                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 28 2013

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30247

              Plaintiff - Appellant,             D.C. No. 3:10-cr-00124-JWS-
                                                 DMS-1
  v.

SIMON D. SMITH,                                  MEMORANDUM *

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                      Argued and Submitted August 28, 2012
                               Anchorage, Alaska

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Simon Smith (“Smith”) was in custody, under indictment for state drug and

firearms crimes, and represented by counsel, when state agents placed a confidential

informant (“CI”) and a recording device in his cell in an attempt to gather information

about a missing person. The placement of the recording device was done with FBI



       *
        This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
assistance and pursuant to an authorizing warrant, but also done despite a warning

delivered to the state police from his counsel that Smith was not to be questioned

without his counsel present.      Over 400 hours of conversation were recorded.

Subsequently, the State dropped its charges and turned the case over to the federal

authorities who proceeded to indict Smith on federal drug and firearms crimes arising

out of the same events that had led to the state charges.

      When the government announced its intention to use excerpts from the recorded

conversations at trial, Smith moved to suppress the recorded statements as violations

of his Sixth Amendment right to counsel. Following a lengthy hearing, a magistrate

judge recommended allowing admission of statements made outside the presence of

the CI, but suppression of those statements made in the CI’s presence, finding Sixth

Amendment violations.1 The district court, adopting the magistrate judge’s Report

and Recommendation (“R&R”) in full, ordered suppression. This timely government




      1
         It is well-settled law that once a defendant’s Sixth Amendment right to
counsel attaches, the government is forbidden from “deliberately eliciting”
incriminating statements about the crimes charged from the defendant. Massiah v.
United States, 377 U.S. 201, 206 (1964). These Sixth Amendment protections apply
to conversations between CIs and defendants where the CIs relay incriminating
statements from the defendant to the government, just as they do to formal
questioning. United States v. Henry, 447 U.S. 264, 274 (1980). The Ninth Circuit has
implemented Henry through a two-part test. See Randolph v. California, 380 F.3d
1133 (9th Cir. 2004).

                                           2
appeal followed. See 18 U.S.C. § 3731. We affirm in part, reverse in part, and vacate

and remand in part.

      I. Waiver

      Ordinarily we would begin by discerning whether the crimes for which Smith

is indicted by the federal government are the “same offense” as the crimes for which

he was indicted by the State of Alaska during the time he was housed with the CI

because Sixth Amendment protections are “offense specific . . . [and] cannot be

invoked once for all future prosecutions.” McNeil v. Wisconsin, 501 U.S. 171, 175

(1991). Sixth Amendment protections attach only to those offenses with which a

defendant is charged, not all other past and potential criminal conduct.

      The government argues the federal crimes for which Smith is currently indicted

are distinct from the state crimes for which he was indicted and represented at the time

of the recordings because: (1) the charges were brought by different sovereigns, and

(2) under Texas v. Cobb, 532 U.S. 162 (2001), which expanded Blockburger v. United

States, 284 U.S. 299 (1932), the crimes charged were different because each of the

state charges required at least one element that each of the federal charges did not, and

vice versa.

      The government, however, did not raise these arguments until its objection to

the magistrate judge’s initial R&R. A district court judge may, but is not required to,


                                           3
consider evidence and claims presented for the first time in a party’s objection to a

magistrate judge’s R&R. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002); United

States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000).

       Here, the district court noted that the government had raised new objections, but

agreed with Smith that these newly raised claims had been forfeited 2 and that the delay

in raising these claims produced prejudice. Thus the district court incorporated by

reference Smith’s rationale for why these new arguments had been waived.3 We deem

this a sufficient “actual exercise” of the district court’s discretion and similarly decline

to consider these arguments.




       2
         We note that Smith’s Response contained a more explicit forfeiture argument
as to one of the government’s new claims than as to the other. However, his general
explanation as to how the government’s delay prejudiced his case pertained to both
of the government’s new arguments, and constituted a sound reason for deeming both
arguments forfeited.
       3
            We also note, as the government conceded at oral argument, that there is no
excuse for the government’s delay in raising these arguments. They had been
available to the government throughout the entirety of the proceedings before the
magistrate judge. See Howell, 231 F.3d at 623. Moreover, here, as in Howell, the
party who failed to raise arguments in a timely fashion is not a party to whom we feel
especially compelled to grant the benefit of the doubt—someone who like a pro se
petitioner is bereft of legal guidance and litigation experience. Rather, it is the federal
government. As we have stated before: “As an officer of the court, the prosecutor has
a heavy responsibility both to the court and to the defendant to conduct a fair
trial . . . .” United States v. Escalante, 637 F.2d 1197, 1203 (9th Cir.1980).

