Petition for Writ of Certiorari — Andre Chandler, aka Mac Dre, Petitioner v. United States

Supreme Court briefMar 24, 2023

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No.

____________________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________

ANDRE CHANDLER,

PETITIONER

UNITED STATES,

RESPONDENT

____________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals,

Second Circuit

_____________________________

APPENDIX

_____________________________

Jamesa J. Drake

Drake Law LLC

P.O. Box 56

Auburn, ME 04212

(207) 330-5105

jdrake@drakelawllc.com

Counsel of Record

Appendix

United States v. Chandler, 56 F.4th 27 (2d Cir. 2022)……………………1

United States v. Chandler, 56 F.4th 27 (2022)

56 F.4th 27

United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee,

Andre CHANDLER, AKA

Mac Dre, Defendant-Appellant.

Docket No. 18-1841

August Term, 2021

Argued: December 7, 2021

Decided: December 27, 2022

Synopsis

Background: Defendant was convicted in the United States

District Court for the Eastern District of New York, Azrack,

J., of offenses including discharge of a firearm during

a drug trafficking crime and possession of cocaine base,

heroin, oxycodone, and hydrocodone with intent to distribute.

Defendant appealed.

Holdings: The Court of Appeals, Carney, Circuit Judge, held

that:

defendant's pretrial cellmate did not act as government

agent when he spoke with defendant about defendant's

expected trial strategy, and thus Government's use of

cellmate's testimony about defendant's statements during such

conversation did not violate defendant's Sixth Amendment

right to counsel;

probation officer had reasonable suspicion for search of

defendant's residence and rental vehicle; and

probation department did not impermissibly act as “stalking

horse” for city police department in conduct such search.

Affirmed.

Attorneys and Law Firms

*29 David K. Kessler, (Kevin Trowel, on the brief), for

Mark J. Lesko, Acting United States Attorney for the Eastern

District of New York, Brooklyn, NY, for Appellee.

Jamesa J. Drake, Drake Law, LLC, Auburn, ME, for

Defendant-Appellant.

Before: Lynch, Carney, and Sullivan, Circuit Judges.

Opinion

Carney, Circuit Judge:

In this appeal, we address questions concerning the scope of

a defendant's Sixth Amendment right to effective assistance

of counsel when the government presents a witness to whom

the defendant has volunteered his thoughts about defense

strategy and who, after learning the defendant's thoughts,

agrees to testify for the government. We also consider a

Fourth Amendment claim raised in the context of a search

conducted of the home and car of an individual serving a term

of supervised release. On review, we find no error, and we

affirm the judgment of conviction.

In October 2016, following an eight-day trial, a jury found

Defendant-Appellant Andre Chandler guilty of seven counts

related to dealing in cocaine and heroin and related firearm

usage in 2014 and early 2015: conspiracy to distribute cocaine

base and heroin, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)

(C), 846 (Count 1); discharge of a firearm during a drug

trafficking crime, see 18 U.S.C. § 924(c)(1)(A)(iii) (Count

2); three counts of unlawful possession of firearms, see

18 U.S.C. §§ 922(g)(1), 924(a)(2) *30 (Counts 3 through

5); and possession of cocaine base, heroin, oxycodone, and

hydrocodone with intent to distribute, see 21 U.S.C. §§ 841(a)

(1), 841(b)(1)(C) (Counts 6 and 7). Chandler was found to

have committed these crimes while on a three-year period of

supervised release begun in 2014. This period of supervised

release was imposed as part of the sentence Chandler received

in 2012 for violating the terms of a previous period of

supervision. He is currently serving a 354-month term of

imprisonment imposed in 2018 by the United States District

Court for the Eastern District of New York (Azrack, J.) upon

his conviction of the seven counts.

Procedural Posture(s): Appellate Review; Pre-Trial Hearing

Motion.

United States v. Chandler, 56 F.4th 27 (2022)

Chandler now appeals from the district court's 2018 judgment.

In his counseled brief, Chandler asserts primarily that vacatur

of his conviction is required because of two alleged errors

by the district court. First, relying on Weatherford v. Bursey,

429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), Chandler

argues for the first time on appeal that the government

violated the Sixth Amendment when it elicited testimony

about his trial strategy from his temporary cellmate, Shedret

Whithead, who became a cooperating witness after their

period of cell-sharing ended. Second, Chandler contends

that the district court erred by failing to suppress evidence

discovered during a search of his residence and rental car

conducted while Chandler was on supervised release. He

challenges as inadequate the grounds cited by the officers

for undertaking the search. See United States v. Chandler,

2016 WL 4076875 (E.D.N.Y. Aug. 1, 2016) (Azrack, J.),

adopting and aff'g 2016 WL 11481202 (E.D.N.Y. June 16,

2016) (Locke, Mag. J.) (R&R). We reject both arguments.

As to Chandler's Sixth Amendment claim, we conclude

that the district court did not err, never mind plainly

err, by admitting the cellmate's testimony. Nothing in the

record suggests that, through Whithead, the government

intentionally invaded Chandler's relationship with his

attorney or learned privileged information: Whithead was not

a government agent when Chandler disclosed his thoughts

about a defense to Whithead; and Chandler has not shown that

the plans revealed by Chandler to Whithead were privileged

or, to the extent that any privilege did apply, that it was not

waived.

We further conclude that the district court properly denied

Chandler's motion to suppress. The probation officer in

charge of monitoring Chandler's supervised release had

reasonable suspicion to search Chandler's residence and rental

car based on credible and specific reports that Chandler,

a felon and on supervised release, unlawfully possessed a

firearm and was again engaged in drug trafficking. Chandler's

reliance on cases concerning probable cause to conduct a

warrantless search of a residence are inapposite.

We therefore AFFIRM the district court's judgment of

conviction.

BACKGROUND 1

I. Events leading to the search and Chandler's arrest

In July 2014, Chandler was released from federal custody

following a 24-month term of imprisonment imposed on him

for his violation of the conditions of a term of supervised

release. 2 Chandler then began a *31 new, three-year term

of supervised release. Senior United States Probation Officer

Dennis Stickley was assigned to supervise Chandler.

