”

26   who were involved with J1.   Jacques said that he needed Garcia to

                                      9
 1   send messages to J1 telling her that the bad guys were still out

 2   there.   To accomplish this, Jacques gave Garcia J1’s cell phone

 3   number and suggested what he should say in messages to her.

 4   After this conversation, Jacques again sent Garcia letters

 5   begging for his help and expressing dismay that Garcia had not

 6   contacted him again.

 7        Garcia called Jacques on July 22, a call again recorded by

 8   the FBI.   Jacques stated that the “plan” to contact J1 needed to

 9   be carried out soon because the indictment had not yet issued.

10   He also instructed Garcia to take precautions, such as using a

11   secondary hard drive or sending e-mail messages from internet

12   cafes, to prevent the messages from being tracked back to Garcia.

13   Garcia made yet another recorded call to Jacques on July 24,

14   during which Jacques again asked Garcia to contact J1 and told

15   Garcia that he had mailed a package to him that would explain

16   what steps he should take.

17        The package of instructions told Garcia to send J1 messages

18   in the names of Eric and Charles from Breckenridge.   The messages

19   would instruct her to inform the authorities and the media that

20   Jacques had been framed and to tell Jacques’s wife that he had

21   been framed.   Garcia was instructed, if necessary, to e-mail J1

22   as Eric, telling her to send “editorials” to major newspapers

23   stating that Jacques was innocent.   Jacques also gave

24   instructions on the timing of these steps and recommended that

25   Garcia send these e-mails from public computers in other states.

26

                                     10
 1         The next recorded conversation between Jacques and Garcia

 2   took place on July 28.      Garcia told Jacques that he was flying to

 3   Vermont to meet him.      Jacques instructed Garcia on how to visit

 4   the facility posing as his attorney.         The FBI again instructed

 5   Garcia not to initiate any inquiries about the charges pending

 6   against Jacques or to talk about Jacques’s lawyers.            On July 30

 7   and 31, Garcia visited Jacques in prison, where their

 8   conversations were recorded by the FBI.          During these

 9   conversations, Jacques sought confirmation of Garcia’s receipt of

10   the package, reiterated that Garcia should use a second hard

11   drive or public computer to send the messages to J1, and told

12   Garcia to expect to be contacted by the authorities.

13         Throughout these telephone calls and meetings, Jacques

14   frequently asserted that he was innocent; that he was set-up by

15   Breckenridge, who planted evidence in the form of Google

16   searches, e-mails, and orders of items such as handcuffs; and

17   that he had simply dropped Brooke off at the convenience store

18   the morning that she had gone missing.          Garcia asked two

19   clarifying questions and told Jacques that he would assist with

20   the plan.2   On one occasion, contrary to the FBI’s instructions,

21   Garcia actively sought information unrelated to what Jacques was

22   already telling him.      The question concerned Jacques’s prior

23   criminal conduct allegedly committed during the early 1980’s

24   about which Garcia was curious.

           2
             As noted by the district court, when Jacques stated that the actual
     killers had planted evidence, Garcia asked “[W]hat did they do? What, what
     kind of evidence?”, to which Jacques was largely unresponsive. Garcia also
     asked whether Jacques’s arrest occurred at the time Brooke’s body was found.

                                          11
 1         After these meetings, the taint team sent copies of

 2   Jacques’s packet of instructions and transcripts of the phone

 3   calls to Jacques’s defense counsel, along with a letter

 4   explaining the events and giving counsel ten days to object

 5   before the taint team provided the materials to the prosecution.

 6   The defense did not object within the ten days.

 7         Jacques moved to suppress this evidence as obtained in

 8   violation of his Sixth Amendment rights.          Noting that kidnapping

 9   and obstruction of justice were separate charges, the district

10   court stated that this evidence would “clearly be admissible at a

11   separate trial for obstruction of justice” but nevertheless

12   concluded that the evidence was inadmissible in the present

13   prosecution.

