United States v. David Furtado Gray

judgment affirm the of the district spects, we pro- this case for further

court. We remand opinion. with this ceedings consistent PART, IN AFFIRMED IN REVERSED PART. America,

UNITED STATES of Plaintiff-Appellee, GRAY, Furtado Defendant- David Appellant. No. 96-4617. Appeals, United States Court of Fourth Circuit. Argued Dee. 1997. Decided Feb. Bredar,

BRIEF: James K. Federal Public Defender, Office of the Federal Public De- fender, Baltimore, Maryland, Appellant. Lynne Battaglia, A. Attorney, United States Gregory Welsh, Assistant United At- States Baltimore, torney, Maryland, Appellee. for WILKINSON, Before Judge, Chief WIDENER, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Judges. Circuit by published opinion. Judge Affirmed opinion, NIEMEYER wrote the in which Judge Judges Chief WILKINSON and WIDENER, ERVIN, WILKINS,, LUTTIG, WILLIAMS, HAMILTON* MICHAEL, joined. and MOTZ Judge dissenting opinion. wrote a MURNAGHAN

OPINION

NIEMEYER, Judge: Circuit For the gangland-style killing of Jessie Waller, jury convicted David F. murder in racketeering activity aid of in vio- 1959(a)(1) § lation of 18 U.S.C. and use of a firearm relation to a crime of violence 924(c). § violation of 18 U.S.C. The district imprisonment. him to sentenced life Gray’s principal argument As appeal, improperly contends that the district court admitted from him confessions obtained in custody while he was without Rejecting argument, cause. as well as by Gray, the others made we affirm. Waller, On October while Jessie Ward, Tracy and Antoine Little were walk- ing alley in an off East Preston Street Baltimore, them, firing three men ambushed pistols. attempted 9mm automatic As Little escape, the men and also fired at chased ambush, him. As a result of the Waller was Balter, Joseph Supervisory A. ARGUED: killed and Little and Ward wounded. Police Defender, investigators casings Assistant Public Federal Office of recovered 29 bullet Defender, Baltimore, fragments the Federal Public Ma- 9 bullet from the scene ryland, Appellant. Harvey adjacent for Ellis Eisen-' murder and the street where Little fled, berg, Attorney, analysis Assistant United States Bal- had and forensic confirmed timore, Maryland, Appellee. ON three 9mm firearms had been used

attack, to involvement the murder from one of the admitted bullets fired provided of incrimina- a number weapons. Waller the crime. He admitted ting details about later, agents FBI months when Several lord, approached by drug that he officers were re- and state law enforcement $5,000 Whitener, with an offer Ronald wiretaps in con- viewing tapes of conducted gather- life. also admitted Waller’s trafficking drug an unrelated nection with him in people accompany ing two other able, infor- investigation, they were based on hunting killing Waller. When down and tapes, to connect someone mation from the Gray requested attorney, an at about 6:30 or “Fat with the street name of “David” Gray was for- p.m., the interview ended and killing “Black David” with the Jessie.” mally arrested. They that “Black Jessie” was Jessie believed suggested officer Waller. When a state Gray’s motion to pretrial hearing At a Gray, might “Fat be David who was David” had been suppress the confession because he officers, investigators to the state the known probable cause and had arrested without police Gray cheek of and conducted record making inculpatory manipulated into arrested in discovered that he had been statements, granted court district possession pistol. a 9mm 1994 for March suppress by as to statements made motion to subjected pistol Gray from in They seized his Miranda Gray rights before he was read tests, to forensic connection with that arrest the court found those statements because pistol and the tests disclosed that the seized illegal an arrest. The court incident to pistol Gray from in March 1994 was the same found, however, made that the statements 14 of recovered from that fired the bullets Gray rights been read his were after had 1993 murder scene. the October not admissible because the confessions were causally attenuated coerced and were too placed Gray’s photo in a agents The then illegal to from the initial arrest have been six-photo array array to and showed tainted the arrest. Little, Ward and the two survivors scene, Little, who attack. had fled jury Gray in After the convicted of murder Ward, however, identify anyone. to unable racketeering illegal activity aid of and use Gray “resembled” photo stated that firearm, Gray the district court sentenced of his attackers. one prison to life in under U.S.S.G. 2E1.3(a)(2) (establishing §§ base of- & 2A1.1 identification, Following agents FBI first-degree in fense level of 43 for murder Maryland state officers and enforcement law racketeering activity). aid of bring Gray to in for questioning. decided unsuccessfully looking After for him appeal This followed. weeks, 1,1994, August located him on at They probation officer’s office. hand- II him took him that office to cuffed and from Gray he was contends when hand- attorney’s City, the state’s office in Baltimore brought questioning in cuffed and on where, a.m., they placed at 11:20 him in a August he was arrested without Shortly p.m., Gray after 1 after room alone. he probable cause and that the statements waiting had been in the room for about one police custody made while in were the direct minutes, forty-five officers be- hour and product illegal Accordingly, of that arrest. gan Gray questioning about other crimes and in argues he that the district court erred not time, making talk. At that state homi- small on suppressing the statements he made Sydnor, cide detective Marvin who was Miranda August receiving warnings 1 after charge investigation, of the Waller murder Gray admitting them at trial. also yet at had not arrived the office. When alternatively, argues, that the statements he p.m., arrived at 1:40 gave August voluntary 1 were not his Miranda Gray Gray rights, read suppressed ground. on that should be initialed a form which stated he understood Thereafter, Gray rights agreed those and waived them. district hours, August him in on 1 for Gray over course of next five when the officers took him since statements that made they in fact arrested several hours questioning, accompany voluntary, setting, the officers later in a non-coercive fol- “compelled to he was lowing rights, the office.” The court also a waiver of his Miranda were agents causally any law enforcement officers did so attenuated from coercion agreed that the time, not, probable, illegal have arrest as not to have been tainted concluded: it. Gray. arrest The court temporal nexus between October begin analysis by determining We our the March 8th seizure of the shooting and first whether sufficient, simply gun from Mr. August cause to arrest Court, support judgment of this because, supported by if prob the arrest was that Mr. was in contin- the inference address, cause, able we need not the issue of possession handgun peri- of that for a uous attenuation. exceeding months when it was od six “ 8,1994. him seized from on March justify ‘Probable cause’ to an ar us, simply The real tells and all world rest means facts and circumstances within newspaper you have to is read the do knowledge the officer’s that aré sufficient to know, every day handguns, unfortu- prudent person, warrant a or one of reason nately, change quite rapidly, partic- hands caution, believing, able the circum