Under the terms of Chandler's supervised release, he was

required to “submit his person, residence, vehicle or place

of business to a search if the Probation Department has

reasonable belief [that] contraband is present.” Amended

Judgment, United States v. Chandler, 2:02-cr-938, Dkt.

No. 31 (reinstating Conditions of Supervised Release first

imposed on May 16, 2003, see id. Dkt. No. 17). He also was

obligated to “permit a probation officer to visit him [ ] at any

time at home or elsewhere” and to “permit confiscation of any

contraband observed in plain view of the probation officer.”

Id. at 3. Among other standard conditions of supervision,

Chandler was also bound “not [to] commit another federal,

state, or local crime,” and not “unlawfully [to] possess a

controlled substance” or to “possess a firearm.” Id.

At the start of his period of supervised release, Chandler

initially lived with his wife, Tashikha Chandler (“Mrs.

Chandler”). 3 Sometime in November 2014, he notified

Officer Stickley that his residence had changed to a house

on Anderson Road in Springfield Gardens, Queens, where he

lived with his girlfriend. Later in November, Mrs. Chandler

told Officer Stickley that Chandler had begun to threaten

her. Mrs. Chandler alleged (among other things) that in late

November, Chandler had said he would “come to her house

and ‘air this place out[,]’ ” a phrase that she took as a physical

threat. App'x at 179. On the basis of those reported threats,

she obtained a state order of protection. On January 5, 2015,

Officer Stickley learned that Chandler had been arrested for

violating that order of protection.

Related to these developments, Mrs. Chandler described to

Officer Stickley an incident that had occurred at her uncle's

house on January 1. She said that when Chandler arrived

there, he began to argue with her, and—as Stickley later

recalled Mrs. Chandler saying—“maneuver[ed] ... an area

United States v. Chandler, 56 F.4th 27 (2022)

along his hip to make it seem like he was in possession

of a firearm.” App'x at 182. Mrs. Chandler also reported

to Officer Stickley her understanding that, on January 4,

Chandler had brandished a firearm during a conversation with

her uncle. Finally, she gave Officer Stickley a phone number

that she said Chandler was using to sell drugs and informed

him that Chandler, who had been driving a rental car, had in

the past habitually kept a gun in the center console between

the car's front seats.

Based on these reports, Officer Stickley prepared a written

operations plan to search the Anderson Road residence

and Chandler's vehicle under the authority of the terms of

Chandler's supervised release. In the plan, he recorded his

conclusion *32 that reasonable suspicion supported the

search because of (1) Chandler's history of violence and

weapons possession; (2) Chandler's arrest for violating an

order of protection; and (3) the fact that a confidential

source had advised Officer Stickley that Chandler possessed

a firearm. The search was scheduled for January 13, 2015.

On January 12, Mrs. Chandler sent Officer Stickley a text

message reporting that, two days earlier on January 10,

Chandler had “pistol-whipped” a member of a rival gang

at a Long Island nightclub. She also informed Officer

Stickley that someone had fired a gun at the club that night.

Officer Stickley promptly followed up with a Nassau County

detective at the police precinct where the club was located.

The detective confirmed that an altercation between two gang

members had occurred at the club on the night Mrs. Chandler

identified and that an individual had discharged a firearm

during the altercation.

On January 13, Officer Stickley—joined by other federal

probation officers and officers of the New York City Police

Department (“NYPD”)—conducted the planned search of

the Anderson Road residence. Inside the home, the officers

found (1) a loaded 9 mm Smith & Wesson handgun, found

under a mattress in a child's bedroom; (2) a loaded 9 mm

handgun, found in a safe inside Chandler's bedroom; (3) a

bag containing 80 glassine bags of heroin, also found in

Chandler's bedroom; (4) a bag containing cocaine, found in a

bedroom; and (5) a set of car keys and safe keys, found in a

nightstand in Chandler's bedroom next to the side of the bed

where (as they later learned) Chandler slept.

Attached to the car keys was a plastic sleeve that displayed

the make, model, color, and license plate number of a rental

car. NYPD officers located that car parked a block away from

the house. Searching the car, the officers found a firearm in

the center console, and elsewhere in the car, they located a

brown bag filled with pills and a powdery substance, a scale,

and a cell phone.

Not long after, members of the NYPD arrested Chandler.

II. The December 2014 shooting

On December 13, 2014, a month before the search of the

Anderson Road residence, Detective Thomas Dluginski of the

Nassau County Police Department responded to a reported

shooting of an individual at a location in Hempstead, New

York, at about 3:30 a.m. Detective Dluginski later testified

during a hearing on Chandler's motion to suppress that the

shooting victim was no longer present when he arrived at

the scene, but that Dluginski was able to interview him

at a nearby hospital. The victim, Hashim Handfield, did

not identify the perpetrator to Dluginski. A few days later,

however, another detective informed Detective Dluginski that

a confidential source had identified Chandler as the shooter.

On December 29, Detective Dluginski prepared a six-person

photo array, which included a picture of Chandler, “in the

hopes of identifying [a] suspect.” App'x at 75.

At the motion to suppress hearing, Detective Dluginski

testified that two witnesses identified Chandler as the

perpetrator. The first identification occurred on January 30,

2015, when Dluginski overheard an arrestee at the Hempstead

Armory report that he knew who committed the December

2014 shooting. The witness told Dluginski that he was present

at the shooting, and he orally identified the shooter as “Mac

Dre,” whom he knew as a drug dealer. Id. at 77. Dluginski

then showed the witness the December 29 photo array, and the

witness identified Chandler as the shooter. Dluginski testified

that *33 “Mac Dre” was Chandler's “nickname.” Id. at 70.

The second identification occurred on February 19, 2015.

Detective Dluginski testified that a detective from the Nassau

County Homicide Squad informed him of a second witness,

who had also named Chandler as the perpetrator of the

December 2014 shooting. Detective Dluginski prepared a

second photo array, placing Chandler's photo in a different

location from the one it had occupied in the previous array.

United States v. Chandler, 56 F.4th 27 (2022)

When interviewed and presented with the array, the witness

—who said that he knew Chandler from selling drugs with

him in the past—identified Chandler as the shooter.