14         The district court concluded that the government had

15   knowingly circumvented Jacques’s right to counsel on the

16   kidnapping/rape/murder charges under Massiah v. United States,

17   377 U.S. 201 (1964).      The court reasoned that it was foreseeable

18   that Jacques would confide in Garcia due to their longstanding
19   friendship and that incriminating evidence about the current

20   charges would be obtained because the obstruction plan was
21   focused on avoiding those charges.3
22

           3
             The government also disputes the district court’s conclusion that,
     based on Estelle v. Smith, 451 U.S. 454 (1981), the suppression of evidence
     obtained in violation of the Sixth Amendment applies to the penalty as well as
     the guilt phase of a capital case. Given our disposition of this matter, we
     need not, and do not, address this issue.


                                          12
 1        2) Discussion

 2        The facts pertinent to Jacques’s Sixth Amendment claim are

 3   embodied in correspondence and recorded conversations and are,

 4   therefore, undisputed.    The question of whether the district

 5   court applied the correct legal standard to those facts is a

 6   question of law to be resolved de novo.    See United States v.

 7   Vasquez, 389 F.3d 65, 75 (2d Cir. 2004).    We turn, therefore, to

 8   that standard.

 9        “[A]fter the . . . right to counsel attaches and is invoked,

10   any statements obtained from the accused during subsequent

11   police-initiated custodial questioning regarding the charge at
12   issue . . . are inadmissible.”   McNeil v. Wisconsin, 501 U.S.
13   171, 179 (1991).   This exclusionary rule applies not only to

14   questioning by identified police officers, but also to statements

15   obtained where the government uses “an undercover agent to

16   circumvent the Sixth Amendment right to counsel.”   Illinois v.

17   Perkins, 496 U.S. 292, 299 (1990).

18        However, “a defendant does not make out a violation of [the
19   Sixth Amendment] simply by showing that an informant, either

20   through prior arrangement or voluntarily, reported his
21   incriminating statements to the police.”   Kuhlmann v. Wilson, 477
22   U.S. 436, 459 (1986).    Rather, a defendant’s rights are violated

23   only when the government uses “investigatory techniques that are

24   the equivalent of direct police interrogation.”   Id.    Therefore,

25   the Sixth Amendment does not “forbid[] admission in evidence of


                                      13
 1   an accused’s statements to a jailhouse informant who was ‘placed

 2   in close proximity but [made] no effort to stimulate

 3   conversations about the crime charged.’”          Id. at 456 (alteration

 4   in original)(quoting United States v. Henry, 447 U.S. 264, 271

 5   n.9 (1980)).    Instead, a “defendant must demonstrate that the

 6   police and their informant took some action, beyond merely

 7   listening, that was designed deliberately to elicit incriminating

 8   remarks.”    Id. at 459.

 9         Moreover, the government does not violate the Sixth

10   Amendment rights of a defendant charged with a crime by

11   investigating or interrogating that defendant with regard to a
12   separate crime that has not been charged.          See Maine v. Moulton,
13   474 U.S. 159, 180 (1985).       This is true even where the latter

14   crime is “‘factually related’ to a charged offense,” so long as

15   the offense being investigated is not considered the “same

16   offense” for the purposes of determining the applicability of the

17   Fifth Amendment’s Double Jeopardy Clause.          Texas v. Cobb, 532
18   U.S. 162, 168, 172-73 (2001).4



           4
             Prior to the Supreme Court’s opinion in Cobb, several circuits had
     interpreted the opinions in Brewer v. Williams, 430 U.S. 387 (1977), and
     Moulton to suggest that a defendant’s Sixth Amendment right extends to charges
     under investigation that are “so inextricably intertwined . . . that the right
     to counsel for the pending charge cannot constitutionally be isolated from the
     right to counsel for the uncharged offense.” United States v. Covarrubias,
     179 F.3d 1219, 1223-24 (9th Cir. 1999) (collecting cases). That conclusion
     was explicitly rejected by the Court. See Cobb, 532 U.S. at 168, 172-73.
           However, incriminating statements relating to a charged offense obtained
     during an investigation of a separate offense are “inadmissible at the trial
     of [the charged offense], . . . if, in obtaining this evidence, the State
     violated the Sixth Amendment by knowingly circumventing the accused’s right to
     the assistance of counsel.” Moulton, 474 U.S. at 180.