ularly city. in the inner shown, suspect stances that the has commit ted, committing, is or is about to commit an Gray Addressing identification of as Ward’s Michigan DeFillippo, v. attackers, offense.” 443 U.S. resembling one of his the district 31, 37, S.Ct. 2627, 2632, 99 stated, 61 L.Ed.2d 343 say young African “to that a (1979); Williams, see also Adams v. 407 City in in 1993 and U.S. American male Baltimore 143, 148, 1921, 1924, 32 92 S.Ct. L.Ed.2d 612 another African-American 1994 resembles (1971). probable requires While more any in simply nothing male adds rational suspicion,” requires than “bare it less than court, however, way.” on The went to con- necessary that evidence to convict. See Gray August on questioning clude that the of States, Brinegar v. 338 U.S. time, United “by 1 for some and the time continued (1949). 1302, 1310-11, 69 93 L.Ed. 1879 statements, S.Ct. [Gray] inculpatory ... made the objective probability It is an standard of thorough dissipation any of [there was] prudent persons apply in reasonable- and ev unlawful of Mr. arising taint from the seizure eryday Brinegar life. As the Court ex Gray.” As the court summarized: plained: there, The that once Court satisfied ... cause, however,

with the combination of the Miranda probable dealing Gray, warnings given that were to Mr. implies, very as the name we deal with any showing of actual technical; absence of coercion probabilities. These are not practiced against Gray, or on Mr. the ab- they practical are factual and consider- any promises, of threats sence evidence everyday on which ations of life reasonable Gray, by technicians, or inducements to Mr. the time men, prudent legal and inculpatory he made the statements con- act. cerning shooting, Mr. the Jessie Waller objective probable Id. Because cause is an any statements were free of taint test, examine the facts within the knowl we arising otherwise as a result of his deten- edge arresting officers to .determine transportation. tion and provide probability whether on which Gray “clearly un- court also found act; prudent persons reasonable and would rights “knowing- derstood” his Miranda subjective not examine the beliefs of we do