III. The superseding indictment and pre-trial motions

On June 16, 2015, the government filed a superseding

indictment that charged Chandler with seven counts. In

Count One, the government alleged that between July 2014

and January 2015, Chandler had conspired with others

to distribute cocaine base and heroin. In Count Two, the

government charged Chandler with discharging a firearm in

relation to a drug trafficking crime for allegedly shooting

a rival drug dealer on December 13, 2014. Counts Three

through Five charged Chandler with unlawfully possessing a

firearm (one count for each gun recovered from Chandler's

residence and the rental car during the January 13 search).

Counts Six and Seven charged Chandler with possessing

with intent to distribute the cocaine base, heroin, oxycodone,

and hydrocodone that officers located during the January 13

search. After his indictment, Chandler moved unsuccessfully

to suppress the evidence found during the searches of his

house and rental car, with the district court concluding that

reasonable suspicion supported the searches. 5

The district court also conducted a hearing “to determine,

under Massiah v. United States, 377 U.S. 201, 84 S.Ct.

1199, 12 L.Ed.2d 246 (1964), and its progeny, whether

and under what circumstances introduction of testimony

regarding conversations between a cooperating jailhouse

witness (the ‘Cooperating Witness’) and defendant would

be appropriate.” App'x at 365; see Massiah, 377 U.S. at

207, 84 S.Ct. 1199 (holding that the government is not

constitutionally permitted to interrogate, even through an

informant, a person under indictment who has counsel).

Based on testimony presented at that hearing, the district court

found that Chandler and the Cooperating Witness, Whithead,

“shared a cell in MDC [the Metropolitan Detention Center]

between January 14, 2016 and January 26, 2016,” and that

in February 2016, after their approximately two-week period

of cohabitation ended, Whithead's counsel first emailed the

prosecution to suggest a meeting. App'x at 366. Members

of the prosecution team first met with Whithead in April

2016, and on that occasion, he “provided information to the

Government regarding defendant and his current charges.” Id.

*34 The court found that all six government witnesses

(prosecutors and detectives) “testified credibly.” Id. at 368.

On the basis of the evidence before it, the court concluded

that “[t]he Cooperating Witness was not acting as an agent of

the government because he obtained the information before

becoming an informant.” Id. Therefore, it ruled that “the

statements made by defendant to the Cooperating Witness

were not obtained in violation of the Sixth Amendment.” Id.

IV. The trial

Trial began in late September 2016.

To prove the 2014–2015 drug conspiracy that was charged in

Count One, the government called three of Chandler's former

customers. Pamela Heath testified that between the summer

of 2014 and January 2015, Chandler sold her heroin multiple

times each week and discussed his drug dealing activities with

her. Ramel Floyd testified that between July 2014 and October

2014, he purchased crack cocaine and heroin approximately

twice a day from Chandler in quantities sufficient to resell

those drugs to other customers. Tiffany Peal testified that

Chandler offered to sell her crack cocaine and heroin in 2014.

Regarding the firearm offense charged in Count Two, the

government called Handfield, the shooting victim, who

testified that he was selling drugs in Hempstead, New York

on December 13, 2014, when he witnessed a Mustang car

approach him at around 3:30 a.m. Handfield observed a

woman in the passenger seat and a man in the driver's seat.

When Handfield asked the driver if “he needed anything,” the

driver said nothing and shot Handfield in the abdomen. After

Handfield fell to the ground, the driver fired a second shot,

which hit him in the leg. Handfield ran behind a shed “[f]or

fear of [his] life” and immediately called law enforcement.

App'x at 732–33. The government also called Peal, who

testified that on December 13, 2014, at around 3:30 a.m., she

was standing nearby and witnessed Chandler shoot a drug

dealer multiple times on Linden Avenue in Hempstead, New

York. Id. at 761–63, 766.

With respect to Counts Three through Seven, which

concerned Chandler's unlawful possession of guns and

possession of various narcotics with intent to distribute,

the government introduced physical evidence. This included

physical evidence retrieved from the searches of Chandler's

house and car, as well as photographs of the pills, drug

United States v. Chandler, 56 F.4th 27 (2022)

paraphernalia, and firearms recovered from the searches.

Officer Stickley testified about the search and the events

described earlier. In addition, expert ballistics testimony tied

a bullet from the December 13 shooting scene and a bullet

recovered from Handfield's body to the Smith & Wesson

found under the child's mattress in Chandler's residence.

Finally, cell tower data placed Chandler's phone in the vicinity

of his residence at 2:30 a.m. on the day of the shooting, in

the vicinity of the location of the shooting in Hempstead

by 3:30 a.m., and then back in the vicinity of the residence

by 4:00 a.m. That evidence was consistent with the theory

that Chandler drove from his residence to the scene of the

shooting and back on the night when Handfield was shot.

The government also introduced the testimony of non-lawenforcement witnesses regarding their dealings with Chandler

in various drug transactions and his use of guns.

On the sixth day of trial, the government adduced the

testimony of Shedret Whithead. Whithead testified that

Chandler had asked to be bunked with Whithead, and

Whithead had agreed, because they had known each other

since they were children. Whithead testified further that, *35

while he and Chandler were cellmates, Chandler admitted

to him that he possessed firearms and that he had shot

an individual in Hempstead, New York, who had been

selling drugs in Chandler's territory. Chandler also revealed

to Whithead his planned litigation strategy to challenge the

admissibility of, and cast doubt upon, specific elements of the

government's evidence. Specifically, Whithead testified that

Chandler told him that he planned to achieve this by arguing

that the searches of his house and rental car were botched,

that the DNA found on the gun seized from the rental car was

the result of innocently transporting it from one location to

another, and that his alibi for the night of the shooting was

that he was at a party with his girlfriend.

After deliberation, the jury rendered a verdict of guilty on all

counts.

The district court sentenced Chandler principally to 204

months’ imprisonment for discharging a firearm during a

drug trafficking crime. It also imposed sentences of 150 and

120 months’ imprisonment for the other drug- and firearmsrelated counts of conviction, respectively, to run concurrently

with each other and consecutive to the 204 months’ sentence

that Chandler received for Count Two. The final sentence of

incarceration amounted to a total of 354 months.

