from the United States District Court for the Eastern
District of Louisiana
SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
BROWN CLEMENT, Circuit Judge
a murder-for-hire case. Nemesis "Nemo" Bates owned
Nemo's Carwash in New Orleans. In 2010, someone stole a
significant amount of jewelry and $20, 000 in cash from
Bates. Bates reported the theft to the police and told them
that he suspected his friend Christopher "Tiger"
Smith was the culprit. On November 21, 2010, someone shot
Tiger at least twenty times, killing him.
federal grand jury indicted Bates on four counts: (1)
solicitation to commit a crime of violence, in violation of
18 U.S.C. § 1958(a) and 18 U.S.C. § 373; (2)
conspiracy to use interstate commerce facilities in the
commission of murder-for-hire, in violation of 18 U.S.C.
§ 1958(a) and 18 U.S.C. § 2; (3) causing death
through the use of a firearm, in violation of 18 U.S.C.
§ 924(j)(1) and 18 U.S.C. § 2; and (4) conspiracy
to possess firearms, in violation of 18 U.S.C. § 924(o).
At trial, both sides agreed that Walter Porter was the actual
shooter. The government advanced the theory that Bates hired
Porter, along with Aaron Smith, to murder Tiger in exchange
for $20, 000, as retaliation for Tiger's stealing his
jewelry and money. The government presented twenty-one
witnesses, including Anthony Comadore, Bates's former
cellmate, who testified concerning Bates's alleged
jailhouse confession. By contrast, Bates argued that Smith
and Porter acted on their own accord as part of a conspiracy
to extort money from Bates after the fact. The jury convicted
Bates on all counts.
to Federal Rule of Criminal Procedure 29, Bates moved for a
judgment of acquittal on all counts. The district court
denied his motion. Bates timely appealed, arguing that the
district court (1) abused its discretion by allowing Comadore
to testify and (2) erred by denying his motion for acquittal.
For the reasons stated below, we AFFIRM the district
argues that the district court erred by allowing Comadore to
testify at trial in violation of his Sixth Amendment right to
counsel. The admissibility of witness testimony at
trial is reviewed for abuse of discretion. United States
v. Heard, 709 F.3d 413, 422 (5th Cir. 2013). The Supreme
Court has held that the Sixth Amendment right to counsel is
violated when the government "use[s] against [a criminal
defendant] at his trial evidence of his own incriminating
words, which federal agents . . . deliberately elicited from
him after he had been indicted and in the absence of his
counsel." Massiah, 377 U.S. at 206. To allege a
Massiah violation, a criminal defendant must
establish that: (1) a Sixth Amendment right to counsel had
attached; (2) an individual seeking the information was a
government agent acting without the defendant's counsel
being present; and (3) that the agent deliberately elicited
incriminating statements from the defendant. Henderson v.
Quarterman, 460 F.3d 654, 664 (5th Cir. 2006). Under the
Fifth Circuit's two-prong test for determining whether an
agency relationship exists between the government and a
jailhouse informant, the defendant bears the burden of
showing that "the informant: (1) was promised,
reasonably led to believe, or actually received a benefit in
exchange for soliciting information from the defendant; and
(2) acted pursuant to instructions from the State, or
otherwise submitted to the State's control."
Creel v. Johnson, 162 F.3d 385, 393 (5th Cir. 1998).
argues that "Comadore sought information from Mr. Bates
in the hopes of receiving a benefit." But
soliciting information "in the hopes of" receiving
a benefit is not the same as soliciting information because
you were "promised, reasonably led to believe, or
actually received a benefit." Id. Because Bates
has failed to point to any evidence showing that the
government affirmatively enticed Comadore to solicit any
information from Bates, we cannot say the district court
abused its discretion in allowing Comadore to testify.
also argues that we should reverse the district court's
denial of his motion for judgment of acquittal. We disagree.
We review de novo a district court's denial of a
post-trial motion for a judgment of acquittal. United
States v. Rojas Alvarez, 451 F.3d 320, 326 (5th Cir.
first argues that this panel should overturn his conviction
on all four counts because the evidence presented by the
government was all "contradicted by either testimony or
evidence presented by the defense at trial." But the
mere presence of some conflicting evidence in the record does
not render a jury verdict improper. "It is not necessary
that the evidence exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion
except that of guilt." United States v. Lage,
183 F.3d 374, 382 (5th Cir. 1999). In fact, "any
conflict in the evidence must be resolved in favor of the
jury's verdict." United States v. Lundy,
676 F.3d 444, 448 (5th Cir. 2012) (citing United States
v. Duncan, 919 F.2d 981, 990 (5th Cir. 1990)).
also attacks the credibility of the government's
witnesses. In addition to his argument about the
admissibility of Comadore's testimony, he argues that
"[Smith's] credibility as a witness should be
questioned" because of his prior convictions,
significant drug problems, and admission that he would be
willing to lie under oath. Likewise, he claims that the
testimonies of his two ex-lovers should not be trusted
because they both had reasons to lie. But these arguments are
irrelevant. On appeal the panel is not permitted to assess
the credibility of the witnesses-credibility determinations
are the purview of the trier-of-fact. United States v.
Owens, 683 F.3d 93, 101 (5th Cir. 2012). The