ly intelligently voluntarily” waived arresting officers to determine whether them. they thought proba that the facts constituted main- 517 While the continues to ble cause. See Ornelas United 690, 1657, 1661-62, probable appeal tain on that the officers had 134 U.S. Han, (1996); Gray 74 August argues cause to arrest United States v. L.Ed.2d (4th denied, unlawful, Cir.), that even if was cert. the arrest F.3d (1996). had, piece of information that officers 135 L.Ed.2d 184 first information, given wiretap suspicion The determination of whether facts focused legal probable amount to cause vel non is a supported Fat David. While this information Ornelas, one that we review de novo. See sup- only suspicion and was insufficient -, 116 S.Ct. at 1663. Of U.S. conviction, port investigation it directed the course, themselves the factual determinations solely Gray potential to David as a murderer reviewing court given are deference. “[A] When, Black months after Jessie. several findings should take care both to review murder,' Gray picked up with a hand- was only give historical fact for clear error and to gun handgun that turned out to be the same weight from those due inferences' dráwn Waller, prob- which had fired shots at judges law en facts resident and local criminally ability that involved Id. forcement officers.” significantly. Finally, the murder increased arresting The facts that officers had within shooting when one of the victims of the knowledge undisputed. in this case are their array persons, picked Gray from' an of six First, the FBI and state law enforcement Gray’s picture indicating that resembled his wiretap officers had information that a “Fat assailant, probability yet increased more. David,” which the officers believed conclude, considering together when We Gray, of David had been in- street name pointing items as three one Second, volved Waller’s murder. forensic shooters, arresting objec- officers pistol evidence demonstrated that a tively probable cause.1 Gray possessed had been used to fire 14 Gray argues that we should'show defer- third, at the shots scene of murder. And finding ence to the district court’s that hand- resembling witness identified one change rapidly, particularly facts, guns quite hands of the assailants. These three taken that, therefore, city, readily the inner together, would lead a reasonable person possession handgun mere of a that was used to believe that it was implicated in the murder. a murder several months earlier is not dissenting opinion, arguing Gray’s weapon 1. The that we have was linked to the murder scene is facts, applied "spin” supported by to the selects isolated weE the record. thus . record, overlooking statements from the other dissenting opinion suggests also that the portions of the record which undermine selec- its police Gray only looking fact that found after for contends, example, tions. The dissent for that "spin” him for weeks was because Detective wiretaps Gray the information on did not make Sydnor looking said he “never went suspect only Gray “suggested might but that testified, however, him[Gray].” Agent Sheehy have information about the Waller murder.” that after "had to locate Homicide been unable however, Agent Sheehy, stated that after he re- Gray,” David it asked the FBI to assist. J.A. 296. wiretap linking ceived the information David Fat Gray by, The FBI thereafter made efforts to find murder, and with the Waller after he discussed example, staking out an intersection in East possibility Agent that HiE Fat David Gray hang where "known to Baltimore was out.” might Gray, be David "we ... contacted the FinaEy, through J.A. at 297. it was FBI’s pass along Homicide Unit ... this information Maryland that it efforts learned from State Police possible person that we believed that a in the Gray August was on where murder of Jesse Lee Waller could have been FinaEy, probative the dissent attributes no val- Gray.” Sydnor David J.A. at 292. Detective testi- Gray ue to Ward's identification of made from a impor- simEarly. at fied See J.A. 113-14. More photo array photo because Ward stated that the tantly, Sheehy Agent precise- testified that it was Gray only of “resembled” one of the attackers. ly suspicion however, this about that formed the Sydnor, Detective that he testified comparing basis for the baEistics test of shells eyes reviewing array pho- watched Ward’s of gun taken from the murder scene with the seized eyes stop that tos and noticed would his Indeed, Gray. Agent. stated, from J.A. See 292-93. Gray's picture. As Detective "He testified, Sheehy explicitly got around, "As soon we as looking continued around and [Ward] record, name], [Gray’s got the arrest and eyes stop Gray’s photo.” name and his would David gun gun saw that the him, was—a was recovered from pressed J.A. at 227-28. When officers Ward Homicide, identification, couple any when we notified within a about reluctance to make an weE, confirmed, days they say, “Yeah, gun of is when called to Ward that resembled the Sydnor may guy.” was tested and in 14 of the 29 rounds are at 228. J.A. WhEe Detective fact proven weapon." to have come from the same not have believed that such an identification was convict, sufficiently recog- J.A. 330. The causative connection between the definite use to value, Sheehy. suspicion Gray discovery probative Agent initial and the that nized its as did young mur- thought involvement in the ticated man and “he enough to establish could accept way subjects or not we the district talk his around might Whether whatever der. change noted, however, handguns up.” conclusion that The court court’s come ultimately import rapidly Sydnor, little when “clearly hands who was hypothesis arrived, was undermined charge’ because that investigation,” of this Gray’s involvement. “fully the other indicia rights”; clearly was advised of “he his case, arresting began with them”; officers knowingly understood and “he wiretaps information from that was intelligently voluntarily waived [them].” When, murder. who was involved Waller’s demonstrates, Gray told, As the record was information, on that directed based among things, other that he did not need to investigatory Gray, they attention to their any questions any answer and that answers handgun from him the that had recovered gave that he against thereafter could be used Finally, actually been used at the scene. him in court. corrobora- arresting officers had additional agree We with the district court information that one of the victims was tive nothing Gray’s that there is to indicate that identify Gray photo array able to from a product statements were the of coercion. A resembling his This combination assailant. given voluntarily statement or confession is greater probability a far of information raises product when it is the of “free and uncon Gray’s involvement than that derived from person giving strained choice” of the it. If possession handgun his mere of a that had person’s capac will is “overborne and his earlier been used a crime. ity critically impaired,” for self-determination Gray’s Because we conclude detention voluntary, or statement confession is not supported by probable was cause and was Schneckloth prohibited. and its use is legal, any therefore statements that he made Bustamonte, 218, 225-26, 412. U.S. Miranda voluntarily having given after (1973). 2041, 2046-47, 36 L.Ed.2d 854 warnings were admissible at trial. overwhelming The evidence in this case is however, contends, that his con statements, after he made voluntary. argues fession was not He his Miranda given rights, voluntary were given August his statements were that his will was not overborne when he implied coerced use of a tactic First, Gray making given them. his any statements he made not be would used Miranda any rights gave before he against him because the statements were testimony. admitted He initialed under- prior made in furtherance of his and unrelat standing rights signed of each of his Hill, relationship Agent pres who was ed indicating rights form that he understood Gray points Agent out Hill was not ent. that Second, waiving and that he was them. as team, part investigatory but was found, way the district court “in no did the only Gray Gray to induce to talk. As there Attorney’s any ... United States office make argument, “government agents makes the assurances, promises or inducements to Mr. consciously manipu by this belief cultivated Gray reasonably likely or to have designed lating exploiting agent relationship Hill’s convincing Gray Mr. that his the effect Gray in with Mr. a manner that increased ... activity in violent criminal offenses would Gray that submit to the likelihood Mr. would Indeed, any way in be immunized.” there is the coercive tactics.” suggest no in the record to that evidence respect argument, Gray any way testimony that his With to this the district believed against him. court found that federal and state officers would not be used He was 1, interrogated Gray August specifically that his answers could be who before told his Mi- p.m., may, him against arrived at 1:40 used when he waived indeed, Third, randa [Gray] up,’ you rights. have “‘softened if there is no evidence will,” any way through small talk. court ex- that the law enforcement officers however, threats, violence, any improper plained, only engaged that not was this tac- or comfortable, testimony suggestions Gray’s how tic indicative of a non-coercive about finally, Gray did atmosphere, Gray sophis- but also that was a would be used. And when v. United States attorney, interview immedi- sistent with innocence.” request an Jackson, (4th Cir.1989). Thus, 1168, ately considering the 863 F.2d ended. even station, spent police length of time at the part proof Gray As of its that Gray’s evidence offers no will indication 1959(a), § government violated 18 U.S.C. Rather, sup- was overborne. the evidence Gray needed establish the fact that ports the district court’s conclusion that the promised payment for the murder of Waller after he statements made by “enterprise.” enterprise may an an Such rights voluntary. read his were fact, any group be of individuals associated “ summary, proba- we find that because and the earmarks of association are ‘conti Gray’s August nuity, unity, purpose, ble arrest on cause existed shared and identifiable ” Fiel, v. given United States and that statements structure.’ 35 F.3d (4th Cir.1994) 997, United voluntary, (quoting date were admission (4th Griffin, States these statements into evidence at trial was 660 F.2d Cir.1981)). proper. government prove, must