Chandler then timely brought this appeal.

DISCUSSION

Chandler now challenges his conviction primarily on two

grounds. First, he submits that the government violated his

Sixth Amendment rights by eliciting trial testimony from

Whithead about his defense strategy. Second, he contends

that law enforcement officers unlawfully searched his home

and rental car, and that the district court accordingly erred

by failing to suppress the evidence collected in the course of

those searches.

I. Sixth Amendment claim

Chandler contends that the admission of portions of

Whithead's testimony violated his Sixth Amendment right to

effective assistance of counsel by disclosing details regarding

his trial strategy to the jury. Citing remarks by the Supreme

Court in Weatherford, he submits that the violation occurred

when the prosecutor “purposefully asked [Whithead]—in

front of the jurors—how [Chandler] planned to defend against

evidence that he possessed guns; evidence that his DNA was

found on guns; and GPS location evidence,” and Whithead

was permitted to answer. Appellant's Br. at 11. Chandler

further claims to have been prejudiced by this testimony, even

viewed in light of the record as a whole.

Because Chandler did not raise his Sixth Amendment

challenge to Whithead's testimony in the district court, 6 we

review his argument for plain error. Under that standard,

[we may] correct an error not raised

at trial only where the appellant

demonstrates that (1) there is an

error; (2) the error is clear or

obvious, rather than *36 subject

to reasonable dispute; (3) the error

affected the appellant's substantial

rights, which in the ordinary case

means it affected the outcome of

the district court proceedings; and

(4) the error seriously affect[s] the

United States v. Chandler, 56 F.4th 27 (2022)

fairness, integrity or public reputation

of judicial proceedings.

United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159,

176 L.Ed.2d 1012 (2010) (internal quotation marks omitted);

see also Fed. R. Crim. P. 52(b) (“A plain error that affects

substantial rights may be considered even though it was

not brought to the court's attention.”). An error “affects the

defendant's substantial rights when it is prejudicial—that is,

when there is a ‘reasonable probability’ that the error affected

the outcome of the proceeding.” United States v. Dussard,

967 F.3d 149, 156 (2d Cir. 2020) (quoting United States v.

Dominguez Benitez, 542 U.S. 74, 81–82, 124 S.Ct. 2333,

159 L.Ed.2d 157 (2004)). The appellant bears the burden of

establishing all four criteria. Id.

A. Weatherford and its progeny: the relevant Sixth

Amendment framework

Chandler derives his Sixth Amendment claim from the

Supreme Court's 1977 decision in Weatherford. There, the

plaintiff, Bursey, was convicted of malicious destruction of

property. See Bursey v. Weatherford, 528 F.2d 483, 485 (4th

Cir. 1975), rev'd, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d

30 (1977). Weatherford, a state law enforcement agent who

had participated in the vandalism while working undercover,

was arrested and charged as Bursey's co-defendant. As a

co-defendant, Bursey invited Weatherford to attend several

meetings between Bursey and his attorney as they prepared

for the approaching criminal trial. Weatherford did so without

revealing his status as a government agent. Weatherford, 429

U.S. at 547–48, 97 S.Ct. 837.

After serving his sentence, Bursey sued Weatherford for

damages under 42 U.S.C. § 1983, alleging that Weatherford

had communicated to the state prosecutors the defense

strategies and plans discussed at those meetings, and that—

through those communications—Weatherford had deprived

Bursey of his Sixth and Fourteenth Amendment rights to

effective assistance of counsel. Id. at 549, 97 S.Ct. 837.

The Supreme Court found no Sixth Amendment violation.

The record, it said, did not show that Weatherford had

disclosed to the government “trial plans, strategy, or anything

having to do with the criminal action pending against

plaintiff.” Id. at 548, 555–57, 97 S.Ct. 837. Rather, the

record reflected that Weatherford's mere presence at the

meetings (indeed, upon Bursey's invitation) did not constitute

interference with the attorney-client relationship. Id. The

Court emphasized that Weatherford did not attend the

attorney-client meetings with the intention of gathering

information for the prosecution and that Weatherford did

not in fact pass along any privileged information to the

prosecutors; the record showed only that Weatherford had

joined those meetings to avoid jeopardizing his cover. Id. at

557, 97 S.Ct. 837.

In its ruling, the Court contrasted the situation then at bar with

a hypothetical case in which it was shown that the government

deliberately interfered with the relationship between a

defendant and his counsel. Id. at 554–57, 97 S.Ct. 837. For

instance, if in using an informant the government's “purpose

was to learn what it could about the defendant's defense

plans and the informant was instructed to intrude on the

lawyer-client relationship or [if] the informant has assumed

for himself that task,” and the informant communicated that

information to the prosecution, then the defendant would have

a “stronger” *37 argument for a Sixth Amendment violation.

Id. at 554, 557, 97 S.Ct. 837.

In the 45 years since Weatherford was decided, this Circuit

has never found a Weatherford violation. Shortly after

Weatherford, we ruled in Klein v. Smith that the government

did not unconstitutionally intrude on a defendant's attorneyclient relationship when a co-defendant retained the same

law firm representing the primary defendant in a murder case

and attended defense meetings with jointly retained counsel

after having become a cooperator. See 559 F.2d 189, 198

(2d Cir. 1977). We ruled that no constitutional violation had

occurred because the cooperator in Klein “did not convey

[to the prosecution] any information concerning petitioner's

defense strategy,” and he did not obtain “information from

[the petitioner's attorneys] which he could convey” to the

government. Id. We observed that under Weatherford, “at

least where the intrusion by an ‘agent’ of the prosecution

is unintentional or justifiable,” a viable Sixth Amendment

claim requires “some communication of valuable information

derived from the [cooperator's] intrusion to the prosecutor or

his staff in order that there can appear [to be] some realistic

possibility of prejudice to the defendant.” Id. at 197.

Similarly, in United States v. Dien, we rejected a Sixth

Amendment challenge centered on Dien's allegation that

United States v. Chandler, 56 F.4th 27 (2022)

his wife, later revealed to have become a government

informant, had attended Dien's trial strategy meetings while

a government informant. See 609 F.2d 1038, 1043 (2d

Cir. 1979), adhered to on reh'g, 615 F.2d 10 (2d Cir.