                                             4
      Because we deem the government’s “separate offenses” arguments forfeited,

we proceed to review the suppression order under the more stringent plain error

standard. See Fed. R. Crim. P. 52(b); United States v. Karterman, 60 F.3d 576, 579

(9th Cir.1995); United States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009) (discussing

plain-error review).

      II. Suppression Order

       In Randolph v. California, 380 F.3d 1133, 1144 (9th Cir. 2004), we laid out the

test for determining whether an individual acting as a CI violates a defendant’s Sixth

Amendment right to counsel, putting into effect the “deliberate elicitation” language

from the Supreme Court’s Massiah and Henry decisions. This test requires a showing

that (1) the CI was acting as an agent of the State when he obtained the information

from him, and that (2) the CI made “some effort to ‘stimulate conversations about the

crime charged.’” See Randolph, 380 F.3d at 1144 (quoting Henry, 447 U.S. at 271 n.

9). As we explained in Randolph, “‘stimulation’ of conversation falls far short of

‘interrogation.’” Id. (quoting Fellers v. United States, 540 U.S. 519, 522–25 (2004)).

      Although the CI need not formally interrogate the defendant to violate his

rights, the Supreme Court in Kuhlmann v. Wilson, 477 U.S. 436, 456 (1986), held that

where an informant is placed in close proximity to the defendant, but makes no effort




                                          5
to stimulate conversations about the crime charged, there is no violation of the

defendant’s Sixth Amendment rights:

      [A] defendant does not make out a violation of [his Sixth Amendment] right
      simply by showing that an informant, either through prior arrangement or
      voluntarily, reported his incriminating statements to the police. Rather, the
      defendant must demonstrate that the police and their informant took some
      action, beyond merely listening, that was designed deliberately to elicit
      incriminating remarks.

Id. at 459. The Court concluded the defendant’s Sixth Amendment rights were not

violated because the informant had not “deliberately elicited” any conversation based

on the trial court’s findings that the statements made by the defendant were

“unsolicited” and “spontaneous” and that the informant had “at no time asked any

questions with respect to the crime.” Id. at 440, 459.

      The parties do not dispute that the CI was a government agent, so we look here

only at whether the magistrate judge and district court properly applied the “deliberate

elicitation” test. We review the district court’s ruling on the motion to suppress de

novo. See United States v. Decoud, 456 F.3d 996, 1007 (9th Cir. 2006).

      The government initially proposed to use all 400 hours of recordings at trial, but

after Smith’s motion to suppress, reduced its proposed offer to eighteen separate

excerpts of the recordings. The magistrate judge recommended that all statements

Smith made in the CI’s presence be suppressed—both those that the submitted



                                           6
transcript made clear were directly elicited by the CI, and those that the submitted

transcript made clear that only the CI was present. The magistrate judge characterized

the first category of these statements as “deliberately elicited” and the second category

of these statements as made in “an intentionally created situation that was likely to

induce the defendant to make incriminating statements.”

       With regard to the first category of statements, those conversations numbered

5, 6, 9, 10, 11, and 12 in the record, the correct “deliberate elicitation” test prescribed

by Randolph was properly applied. However, we conclude that as to conversations

6, 9, and 10, the CI did not “stimulate conversation about the crime[s] charged,” but

rather about other subjects. Randolph, 380 F.3d at 1144 (emphasis added); see also

Kuhlmann, 477 U.S. at 456. Although the CI did elicit statements from Smith in each

of these conversations, he did not elicit information about the pending state charges.

Instead, he elicited statements about the missing girl.            Thus, Smith’s Sixth

Amendment rights were not violated.          We therefore reverse the district court’s

suppression order as to conversations 6, 9, and 10.

       We vacate and remand the suppression order as to the second category of

statements, those conversations numbered 1, 2, 3, 4, 7, 8, 13, 14, and 18 in the record.

The magistrate judge concluded these were obtained through “an intentionally created

situation that was likely to induce the defendant to make incriminating statements.”


                                            7
While the circumstances under which a statement are made are relevant in determining

whether a statement has been “deliberately elicited,” the magistrate judge’s simplified

test does not incorporate the Randolph and Kuhlmann tests or account for the

requirement that the CI have elicited conversation about the charged crimes.4

      AFFIRMED in part, REVERSED in part, and VACATED and

REMANDED in part.




      4
           The record would have been more complete, and the magistrate judge’s
analysis easier, were more of the transcript of the discussions preceding the statements
the government sought to admit provided. Without sufficient transcript indicating the
context in which the statements were made, the “deliberate elicitation” test is more
difficult to implement and the risk of analytic inaccuracy is greater.

                                           8