                                          14
 1          Therefore, it is not enough to show a foreseeability that

 2   Jacques’s friendship with Garcia would lead Jacques to say things

 3   he would not say to someone identified as a law enforcement

 4   agent.   To prove a violation of the Sixth Amendment, Jacques must

 5   also show that Garcia took actions amounting to an “indirect and

 6   surreptitious [interrogation]” of Jacques with regard to the

 7   kidnapping/rape/murder offenses.       Kuhlmann, 477 U.S. at 458

 8   (internal quotation marks omitted).      In our view, Garcia took no

 9   such actions.
10          Unlike Henry, where a jailhouse informant who was paid for
11   producing only useful information on pending charges had

12   ingratiated himself with a fellow prisoner through conversations,

13   447 U.S. 264, 270, 274 n.12 (1980), or Moulton, where a

14   cooperating defendant feigned forgetfulness and reminisced with a

15   co-defendant about the charged conduct, 474 U.S. at 165-66,

16   Garcia never took any initiative that elicited information from

17   Jacques concerning the charged offense.      To be sure, Jacques

18   invited conversations with Garcia because of their friendship,
19   but these conversations were at Jacques’s initiative -- actually,

20   insistence -- not Garcia’s.   Indeed, Garcia was entirely passive

21   while Jacques was insisting on explaining to Garcia how to help

22   him.

23          Nor were the few questions that Garcia asked during his

24   conversations with Jacques of a probing nature with regard to the

25   kidnapping/rape/murder charges.    We have previously declined to


                                       15
 1   decide whether “limited follow-up questions could be found to

 2   ‘stimulate’ discussion,” United States v. Rommy, 506 F.3d 108,

 3   136 (2d Cir. 2007), and need not do so here.           Garcia’s infrequent

 4   questions did “not alter the fundamental nature of the exchange

 5   between the two men:      namely, [Jacques] enlist[ing] [Garcia’s]

 6   help.”    Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 896-

 7   97 (3d Cir. 1999).      From beginning to end, the conversations

 8   focused on Jacques’s using Garcia to influence J1’s statements

 9   and providing Garcia with the information that Jacques believed
10   was necessary to accomplish that goal.          Id. (finding no
11   deliberate elicitation when an incarcerated defendant asked a

12   friend to retrieve evidence and the telephone calls concerning

13   that request were recorded by the government with the friend’s

14   consent).5

15         To be sure, the FBI actively assisted Garcia in making calls

16   on the attorney line and in visiting Jacques in prison.             However,

17   those acts are not “the equivalent of direct police
18   interrogation.”     Kuhlmann, 477 U.S. at 459.        When prison
19   authorities place an informant in close proximity to a defendant,

20   even when expecting the defendant to divulge incriminating

21   information, id. at 456, the Sixth Amendment is not violated

22   unless the informant actively elicits statements that are

23   incriminating with regard to charged crimes.           Id. at 459.

           5
             Garcia’s inquiry concerning the charges against Jacques in the early
     1980’s clearly elicited information; however, that information concerned a
     crime other than those charged. See McNeil, 501 U.S. at 175 (the Sixth
     Amendment is offense specific).

                                          16
 1        Moreover, neither Garcia nor the FBI selected use of the

 2   attorney line or prison visits as the means of communication.

 3   Rather, it was Jacques who selected them.     Garcia and the FBI

 4   simply allowed Jacques to undertake his own chosen course of

 5   action.

 6        Finally, the fact that Garcia represented that he was

 7   willing to assist in the obstruction scheme did not violate

 8   Jacques’s rights with regard to the underlying charges.     Garcia’s

 9   assent did not seek to elicit a response, because merely

10   expressing agreement is not comparable to “engaging the defendant

11   ‘in active conversation.’”    Kuhlmann, 477 U.S. at 459 (quoting

12   Moulton, 474 U.S. at 177, n.13); see also Matteo, 171 F.3d at

13   895-97.

14        In sum, Jacques shared information on his own initiative and

15   on his own terms.   Therefore, the government did not take any

16   “action, beyond merely listening, that was designed deliberately

17   to elicit incriminating remarks.”      Kuhlmann, 477 U.S. at 459.

18                                CONCLUSION
19        For the foregoing reasons, we affirm the exclusion of the

20   allegations with regard to J2 and J3, vacate and remand with

21   regard to the allegations concerning J4, and vacate the order

22   suppressing evidence of the alleged plan to obstruct justice.




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