1980). As in Klein, we explained that to prove a Sixth

Amendment violation where an informant attended defense

strategy sessions, a defendant must “establish that privileged

information had been passed to the government or that

the government had intentionally invaded the attorney

client relationship, and resulting prejudice.” Id. Applying

that standard, we rejected Dien's Sixth Amendment claim,

reasoning that “the conversations alleged to have been passed

on to the government were not confidential, [and] there

was no evidence that they were in fact passed on to the

government.” Id.

In like vein, we rejected out-of-hand the asserted need for a

hearing on a claimed Sixth Amendment violation in United

States v. Ginsberg. See 758 F.2d 823, 833 (2d Cir. 1985).

There, the defendant argued that his Sixth Amendment rights

were violated when the government allowed the cooperating

witness to “mingle” with Ginsberg and his co-defendants

before trial, allowing her to have lunch with them, sit at

the defense table during pretrial conferences, and listen to

the pretrial arguments. Defense counsel requested that the

district court “hold some sort of hearing ... as to why the

Government allowed [the individual], after she became a

cooperating witness,” to do so. Id. at 832. We affirmed the

district court's determination that no hearing was required.

In light of Weatherford, we reaffirmed that “[w]here the

presence of the government's agent or informant at [a]

defense conference is either unintentional or justified by

the necessity of protecting the informant's identity, there

can be no violation of the sixth amendment without some

communication of valuable information derived from the

intrusion to the government: absent such communication,

there exists no realistic possibility of either prejudice to the

defense or benefit to the government.” Id. at 833 (citations

omitted).

We now proceed to apply these principles on plain error

review.

*38 B. Chandler has not established a Sixth

Amendment violation

Chandler falls short of establishing a Sixth Amendment

violation on this record. The district court did not err by

allowing Whithead's testimony.

Since Whithead was not a government informant when

Chandler spoke to him about Chandler's expected trial

strategy, the government did not intrude on the attorney-client

relationship. That is fatal to his Sixth Amendment claim. As

recounted above, the district court conducted a hearing before

trial to determine whether Whithead acted as a government

agent when he was Chandler's cellmate in January 2016, see

Massiah, 377 U.S. at 203-07, 84 S.Ct. 1199, and concluded

that he did not. Central to that determination was the district

court's observation that “[t]here is no evidence that any

member of the prosecution team had heard of, met with, or

spoken to [Whithead] prior to February 2016.” App'x at 368.

Chandler does not challenge that conclusion on appeal. Thus,

Chandler does not claim, and the record does not show, that

the government planted Whithead in Chandler's cell as a spy,

or otherwise used him to elicit any information from Chandler

or to intrude on Chandler's relationship with counsel. The

record reflects that Whithead was bunked with Chandler

not at the government's direction, but at Chandler's request,

because Chandler and Whithead had a prior relationship.

Chandler freely shared his thoughts about his defense when

Whithead had no cooperator-type or other relationship with

the government (indeed, Whithead had not by that point even

contacted, or been contacted by, the government). Only after

Whithead and Chandler were no longer cellmates did that

relationship develop—and it did so at Whithead's request.

Chandler does not dispute the government's portrayal that he

shared his defense plan with Whithead of his own volition,

and demonstrably before Whithead became a cooperator.

By contrast, what made the Sixth Amendment claims in

Klein, Dien, and Ginsberg even colorable was that in each

of those cases, the government informant or cooperating

witness allegedly obtained privileged information, or invaded

the defendant's attorney-client relationship, after he or she

had an already established relationship with the government,

thus possibly reflecting a government intention to intrude.

For instance, in Ginsberg, the defendant alleged that the

government's witness sat “at the defense table during

pre-trial court conferences ... all the while acting as a

‘spy in the defense camp.’ ” Ginsberg, 758 F.2d at 832;

see also Klein, 559 F.2d at 198 (addressing, on habeas

review, the allegation that a cooperating witness intruded

United States v. Chandler, 56 F.4th 27 (2022)

on the petitioner's attorney-client relationship because, after

becoming an informant, he continued to be represented by

the same law firm as the petitioner for six months). No such

circumstance is present here.

Moreover, Chandler does not identify any basis in the

record for finding that Whithead ever interacted with

Chandler's counsel, overheard any discussions between

Chandler and his attorney, or otherwise intruded on the

attorney-client relationship. Instead, Chandler asserts only

that Whithead eventually relayed to the government what

Chandler voluntarily disclosed to him. Indeed, as far as

the record reveals, what Chandler told Whithead about his

defense was far more likely to be Chandler's own thoughts

than advice received from counsel, because it would have

been unethical for an attorney to advise at least some of the

trial strategy disclosed by Chandler.

As explained above, Whithead testified that Chandler told

him about Chandler's *39 planned approach to two

prosecution issues: (1) the legality of the government's

search of Chandler's residence, and (2) how to rebut the

implications of the government's cell-tower data evidence

placing Chandler at the scene of the December 2014 shooting.

Whithead recounted that Chandler had said he would suggest

that his DNA was somehow transferred to the firearm, and

that he would present an alibi witness for the night of the club

shooting.

On the government's direct examination, Whithead gave the

following testimony regarding what he had learned about the

planned defense strategy concerning the search:

Q: Now, did you have any other discussions about the gun

or guns, and [Chandler's] concern about the gun or guns

recovered? ...

A: He said he was going to argue the fact that the search was

botched, and that the guns where they was found and the

photographs were taken in a place where they were found

that they shouldn't be in there.

Q: So, [Chandler] told you he was going to argue the search

was botched; is that right?

A: Correct, ma'am.

Q: And how did that – how did he tell you that he was going

to explain his DNA on this gun?

A: From moving it from place to place, DNA transfer.

Q: Did he tell you the gun actually got a DNA [sic] because

it was transferred or because he touched those guns?

A: Because he used the gun during the shooting.

App'x at 795.

As to the second issue—Chandler's alibi on the night of the

shooting—Whithead gave the following testimony regarding

what Chandler had told him:

Q: And did he express any concerns to you during that

conversation about certain evidence?