moreover, enterprise separate apart from the association of with Ill to murder Waller. See Grif enterprise govern fin, also contends at 999. F.2d present ment failed to evidence sufficient to ease, government presented In this justify jury’s finding three of 18 elements evidence that a man named Ronald Whitener 1959(a) § (punishing violent crimes in U.S.C. drug ring; ran a distribution that he had (1) racketeering activity)2: the exis aid Kip; organization lieutenant named that the (2) “enterprise,” tence an its connection houses”; had “stash and that shot Waller (3) commerce, foreign with interstate or and robbed one of stash house Whitener’s An “racketeering.” the existence of “enter jury workers. From this evidence a could 1959(a), § prise,” used is defined continuity infer from the existence of the 1959(b)(2) “any § U.S.C. to include union or unity stash houses. It could infer from the group of in fact al individuals associated lieutenant, leader, existence of a central though legal entity, engaged which is and the existence of the stash house network. in, affect, or activities of interstate purpose It could infer shared from the testi- foreign “racketeering or commerce.” And a mony that the stash houses were used to 1961(1) activity” § is defined 18 U.S.C. drugs. distribute itAnd could infer identifi- “any involving act or ... include threat deal leader, able structure from the existence of a in. ing a controlled substance.” assistant, workers, sys- an stash house and a evidence, tem of stash houses. on this Based jury We review the verdict of a preáent- we believe that the has sufficiency by determining of evidence substantial ed evidence that would allow a evidence, “there is substantial tak whether jury dealing to conclude that ing the view most favorable to the Govern enterprise an as that term is used in 18 ment, Glosser v. United support it.” 1959(a). § U.S.C. 469-70, (1942). Moreover, government 86 L.Ed. 680 required “circumstan was also differently enterprise tial evidence is treated no than to that in engaged show the ac evidence, may direct foreign be sufficient to tivities that affected interstate or support case, guilty though government verdict even it does commerce. In this the Waller, every hypothesis presented not exclude reasonable con- that Jessie the evidence 1959(a), Gray § gerous weapon, resulting 2. 18 U.S.C. under which was commits assault in indicted, states, part: bodily injury upon, in relevant serious or threatens to Whoever, against any of, a crime of violence indi- commit receipt as consideration for the any vidual in violation of the laws of State or promise agreement or as consideration for a or conspires pay, attempts anything pecuniary to the United or or so value from an do, punished____ to shall be enterprise engaged racketeering activity in ... murders, maims, added). kidnaps, (Emphasis assaults with a dan- victim, Gray argues a heroin user who had ment about 14 shots. that this was murder inconsistency special of Whitener’s stash houses. entitled him in- robbed one to reasonably infer that jury could thus jury apply struction on the care a in should govern-' heroin.- The stash houses contained scrutinizing perjurious testimony. In mak- presented evidence that while ment also ing argument, this relies on United required produce to' heroin are poppy seeds (9th Wong, Cir.1989), v. States 886 F.2d 252 Colombia, America, in the Far grown South which, he contends proposition supports Asia, Asia, East, and Southwest Southeast that it is-reversible error for a court which Maryland. Although grown are not testimony perjurer admits the of a fail to to enterprise’s this evidence of the connection jury instruct toas how to treat such not, copious, is with interstate commerce we testimony. enough , it to meet the are satisfied that outset, At it is not clear from the required satisfy to minimal standard in Sydnor perjured record that himself. Dur- requirement commerce terstate ing pretrial hearing, Sydnor did state 1959(b)(2). § v. United States Wilkin Cf. August that on brought after he had (4th Cir.1998) son, (construing 137 F.3d 214 Gray’s attention the forensic test which 1956); Barton, § United States v. 18 U.S.C. that 14 showed bullets had been fired from Cir.1981) (2d (constru 647 F.2d 231-32 Gray’s handgun, Gray changed some of the 844(i)); § ing 18 United States U.S.C. testimony. testified,. Sydnor details of-his As (9th Bagnariol, 665 F.2d 892-96 Cir. [Gray] yes, “At this time admitted that 1981) 1951, 1962(c)). § (construing 18 U.S.C. there, participated, that he he saw the satisfy Finally, requirement its of victim, people and two other walk into the enterprise engaged proving that the in racke alley, along Darty him ap- and Cox teering activity, rely could proached the victim. He stated that he fired prove the same evidence that it used to gun 14 times but he fired into a wall enterprise of an because racke the existence Thus, Sydnor because he was afraid.” did teering activity “any includes act or threat testify that said he had fired his hand- involving dealing ... a controlled sub But, gun testimony just might times. 1961(1). Thus, § stance.” See 18 U.S.C. Sydnor’s collaps- as well have resulted from enterprise drugs that the dealt in evidence ing information contained in forensic support jury be would likewise sufficient report handgun had been fired 14 Gray’s finding enterprise engaged in that the racke Gray’s times at the scene of the murder with teering. admission that he was at the scene and Accordingly, jury we conclude ver- gun fact into a he was fired wall because dealing with an dict that “enter- trial, Sydnor afraid. At Detective did prise racketeering activity” engaged any explanation discrepancy give for the cre- 1959(a) amply supported by § used in ated his failure to remember the sub- substantial evidence. stance of statement about shots being except longer fired he no recalled

