United States v. Nemessis Bates, 2017 U.S. App. LEXIS 4288

Nemo Bates owned a carwash; in 2010 he reported missing jewelry and $20,000 and suspected Christopher “Tiger” Smith. Tiger was shot and killed later that year.
Federal grand jury indicted Bates on four counts: solicitation to commit a crime of violence (18 U.S.C. §1958/373), conspiracy to use interstate facilities for murder-for-hire (18 U.S.C. §1958/2), causing death with a firearm (18 U.S.C. §924(j)(1)/2), and conspiracy to possess firearms (18 U.S.C. §924(o)).
Government’s theory: Bates hired Walter Porter (shooter) and Aaron Smith to kill Tiger for $20,000 in retaliation for the theft. Defense theory: Porter and Smith acted independently in a subsequent conspiracy to extort Bates.
At trial the government presented 21 witnesses, including jailhouse informant Anthony Comadore, who testified about an alleged post-indictment jailhouse confession by Bates. Bates objected on Sixth Amendment (Massiah) grounds.
Jury convicted Bates on all counts; district court denied his Rule 29 motion for judgment of acquittal. Bates appealed, arguing (1) admitting Comadore’s testimony violated his right to counsel and (2) the evidence was insufficient to support convictions.
The Fifth Circuit affirmed, holding the district court did not abuse its discretion admitting Comadore and that the sufficiency and credibility challenges failed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility under Massiah (Sixth Amendment)	Comadore was a government agent who elicited incriminating statements after indictment; testimony violated right to counsel	Government: no evidence it promised or directed Comadore to solicit statements; no agency relationship	Admitted: no showing Comadore was promised/led to expect or received a benefit or acted under state control; no Massiah violation found
Requirement of an evidentiary Massiah hearing	Bates: court should have held full evidentiary hearing sua sponte	Government: no such hearing requested below; plain-error standard applies	No plain error: Bates failed to request a hearing below and did not show clear, obvious error
Sufficiency of the evidence (Rule 29)	All convictions should be overturned because government evidence was contradicted by defense evidence	Government: conflicts are for the jury; evidence viewed in light most favorable to verdict supports convictions	Affirmed: appellate review defers to jury on conflicts and credibility; evidence sufficient as a matter of law
Witness credibility attacks	Bates: key witnesses (Comadore, Smith, ex-lovers) were unreliable due to incentives, criminal history, willingness to lie	Government: credibility issues were presented to jury for resolution	Rejected: credibility determinations are for the trier-of-fact; appellate court will not reassess credibility

Massiah v. United States, 377 U.S. 201 (1964) (Sixth Amendment forbids government-elicited incriminating statements after indictment in absence of counsel)
United States v. Heard, 709 F.3d 413 (5th Cir. 2013) (admissibility review for abuse of discretion)
Henderson v. Quarterman, 460 F.3d 654 (5th Cir. 2006) (elements for alleging Massiah violation)
Creel v. Johnson, 162 F.3d 385 (5th Cir. 1998) (two-prong test for government agency relationship with jailhouse informant)
United States v. Rojas Alvarez, 451 F.3d 320 (5th Cir. 2006) (de novo review of denial of post-trial judgment of acquittal)
United States v. Lage, 183 F.3d 374 (5th Cir. 1999) (jury verdict need not exclude every reasonable hypothesis of innocence)
United States v. Lundy, 676 F.3d 444 (5th Cir. 2012) (conflicts in evidence resolved in favor of jury verdict)
United States v. Owens, 683 F.3d 93 (5th Cir. 2012) (appellate court cannot reweigh witness credibility)
Puckett v. United States, 556 U.S. 129 (2009) (plain-error standard requires clear or obvious legal error)
United States v. Beaumont, 972 F.2d 553 (5th Cir. 1992) (issues not adequately developed on appeal are waived)