A: Yes, he did, ma'am, about a cell phone.

Q: What did he tell you?

A: He told me that the government had information,

evidence, to put him at the scene of the shooting, because

the cell phone itself came to a cell tower before the

shooting.

A: Yes, I did, ma'am.

Q: And how did he tell you that he was going to fight that

evidence?

Q: Could you tell the jury and the Judge what those

discussions were?

A: He was going to have an alibi that he was at a party with

his girlfriend where she's with him.

A: He was scared that he knew that the gun that he used for

the shooting had his DNA on it.

Q: And what did he tell you he was going to do about that?

Id. at 796.

To repeat: Chandler gave this information to Whithead of

his own volition, in disregard of the confidentiality required

to maintain attorney-client privilege. The record does not

reflect that these strategies came from a consultation with

United States v. Chandler, 56 F.4th 27 (2022)

counsel; we are asked to infer that they may have come

from counsel, Appellant's Br. at 30, but any advice to

develop a false alibi would likely have been unethical

in any event. Unlike the circumstances presented in the

cases discussed above, Whithead did not even participate

in a meeting with defense counsel or overhear a privileged

conversation as a government agent. Indeed, so far as

we can see, the only bases that the record provides for

inferring any involvement of Chandler's counsel in what

*40 Chandler told Whithead are Chandler's references to

cell tower data and to items recovered from the Anderson

Road residence. This information might—but need not—have

been based on government disclosures to Chandler and his

counsel about the evidence that would be presented at trial.

More fundamentally, statements such as these—voluntarily

made by defendants to third parties who are not agents

of the government at the time of their utterance—are by

definition not privileged and cannot be used to establish an

“invasion” of the attorney-client relationship attributable to

the government. 7

We thus see no sound basis for concluding that Whithead's

testimony reflected “privileged information [that] [was]

passed to the government” that could, if prejudice were

shown, provide a basis for a valid Sixth Amendment claim

under Weatherford. Dien, 609 F.2d at 1043. Accordingly, we

reject Chandler's Sixth Amendment claim.

II. Motion to suppress

Chandler also contests the district court's denial of his motion

to suppress evidence recovered from the searches of the

Anderson Road residence and of his car, described above.

On a challenge to a district court's denial of a motion to

suppress evidence, “we review legal conclusions de novo and

findings of fact for clear error. We also review de novo mixed

*41 questions of law and fact. We pay special deference

to the district court's factual determinations going to witness

credibility.” United States v. Bershchansky, 788 F.3d 102, 108

(2d Cir. 2015) (internal quotation marks, citations, and italics

omitted).

A. Reasonable suspicion to conduct this search

In his counseled brief on appeal, Chandler acknowledges the

condition of his supervised release providing that probation

officers were entitled to search his house or vehicle “if

the Probation Department ha[d] a reasonable belief [that]

contraband [was] present.” Appellant's Br. at 31. 9 He also

concedes that the officers had a reasonable belief that

he was engaged in criminal activity outside of his home.

Chandler contends instead that the Probation Department

showed an insufficient nexus between his criminal activity

and the places searched—his home and his rental car—to

provide the requisite reasonable suspicion. He asserts that

the officers needed, but lacked, observational or informantderived evidence to establish a link between the interior of

his home and car and his drug-trafficking activity and gun

possession.

To support his position, Chandler primarily relies on outof-circuit decisions involving the legitimacy of police

searches that are subject to the Fourth Amendment warrant

requirement. He first cites the Sixth Circuit's decision in

United States v. Brown, where the court rejected the issuance

of a search warrant for the defendant's home on the ground

that the government had failed to present reliable evidence

connecting the suspected drug dealer's ongoing criminal

activity to his residence. See 828 F.3d 375, 383 (6th Cir.

2016). The Sixth Circuit explained that it had “never held[ ]

that a suspect's status as a drug dealer, standing alone, gives

rise to a fair probability that drugs will be found in his

home.” Id. (internal quotation marks and citation omitted). 10

Chandler also cites United States v. Bain, where the First

Circuit “expressed skepticism that probable cause can be

established by the combination of the fact that a defendant

sells drugs and general information from police officers that

drug dealers tend to store evidence in their homes.” 874 F.3d

1, 23–24 (1st Cir. 2017).

Ordinarily, law enforcement must obtain a warrant supported

by probable cause before searching a private residence.

See United States v. Julius, 610 F.3d 60, 64 (2d Cir.

2010). It is a familiar and welcome rule that “[t]he Fourth

Amendment protects the right of private citizens to be free

from unreasonable government intrusions into areas where

they have a legitimate expectation of privacy.” *42 United

States v. Newton, 369 F.3d 659, 664 (2d Cir. 2004).

Individuals serving a term of federal supervised release,

however, enjoy a diminished right of privacy. See id. at

665; see also United States v. Edelman, 726 F.3d 305, 310

(2d Cir. 2013) (“[P]ersons on supervised release who sign

United States v. Chandler, 56 F.4th 27 (2022)

[waivers] manifest an awareness that supervision can include

intrusions into their residence and, thus, have a severely

diminished expectation of privacy.” (quoting Newton, 369

F.3d at 665)); United States v. Balon, 384 F.3d 38, 44 (2d Cir.

2004) (explaining that a “diminished expectation of privacy ...

is inherent in the very term supervised release” (internal

quotation marks omitted) (emphasis in original)). Those

expectations are reasonably diminished for an individual on

supervised release to enable the government to monitor a

released felon's activities while reentering society and to

protect the public against the possibility of renewed criminal

activity. Thus, the Supreme Court has held that “[w]hen an

officer has reasonable suspicion that a probationer subject

to a search condition is engaged in criminal activity, there

is enough likelihood that criminal conduct is occurring that

an intrusion on the probationer's significantly diminished

privacy interests is reasonable.” United States v. Knights, 534

U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). 11

This is a less demanding standard than the probable cause

standard. As we commented in United States v. Reyes, “the

probable cause requirements of the Fourth Amendment,

which apply to a regular law enforcement officer executing

a search warrant for an individual's home, simply do not

apply to visits by probation officers to the homes of convicted

persons serving a term of supervised release.” 283 F.3d

446, 462 (2d Cir. 2002). Accordingly, the supervisee—here,

Chandler—expressly consents to allow a warrantless search

on “reasonable suspicion” instead of “probable cause.”