IV Sydnor hearing such a statement. stated transcript if Gray next contends that the district showed that he had pretrial failing give way hearing, its testified that at the abused discretion specific jury instruction to the on the credi that is what he said. But he confirmed that because, trial, bility perjurious witnesses he ar at the time of he did not have such gues, Sydnor perjured recollection. the district court said it Detective himself. While pretrial problems” Syd- hearing,' notes that at a motions had a “lot of with Detective testimony pretrial hearing, during testified that the' nor’s at the August interrogation, Gray expressly any suggestion that stated he had disavowed Sydnor perjured The court gun during shooting his 14 times had himself. fired stated, At “I don’t want to be -understood as incident that resulted in Waller’s death. trial, however, Sydnor Sydnor suggesting testified that he did that Detective lied.” Sydnor’s testimony hearing not make that state- court did find Detective remember ease, ing in- unlawful In this the un- on various matters to be incoherent and conduct. crime, murder, derlying first-degree gov- apart But is consistent. from the court’s obser- 2A1.1, provides § kind, erned U.S.S.G. which a vations of this there is no evidence sentencing base offense level of 43. The Sydnor willfully misrepresented table indicates that for an offense level of any or facts lied. imprisonment. the sentence is life See perjured Even if Detective 5,Ch. Pt. A. U.S.S.G. himself, we believe that the district court’s Gray argues Sentencing Guide jury adequate to the were to instructions sentence, presumptive lines’ direction of this ensure fair of witness’ consideration cred sentences, affording range without a of is ibility. only give range a Not did the court contrary authority granted by to the statute. jury credibility, of on witness but instructions Congress He notes that authorized sentences gave specific it also a instruction on the crimes, greater necessary” “not than for prior consideration of inconsistent state 3553(a), § presumptive U.S.C. and that its ments. believe that these We instructions imposition imprisonment of life removes all adequate were to meet an abuse of discretion decisions, sentencing discretion from Russell, standard. See United States v. contrary to the dictates Mistretta v. Unit Cir.1992). 1098, 1107(4th F.2d States, 361, 374-75, 109 ed 488 U.S. Wong The Ninth Circuit’s decision does 656-57, (1989), 102 L.Ed.2d and Koon v. suggest Wong, not In different result. 81,-, United court held that a witness’ admission that he (1996), 135 L.Ed.2d 392 lied under oath did not entitle the defendants Sentencing indicate that the Guidelines must special to a regarding instruction the witness’ promulgate “ranges” and were not intended testimony. explained The court that “[t]he sentencing to all withdraw discretion from give perjury failure to instruction is. judges. given reversible where the other instructions Gray also contends that his life sen adequately the trial court cautioned the impermissibly tence is invalid in because jury credibility perjurer] that the [of is fringed right jury on his constitutional to a (brackets open question.” to 886 F.2d at 257 by penalizing jury trial to decision elect a original; quotation internal marks omit- pleading guilty. trial than argues rather He ted). gave general Because the “trial court simply pled guilty, that had he he could have credibility instructions as to witness im- adjustment accep received a downward id., peachment,” Wong the court in found responsibility tance of which would have re jury fully that the aware that it needed level, authorizing, duced his offense at min credibility, including to consider witnesses’ imum, sentencing range of 360 months to perjurer’s credibility, with care. This life, might and therefore have lowered his light case is no different. of the district jail., argues time in He thus that his life range court’s broad of instructions on credi- imposed pursuant sentence was an uncon bility, we conclude that it did not abuse its stitutional scheme. refusing give specific discretion in Gray’s arguments depend assump- on two Gray. suggested by instruction tions, They both which are inaccurate. depend assumption judges first on the V have no discretion sentence a defendant Finally, Gray contends that 1959(a)(1) § who violates to less than life Sentencing United States Commission’s deci and, second, imprisonment assumption on the to impose presumptive sion life sentence going that a who defendant insists on to trial 1959(a)(1) § for violations of 18 U.S.C. adjustment cannot receive a downward beyond statutory authority. its acceptance responsibility. 1.3(a)(2), § Under 2E U.S.S.G. the Sentenc- assumption, As to the first Sentencing ing provide Guidelines that the offense level judges adjust authorize Guidelines sen- reasons, for a racketeering violent crime aid of range tences downward for a such activity applicable underly- governmental the level to the as substantial assistance to au-

775 that, cause, if un- even the arrest were responsibility. and acceptance of thorities and lawful, sufficiently attenu- 5K1.1, subsequent events §§ 3E1.1. Sentenc- See, e.g., U.S.S.G. taint so as to allow admission of the de- ated the make a downward may also ing judges fail confession. Sentencing Guidelines parture when mitigating a relevant into account

