Summary
This Fifth Circuit opinion reviews the district court's denial of Ronald Donell Brown's motion to suppress evidence based on alleged violations of attorney-client privilege and the Sixth Amendment right to counsel, alongside the government's Rule 48(a) motion to dismiss certain firearm-related counts. The appellate court affirmed the suppression denial, concluding that the confidential informant's presence destroyed any expectation of confidentiality and that the Sixth Amendment right to counsel had not yet attached when the recordings occurred. The court vacated the dismissal of Counts Three and Four and remanded for the district court to exercise discretion on which convictions to dismiss to avoid double jeopardy before resentencing.
Topics
Practice areas
Questions Presented
- Whether communications made in the presence of the confidential informant were protected by the attorney-client privilege or the common-legal-interest privilege.
- Whether the Government's pre-indictment conduct violated Brown's Sixth Amendment right to counsel.
- Whether Federal Rule of Criminal Procedure 48(a) required Brown's consent before the district court could grant the Government's motion to dismiss Counts Three and Four after trial.
- Whether the district court abused its discretion by dismissing Counts Three and Four without independently determining which of the multiplicitous greater- and lesser-included convictions should be vacated.
Holdings
- The communications at the August 4 meeting were not protected by the attorney-client privilege because the confidential informant was a third party who lacked a common legal interest with Brown and his attorneys. The district court therefore did not clearly err in denying suppression on that ground.
- The Government's recording or obtaining of the 2013 conversations did not violate Brown's Sixth Amendment right to counsel because the conversations occurred before formal criminal proceedings commenced and before the right to counsel attached.
- Rule 48(a) did not require Brown's consent to the Government's motion to dismiss Counts Three and Four because the motion was made after trial had concluded.
- The district court abused its discretion by allowing the Government to determine which convictions to dismiss without independently exercising its discretion. The court had to determine whether to dismiss Counts One and Two or Counts Three and Four and then resentence Brown.
Key quotations
“An accused’s right to counsel is, however, “limited by its terms.”” (at 14)
“The Government’s position concerning whether to end the prosecution of certain crimes is given deference because it has the prerogative to decide how to prosecute offenses and when to dismiss charges.” (at 22)
“The Supreme Court has recognized that where, as here, the presumption against cumulative punishment requires the invalidation of a conviction, the district court must “exercise its discretion to vacate one of the underlying convictions.”” (at 24)
“We therefore express no opinion on which counts the district court “should” dismiss.” (at 27)
Factual background
Brown led a drug-trafficking organization that transported large quantities of cocaine and marijuana between Houston and Atlanta. After approximately $718,407 was seized from one of his drivers, Brown discussed with attorneys and a confidential informant a plan for the informant to file a fraudulent petition to recover the money. The informant later reported the meeting to federal agents and recorded a subsequent meeting. Brown was later charged and convicted on offenses involving murder-for-hire, drug-trafficking murder, and firearm use causing death.
Procedural history
A federal grand jury returned a superseding indictment charging Brown with, among other offenses, conspiracy to commit murder for hire, intentional killing while engaged in drug trafficking, and firearm offenses under 18 U.S.C. § 924(j). The district court denied Brown's suppression motion, Brown was convicted on seven counts, and the court later granted the Government's Rule 48(a) motion to dismiss Counts Three and Four before sentencing. The district court imposed life sentences on Counts One, Two, Five, and Seven and a consecutive 120-month sentence on Count Six. The Fifth Circuit affirmed the suppression ruling, vacated the Rule 48(a) ruling and the sentences on Counts One and Two, and remanded for the district court to exercise its discretion regarding which convictions to dismiss and to resentence Brown.
Remand instructions
The district court must exercise its discretion to determine whether Counts One and Two or Counts Three and Four should be dismissed or vacated, and then resentence Brown accordingly. The appellate court expressed no opinion on which pair should be dismissed.