To determine whether officers had reasonable suspicion

to justify a search, courts look to the “totality of the

circumstances” to determine whether the officer had a

“particularized and objective basis for suspecting legal

wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122

S.Ct. 744, 151 L.Ed.2d 740 (2002) (internal quotation marks

omitted). Here, that standard is easily satisfied.

Officer Stickley had received reports of Chandler's drug

trafficking and firearm use from various sources. Those

reports involved conduct that occurred outside of Chandler's

home as well as the display of a firearm in a family

member's home, and Mrs. Chandler's account that Chandler

“maneuver[ed] ... his hip to make it seem like he was in

possession of a firearm,” App'x at 182, and stated that

he would “come to her house and ‘air this place out[,]’

” id. at 179. Mrs. Chandler additionally *43 informed

Officer Stickley that Chandler was dealing drugs using a

particular phone number, and that he had a past practice

of storing his firearm in the center console of his rental

car. Officer Stickley therefore received from Mrs. Chandler

a “particularized and objective basis for suspecting legal

wrongdoing” connected to Chandler's home and rental

car—namely, her informed suspicions of Chandler's drug

trafficking and possession of firearms. Arvizu, 534 U.S. at

273, 122 S.Ct. 744 (internal quotation marks omitted). Parts

of Mrs. Chandler's statement were further confirmed by the

Nassau County Police Department prior to the execution of

the searches on January 13. Chandler also had an extensive

history of drug dealing and violence, and his past methods

of conducting his criminal business were familiar to Officer

Stickley. Taken as a whole, these facts readily sufficed to

establish reasonable suspicion to search Chandler's residence

and vehicle for evidence of related activity. No closer nexus

was necessary. See United States v. Chirino, 483 F.3d 141,

148–49 (2d Cir. 2007) (concluding that reasonable suspicion

supported a warrantless probation search of defendant's

bedroom although the search was precipitated by an abuse

report concerning a person who was not in the bedroom).

In combination, the tip, its confirmation, and the totality of

the circumstances “gave rise to a reasonable suspicion that

criminal activity ‘may be afoot,’ ” which was sufficient to

justify the warrantless search of Chandler's residence and

rental car. United States v. Bailey, 743 F.3d 322, 332 (2d Cir.

2014) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868,

20 L.Ed.2d 889 (1968)).

B. Stalking horse

In a further effort to exclude the results of the

searches, Chandler contends that the Probation Department

impermissibly acted as a “stalking horse” for the NYPD.

He asserts that the NYPD was the real law enforcement

animator of the searches, but because it lacked probable cause

to conduct the searches, it conscripted the federal probation

officers with their less demanding standard to conduct the

searches. Appellant's Br. at 50–53. The district court rejected

that claim as precluded by our precedent. See United States

v. Chandler, 164 F. Supp. 3d 368, 380–82 (E.D.N.Y. 2016).

We do so as well.

It has been argued that “a probation officer may not use his

authority to conduct a home visit to help law enforcement

officers evade the Fourth Amendment's usual warrant

United States v. Chandler, 56 F.4th 27 (2022)

and probable cause requirements for police searches and

seizures.” Reyes, 283 F.3d at 450. As Chandler acknowledges,

however, we have ruled that the “stalking horse” theory “is not

a valid defense in this Circuit.” Id. at 463. We see no reason

to revisit that ruling here. The Probation Office had reliable,

and at least partially confirmed, information about Chandler's

renewal of unlawful activities, and therefore had ample reason

consistent with its own mission to conduct the searches that

Chandler now assails. Chandler was on supervised release for

a third time and had demonstrated much experience in the

particular field of criminal drug dealing. That the probation

officers were assisted by NYPD officers does not suggest that

the Probation Office was acting at the NYPD's direction for

its purposes. Accordingly, Chandler's argument for revisiting

this rule fails to persuade.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

judgment of conviction. *44 12

All Citations

56 F.4th 27

Footnotes

Except as otherwise noted, the facts as set forth here are drawn from the Magistrate Judge's account, which

was adopted by the district court and which are not disputed by either party.

More specifically, in 2003, Chandler received a sentence of 78 months’ imprisonment and 5 years’ supervised

release after he pleaded guilty to possessing cocaine base with intent to distribute. In August 2007, Chandler

was released to a halfway house, which he soon fled. After being recaptured and pleading guilty to an

escape charge, Chandler was sentenced in April 2009 to nine months’ further incarceration and a new term of

supervised release. In August 2012, Chandler was arrested for violating the terms of his supervised release

by criminally possessing a narcotic drug and committing assault with intent to cause physical injury to an

officer. He pleaded guilty to those charges and was accordingly sentenced to 24 months’ imprisonment and

3 years of supervised release. It was during that third term of supervised release, imposed in 2012, that he

committed the crimes described above, leading to the conviction from which he now appeals.

Mrs. Chandler's first name also appears in the record spelled “Tashica.”

Mrs. Chandler's uncle later corroborated her account of the January 1 incident to Officer Stickley. App'x at

190–91.

Upon referral by the district court (Spatt, J.) for an evidentiary hearing with respect to certain issues raised

by the motion to suppress, App'x at 32–63, Magistrate Judge Steven I. Locke recommended that the district

court deny the motion. He concluded that the “information received by Officer Stickley, whom the Court

finds testified credibly, gave rise to a reasonable suspicion that criminal activity may be afoot sufficient to

justify the Anderson House search” and the search of the rental car. Chandler, 2016 WL 11481202, at *7–

8 (internal quotation marks omitted). Rejecting Chandler's objections, the district court adopted Magistrate

Judge Locke's report and recommendation. See Chandler, 2016 WL 4076875, at *2–3.