to take probable In its valiant efforts to find cause 3553(b). Thus, § sen- 18 U.S.C. factor. See case, opinion the en banc is forced to in this impose have tencing courts still discretion exaggerate' underlying facts. spin and any departure less than life when a sentence majority supposed As the describes from the offense subtracted points have been facts,” which, together, “taken would “three 42, for exam- An offense level of of 43. level readily person to believe lead reasonable of 360 months ple, authorizes sentence probable implicat- that it was Gray’s argument is fur- imprisonment. life murder,” majority op. at its in the ed Congress the fact ther undermined stray exaggerations farther and farther from contemplated guideline some itself truth, judge the truth. The. as the district have the same minimum ranges would realized, interroga- was that arrest instance, 18 U.S.C. penalties. For maximum expedir nothing fishing more than a tion were 3742(h) purposes of explains that § tion. sentences), for a review of (providing § 3742 Gray’s Because I believe that arrest guide- range’ includes a ‘guideline “the term by probable cir- supported not cause and no having upper and lower range the same line illegal removed the taint cumstances limits.” arrest, respectfully I dissent. assumption, courts Gray’s second As to downwardly for may adjust offense levels I. responsibility regardless of acceptance pleads guilty. The Sen- whether defendant A. notes make application tencing Guidelines ... does not trial “[e]onviction clear that comply the Fourth and Fourteenth To from con- automatically preclude a defendant Amendments, predicated an arrest must be for such a reduction.” U.S.S.G. sideration City v. Papachristou cause. See probable comment, (n.2). 3E1.1, § Jacksonville, 156, 169, 92 405 U.S. S.Ct. (1972). 839, 847, proba- Gray’s L.Ed.2d 110 sen- 31 Accordingly, we conclude applies to custodial predi- requirement cause arguments rest on inaccurate ble tencing See interrogations as well as formal arrests. sentencing court’s discretion cates about York, 442 99 and, therefore, Dunaway v. New U.S. that reason. fail for (1979). 2248, 2258-59, 60 L.Ed.2d S.Ct. reasons, judgment of foregoing For the exists when the facts “Probable cause the district court “would known to the officer circumstances AFFIRMED. person that prudent of a warrant the belief commit- committed or was the arrestee had ” MURNAGHAN, dissenting: Judge, Circuit Waters, Taylor F.3d v. ting an offense.’ (4th Cir.1996) (quoting United convicted of murder David (4th Garcia, 848 F.2d 59-60 racketeering v. payment from a States exchange for Cir.1988)). 1959(a)(1), assessing “In the existence § us- and of enterprise, 18 U.S.C. cause, totality of probable courts examine to a crime of vio- firearm relation ing a to the officer at 924(c), known lence, largely § on the basis the circumstances 18 U.S.C. (citing Id. United States I time of the arrest.” after his arrest. of a confession made (4th Cir.1995)). Al-Talib, F.3d supported by that the arrest was believe by more cause, supported must “Probable, erred be the district court suspicion, evidence sufficient a mere but suppress than by denying motion (citing Wong contends, required.” is not Id. dis- to convict confession. 471, 479, 83 finding, v. United judge’s Sun agreeing with the district (1963)). 407, 413, L.Ed.2d 441 by probable supported the detention was David,” evaluating In de novo whether the facts “Fat the officers believed cause, Gray, was the name of had probable “give amounted to we are to street David murder____ weight to involved Waller’s due inferences drawn from those piece The first of offi- by information that the judges facts resident and local law en had, information, wiretap cers the forcement officers.” Ornelas v. United . focused 1657, suspicion -, on Fat David. this infor- While 517 U.S. (1996). supported only suspicion mation a and was 134 L.Ed.2d 911 This does not conviction, support insufficient to a di- judge’s that we to the mean are to defer or investigation solely rected the David they officers’ belief about possessed whether potential as a murderer of Black probable The probable cause or not. cause oné, Jessie. inquiry objective asking is an what rea sonable officers have believed: if would even Majority op. at 769-770. they actual officers did believe had truth, wiretap vague lead was so as cause, uphold probable if we will arrest insignificant to be in contributing probable (cid:127) support the “evidence was sufficient to a such Davids, cause.1 many There are doubtless Han, reasonable belief.” States v. United ones, corpulent even in the Baltimore area Cir.), cert. denied, (4th F.3d Gray. other than David The most that can 1239, 116 (1996). S.Ct. 135 L.Ed.2d184 fairly wiretap be said about the “information” However, judge a “trial views the facts of a was that way agents] [the “the we FBI inter- particular light case the distinctive fea preted [wiretapped] conversation” was community____ tures events of the The that “the name Dave or used in David [was]

background a provide facts context for the killing reference to individuals related to the facts, together yield seen historical when (J.A. (direct of Jesse at 288 exam- [Waller].” Ornelas, inferences that deserve deference.” Sheehy).) Agent ination of FBI Hill Agent at-, U.S. at 1663. suggested being the name of David “as possible name for the Fat or David David agents] that we FBI [the had had reference B. 289.) to in the conversations.” {Id. probable en majority banc finds state law charge enforcement officer in Gray’s wiretap arrest from “informa- investigation, Sydnor, murder Detective tion,” ballistics evidence and so-called iden- only knew tification. The district found to the [t]hey tap, I had—someone had wire contrary. I believe that three leads re- Jesse, understood, and Black Jesse’s name by majority, on the en lied banc even taken up, had come also David name had together, were no than suspi- more bases for up, they come and whatever had reason opinion’s exagger- But for the en cion. banc put together, those two at which time ating spin, it clear would be that none con- they [my superi- whatever reason notified enough probable tributed to establish cause. said, well, [Sydnor] or] who fact Marvin

has a ease with Black Jesse that involved, spoke at which time I them 1. putting and we started two and two to- opinion begins by describing The en banc gether. supposed wiretap “information” “focused (J.A. (cross-examination at 139 of Detective suspicion” investigation” “directed to Sydnor).) explained, As Gray: wiretap suggested Gray might lead First, murder, the FBI have and state law enforcement information about the Waller wiretap suspect: officers had but information that a did not establish as a oversight finding probable 1. It was not mere nor coincidence that that there was no cause for (cid:127) supposed "wiretap wholly arrest, (J.A. information” was (ruling suppression at 500-02 ignored arresting explana- officers in their motion)), meager in its believing of their tion basis for arrest, see Brief of Appellee defense of the at 12- cause, (redirect (J.A. at 259 examina- Sydnor)), by judge of Detective tion district thefts, April illegal Now, because of sales and because you said that it was Q: legal sales. developed Mr. you first ’94 that right? suspect; is (J.A. motion).) (ruling suppression at 501 No, I I said in think that. inference, I don’t said rejection A: judge’s trial of the The my brought to is when was April Gray possessed in gun late the that because might have information that likely attention reasonably March it was that he had Gray may October, informa- concerning, Mr. have by in used it was informed concerning investigation. this background knowledge tion of facts about community in which he lives and Baltimore (Id. 186.) was adamant at practices. Supreme recog- The Court has point: this about trial the facts judge nized that á views |Y]ou developed Mr. suspicions about Q: through knowledge a lens of of the communi- ’94; April of correct? Gray in Ornelas, at-, ty, at see U.S. S.Ct. A: Yes. (“The facts, rarely background though in rela- Q: right All that was [sic]. And explicit subject findings, of inform the tionship— . facts.”), judge’s assessment of the historical explained has to these “infer- minute, minute, and us a a A: Wait wait wait deference,” ences ... deserve id. re- No, “[A] again, Repeat no. minute. to viewing court should take care both review please? only findings of historical fact for clear error Gray’s iden- Q: Okay. You learned of Mr. weight give to due to inferences drawn might who have informa- tity as someone by judges facts and local from resident those April of ’94? tion enforcement officers.” Id. law Yes, is correct. A: obeying Supreme Instead of Court’s (Id. 138.) at directive, merely repeats banc the en supported other “facts” it believes 2. cause, and asserts that the “combi- “fact” relied the en banc upon The next greater a far nation of information raises opinion About five is the ballistics evidence. than that probability of involvement murder, Gray arrested months after mere possession from his of hand- derived handgun of a that ballistics possession earlier in a crime.” gun that had been used during the was fired tests demonstrated Majority op. to create some- at 771. order However, there was no evidence murder. however, nothing, the en banc thing out of how when or had obtained suggesting forced to recharacterize opinion is further gun. The district court found that: lead, spin wiretap the facts. The temporal nexus between the October only that named David suggested someone of the shooting and March 8th seizure the mur- might have useful information about sufficient, simply Mr. is gun from der, as “information from is now described Court, support judgment in the this to involved wiretaps that it was who was Mr. inference that contin- Majority op. at 771. murder.” Waller’s handgun peri- of that for a possession uous opinion the en banc characterizes And exceeding six when it was od months2 array photo of a selection uncertain results 8,1994. from him March seized information,” a as “additional corroborative no elosér to the truth. Id. claim us, simply world all The real tells newspaper you to do is have read 3. know, unfortu- every day handguns', to upon by the en banc change rapidly, partic- hands The third “fact” relied nately, quite probable cause is the city. They change opinion inner to establish ularly photo array The two surviv- burglaries, because “identification.” hands because slightly 2. arrest. there were less than five months March In fact 19, 1993, shooting and the the October between ing. shooting victims of the shown a together good were these three clues was a first photo array, photograph up step,3 which included officers should have followed Gray, try identify investigation. and were asked their their hunches with Be- more victims, prob- attackers. Antoine Lit- those not amount One hunches did tle, cause, identify anyone array. illegal. could not from the able warrantless arrest was Ward, other, Tracy “Arresting person suspicion, at it “looked like arrest- [the array] reluctantly person investigation, yeah, guy ing foreign said (cross (J.A. acceptable system” resembles the at ex- our and is not guy.” behavior. at Sydnor).) Papachristou, amination of Detective “Resem- U.S. actually

bled” was the term used Ward. (Id. 230-31.) Sydnor at Detective did not Supreme required Court “has the positive believe that was a this identification. probable existence of cause be a decided (Id. 228.) fact, at In he used the word magistrate neutral and detached whenever “reluctantly” distinguish to it from more 103, possible.” Pugh, Gerstein v. 420 U.S. certain identification: (1975). 112, 854, 862, L.Ed.2d 54 Q: say reluctantly. you You What do exigent Here there were no circumstances by reluctantly? mean requiring a warrantless arrest. There was Well, A: people you’ll give there’s some suggestion magistrates no that all were un photo card, person, the that’s the that’s the ample police opportunity available. The person. He do that. didn’t He looked and apply judicial for a warrant from a officer. eye, he again looking was—look in his was police the When officers decided not to seek Gray’s at photo, yeah, and said that resem- warrant, [Gray], go get bring but “to him guy.

bles the in, him, say,” interview see what he had to (J.A. (direct at 304 examination of Agent (Id.) selection, photo- After .this reluctant Sheehy)), they rights guaranteed violated his graph Little, again shown to but he still Fourth the and Fourteenth Amendments. (J.A. (direct Gray. could not identify at 116 police the probable Because not have did Sydnor).) examination of Detective Gray cause believe had been involved properly The district court characterized crime, purpose his arrest for the of inter these an “exceedingly events as tentative rogation was See unlawful. Davis v. Missis (J.A. sup- identification.” at (ruling 721, 726-27, 1394, sippi, 394 U.S. 89 S.Ct. motion).) pression agree I that the identifi- 1397-98, (1969). 22 L.Ed.2d 676 In re this absolutely proba- cation nothing “adds to the gard agree I with judge’s the district conclu However, equation.” ble cause Id. the en sion. opinion banc exalts this identification level of “additional corroborative informa- II.