At the Massiah hearing conducted in the district court, Chandler did not contest the credibility findings or the

legal ruling there made by the district court, nor does he here. Rather, he has crafted a new argument based

on Weatherford, as set forth above. See Appellant's Br. at 19–20 (“In our case, the district court specifically

United States v. Chandler, 56 F.4th 27 (2022)

found that there was no Massiah violation. Defendant does not ask this Court to revisit that ruling. ... However

the government came to know from Whithead about defendant's trial strategy, this evidence was inadmissible

at trial.”). Chandler concedes on appeal that he did not properly object at trial to the introduction of litigationstrategy evidence. See Appellant's Br. at 18.

We observe that in United States v. Hamilton, a case relied on by the government, the Seventh Circuit denied

a Sixth Amendment claim in similar circumstances, concluding that even if the information the defendant

communicated to his cellmate had been privileged, the defendant waived any such privilege by voluntarily

disclosing the confidential information. See 19 F.3d 350, 353 (7th Cir. 1994). Chandler argues that Hamilton

is “distinguishable” and “inapt,” Appellant's Reply Br. at 1–2, but he offers no persuasive reason to treat the

case as anything but fully consistent with our approach.

In urging a different result, Chandler proposes a broad rule holding that the government violates the Sixth

Amendment whenever it uses defense strategy information, even if the method of its acquisition neither ran

afoul of the attorney-client privilege nor intruded on the attorney-client relationship. Appellant's Reply Br.

at 7–10. In support, he directs our attention to the Third Circuit's statement in United States v. Costanzo

that a Sixth Amendment violation may occur even “when there is no intentional intrusion or disclosure of

confidential defense strategy, but a disclosure by a government informer leads to prejudice to the defendant.”

740 F.2d 251, 254 (3d Cir. 1984). But the bright-line rule that Chandler urges us to apply is inconsistent

with our precedents interpreting Weatherford. They hold that a Sixth Amendment violation can occur only if

privileged information is given to the government or the government intentionally invades the attorney-client

relationship. See Ginsberg, 758 F.2d at 833; Dien, 609 F.2d at 1043; Klein, 559 F.2d at 197. Because the

government neither obtained privileged information nor intentionally invaded Chandler's relationship with his

attorney, Chandler's Sixth Amendment challenge fails.

In any event, application of the Costanzo formulation would not change the result here because Chandler

—like the defendant in Costanzo—was not unfairly prejudiced as a result of his disclosure of his likely trial

strategy. See Costanzo, 740 F.2d at 257. First, Whithead's testimony about Chandler's confession that he

had possessed guns and shot a rival drug dealer only corroborated a wealth of other adverse evidence

against Chandler, and this testimony did not implicate Chandler's Sixth Amendment right to counsel because

it concerned his criminal conduct and not his intended trial strategy. Second, although Whithead also testified

about Chandler's trial strategy, this information was legally obtained by the prosecution and was not exploited

by it. The primary value of Whithead's testimony lay in Chandler's admission of guilt, his evident awareness

of the strength of the prosecution's evidence, and his intention to concoct theories to obscure the truth about

his actions. And while these portions of Whithead's testimony were certainly damaging to Chandler, it is

indisputable that they were properly admitted.

We proceed on the understanding that the “reasonable belief” standard provided in the Conditions of

Supervised Release that governed Chandler's supervision is no different from the “reasonable suspicion”

standard referred to by both parties and adopted in United States v. Knights, 534 U.S. 112, 121, 122 S.Ct.

587, 151 L.Ed.2d 497 (2001).

Two years after Brown, the Sixth Circuit in Peffer v. Stephens commented that

[t]he requirement that there be additional reason to think that evidence of the crime will be found in the

criminal's residence is not as onerous as it may appear. A magistrate may infer that the evidence sought is

likely to be found in the criminal's residence based on “the type of crime being investigated, the nature of

the things to be seized ... and the normal inferences that may be drawn as to likely hiding places,” and “it

United States v. Chandler, 56 F.4th 27 (2022)

is reasonable to suppose that some criminals store evidence of their crimes in their homes, even though

no criminal activity or contraband is observed there.”

880 F.3d 256, 270 (6th Cir. 2018) (quoting United States v. Williams, 544 F.3d 683, 686–87 (6th Cir. 2008)).

In United States v. Braggs, we recently held that state parole officers’ warrantless search of a defendant

parolee's home—concededly unsupported by reasonable suspicion—was nonetheless consistent with the

Fourth Amendment under the Special Needs Doctrine. See 5 F.4th 183, 188 (2d Cir. 2021). In Braggs, officers

executed the search based on an anonymous tip that the parolee may have guns in his house. Id. at 184.

The government acknowledged that it had “insufficient evidence of wrongdoing by [the parolee] to establish

reasonable suspicion for a search.” Id. We agreed with the government, however, that no violation had

occurred, concluding that “the search of [the defendant's] house was reasonably related to the performance

of the [parole] officers’ duties and therefore constitutionally permissible.” Id. at 188. We do not apply Braggs

or the Special Needs Doctrine here, having concluded on the record before us that the search of Chandler's

residence and car rested squarely on reasonable suspicion.

In his pro se brief, Chandler provides additional arguments in support of vacating his conviction. These

include claims that (1) insufficient evidence supported his conspiracy conviction; (2) the district court should

have excluded a Drug Enforcement Administration analyst's trial testimony as a violation of the Confrontation

Clause under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); (3) the

trial statements of three eyewitnesses were erroneously admitted into evidence; and (4), the Probation

Office miscalculated his Guidelines sentencing range. We have carefully considered these arguments and

find in them no basis for reversal. Chandler also argues that his 354-month sentence, which was above

the applicable Guidelines range of 240 to 275 months’ imprisonment, was substantively unreasonable.

We have explained in the past that, “[a]s to substance, we will not substitute our own judgment for the

district court's on the question of what is sufficient to meet the [18 U.S.C.] § 3553(a) considerations in any

particular case. We will instead set aside a district court's substantive determination only in exceptional cases

where the trial court's decision cannot be located within the range of permissible decisions.” United States

v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (internal quotation marks and citations omitted).

The district court here reasonably concluded that an above-Guidelines sentence was warranted because,

among other things, Chandler had repeatedly engaged in criminal conduct on supervised release even after

serving significant custodial sentences. Accordingly, we reject Chandler's argument that his sentence was

substantively unreasonable.

End of Document

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