tion,” with combining the other “facts” to support probable op. Majority cause. at 771. Having erroneously probable found cause arrest, opinion for the the en banc not does question—whether even address the next police began despite officers this case with confession admissible the unlawful speculation guesswork vague mere about arrest because the taint of the arrest had in wiretapped They hints dissipated by time confessed. conversation.. gathered evidence, point some ballistics but its That is the on which the district court timing its To However, undermined usefulness. to admit relied the confession. legal subject added an so as identification tentative is a determination to de novo practically be Although piecing worthless. I review. believe that the confession is inad- least, "never, general, police 3. At looking [Gray],” work tena- never went for him de- cious, although good majority spite supposed not as as the there belief that (J.A. majority seems to think. The claims to arrest for murder. at 262 "[ajfter police (redirect Gray only looking found Sydnor).) him examination of Detective fact, unsuccessfully op. Majority judge for weeks.” at 768. appar- district was baffled at this However, (Id. 260-62.) duty. testified he at ent dereliction of arrest, taint was sufficient- tion of unlawful the confession because the missible 600-04, suppressed. must be Id. at 95 S.Ct. dissipated. ly prosecution 2260-62. The bears bur- at illegal an is the fruit of confession When demonstrating that the den of confession is arrest, exclusionary prevents the rule Id. admissible. 95 S.Ct. at 2262. introducing it from into evidence prosecution held, properly theAs district court the causal intervening “un events break less requirement threshold confession meets the illegal and the between the arrest connection of voluntariness. He confessed after the offi- so that the confession is sufficient confession explained rights cers his Miranda and after purge primary ly act of free will to an knowingly intelligently waived those Alabama, Taylor v. 457 U.S. taint.” rights. Although some officers talked 2664, 2667, 78 L.Ed.2d 314 102 S.Ct. warnings before the Miranda (1982) (internal omitted); see also quotation administered, found, were the district court 217-18, York, Dunaway v. New matter, they merely a factual en- 2248, 2259-60, 60 L.Ed.2d 99 S.Ct. gaged in small and did not talk discuss Illinois, (1979); Brown v. U.S. Also, murder. the district court ex- Waller (1975). 2254, 2261, 45 L.Ed.2d 416 all made cluded statements before taint Although question whether the warnings. the waived Miranda purged turns on the facts has been individual case, Supreme Court has estab the was given of each the Because confession volun analytical guide tarily, framework to I move on examine lished an to the factors set in making See forth Brown. This examination reveals courts that determination. 603-04, Brown, by the was obtained exploita 422 95 at 2261- confession U.S. at S.Ct. First, matter, illegal tion of the arrest. the confes in order to be 62. As threshold admissible, temporal proximity made voluntary sion was in close the confession must be arrest, Amendment, coming the less than three hours after meaning the of the Fifth within See, e.g., Taylor, 457 is, itself, arrested. voluntariness insufficient but 691, (excluding 102 at U.S. at S.Ct. 2667-68 illegal the an See attenuate taint of arrest. 2666-67; illegal confession made six hours after ar 690, 102 Taylor, 457 at S.Ct. at U.S. rest); Wong Sun v. United 371 2259; 217, Dunaway, 442 99 at S.Ct. at U.S. cf. 407, 419, 9 L.Ed.2d U.S. Brown, 604, 422 95 2262. at S.Ct. at U.S. (1963) (admitting 441 confession unsolicited may a con warnings Miranda indicate that days illegal voluntarily made several after voluntary purpose for the fession is ' ended). custody Amendment, warnings Fifth but such do ‘ illegal an See remove the taint of arrest. Next, intervening any signifi no events of 2259; Dunaway, 442 99 at U.S. at S.Ct. cance broke the causal connection between Brown, 602-03, 422 95 2261- at at U.S. S.Ct. and the arrest the confession. Before confession, made the he not released illegal custody. (finding id. release from See voluntary, If the next the confession custody attenuating an interven from be step deter- which must be addressed is to circumstance). ing Nor did consult with whether causal between mine the connection I.N.S., Carnejo-Molina v. 649 counsel. See broken, the arrest and the confession was Cir.1981) (5th (finding 1149 con F.2d paying particular attention to factors set the attenuating an sultation with to be counsel temporal proximity in “the of forth Brown: circumstance). Instead, intervening he was confession, presence arrest and the the the brought police station, in simply to the circumstances, and, intervening particularly, rights,4 interrogated. of his formed mis- purpose flagrancy the official Brown, 603-04, 95 in Finally, investigators’ conduct.” U.S. at misconduct indistinguishable at If indicate is the mis- S.Ct. 2261-62. these factors this case from Dunaway In exploita- Taylor. issue the confession was conduct at in obtained above, Taylor, explained giving at 102 S.Ct. at 2667-68. 4. As of Miranda See U.S. warnings significant intervening is not a event. cases, case, Taylor, police this those “the effect text. 457 U.S. at S.Ct. at investigatory proba uated an arrest without 2668-69. transported ... involuntarily ble cause Because all three of Brown factors petitioner to interrogation the station weigh against government, the causal hope something up.” would turn illegal connection between arrest and the 693, 102 Taylor, 457 at S.Ct. at 2668-69. U.S. sufficiently confession was not attenuated to investigatory purposes made

Arrests permit the admission of the confession. probable precisely type without are cause Taylor, the Court observed: “This ease is a police prohibited by misconduct Brown replica Dunaway. virtual of both Brown and Dunaway, progeny. and its See 442 U.S. at probable Petitioner was arrested without 215, 99 2258; Brown, at at S.Ct. U.S. something hope would turn 605, 95 at S.Ct. 2262-63. up, shortly and he confessed thereafter with- any meaningful intervening out event.” 457 attempts distinguish 690-91, at U.S. 2666-68. The Supreme precedent from case Court same true of case. grounds: police employ three did not methods, interrogation coercive Gray’s so- III. phistication likely more makes it that his will, an confession was act of free and the reasons, For foregoing respectfully I police good faith believed dissent. Gray. cause to detain None facts, these whether separately considered cumulatively,

or demonstrate a break causal connection between arrest and Gray’s sophistication the confession. interrogation absence of meth- coercive conclusion, merely support ods I already reached, have the confession voluntarily. was made As previously stat- The MARYLAND CASUALTY COMPA- ed, although is a voluntariness threshold re- NY, Subrogee Gitelson; K. of Eileen quirement admissibility, it is in- itself Gitelson; Eileen K. Selma Investment sufficient to show a break the causal Corporation, Plaintiffs-Appellees, connection between arrest and the con- 219, Dunaway, fession. 442 U.S. at THERM-O-DISC, INCORPORATED, put Tay- S.Ct. at 2260. As the Court it in lor, Defendant-Appellant, police fact physically “[t]he did not petitioner, abuse or that the confession may ‘voluntary’ obtained have pur- Whirlpool

poses Amendment, Corporation; Fifth not does Emerson Electric illegality Company, cure the of the initial Defendants. arrest.” U.S. at 2668. S.Ct. at No. 96-1192. explain, I does not and do United Appeals, States Court of explanation, good see an how officers’ Fourth Circuit. interrupts

faith the causal connection be- 8,May illegal Argued tween the arrest the confession. 1997. It subjec- is well established that officers’ Decided Feb. tive-state of mind does not affect whether an Ohio, arrest lawful. Beck v. 223, 228-29, L.Ed.2d

(1964). addition, Supreme Court has

expressly adopt good declined to faith ex-

ception exclusionary to the rule in con-

Case Details

Case Name: United States v. David Furtado Gray

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 25, 1998

Citation: 137 F.3d 765

Docket Number: 96-4617

Court Abbreviation: 4th Cir.