UNITED STATES of America, Plaintiff-Appellee, v. James C. McWHORTER, Defendant-Appellant.
Nos. 10-5939, 11-6228.
United States Court of Appeals, Sixth Circuit.
Feb. 20, 2013.
510 Fed. Appx. 511
Before: SILER, COLE, and SUTTON, Circuit Judges.
I.
In 2006, the police department in Sparta, Tennessee began investigating a series of counterfeit checks being passed at local businesses. Officer Allen Selby went to one such business, Floyd‘s Hometown Food Center (“Floyd‘s“), and interviewed a store clerk who had accepted a counterfeit check. The clerk gave Selby a description of the person who had passed the check. Selby returned to the store several days later with a photo array, and the clerk identified McWhorter as the person who had passed the counterfeit check.
Thereafter, Selby went to a local judicial commissioner to obtain an arrest warrant. Selby purposefully withheld the name of the clerk from the commissioner because the clerk was a juvenile at the time. The commissioner typed the affidavit and warrant while Selby recited the facts from his report. Selby reviewed the affidavit аnd signed it, but did not read it word for word. The affidavit contained a misstatement. Specifically, it stated: “Officer Selby presented D.L. photo‘s to Floyd‘s Home Town Foods, Franky Floyd, who did I.D. the man in the picture as James C. McWhorter.” Franky Floyd is the wife of one of the two owners of Floyd‘s, but she was never interviewed by Selby and she never identified McWhorter. However, Selby did interview Debbie Floyd, the wife of the other owner of Floyd‘s. Selby confused the two names when reciting the facts to the commissioner. He did not tell the commissioner that Franky Floyd identified McWhorter, but rather that “the clerk” had done so.
The Metropolitan Nashville Police Department (“Metro“), which had been investigаting a counterfeit check cashing scheme in and around Nashville involving several suspects, including McWhorter, learned about the active arrest warrant in White County, TN. McWhorter was arrested and interviewed by Metro Detective Mike Park at the Criminal Justice Center (“CJC“) on November 8, 2006. Park read McWhorter his Miranda rights and McWhorter signed a Miranda waiver form.
Later, Selby and Special Agent Randy Crain read McWhorter his Miranda rights, which McWhorter indicated he understood and waived. After some initial questioning by Selby and Crain, McWhorter began asking about assurances for his wife, who had also been arrested. The officers made no assurances or promises and repeatedly told McWhorter that he would need to speak to the district attorney regarding any promises or assurances in his wife‘s case. McWhorter then asked to speak to the district attorney. The officers obliged his request and made a phone call to Assistant District Attorney Doug Crawford. McWhorter requested favorable treatment for his wife in consideration for his cooperation with the investigation, and while Crawford provided no assurances or guarantees, he indicated that the authorities would not be interested in his wife if McWhorter was in fact responsible for the crimes in question. Crawford did not agree to put anything in writing.
McWhorter insists that an agreemеnt was made whereby his wife would be released from jail if he fully cooperated with
After the phone call, McWhorter requested to speak with his wife who was being held nearby at the Davidson County Sheriff‘s Department. McWhorter was taken to the Sheriff‘s Department and spoke with his wife for approximately fifteen minutes. On the walk back to the CJC, McWhorter and Park had a short, but heated, argument where Park responded tо disparaging remarks that McWhorter had made earlier about Metro police officers. McWhorter ultimately ended the argument by stating that he did not want to talk to Park any further.
McWhorter and the officers re-entered the CJC, where Selby and Crain joined McWhorter in one of the interview rooms. Prior to McWhorter‘s cooperation and inculpatory statements, he again sought assurances regarding his wife‘s case. McWhorter then made inculpatory statements and consented to a search of his home and computers.
Officers searched McWhorter‘s home that evening and seized hundreds of fake IDs, fake checks, computers, printers, аnd other evidence. McWhorter was transported to the White County jail the next morning (November 9) where he was able to determine that his wife was still in jail. Selby attempted to question McWhorter that morning, but McWhorter invoked his right to counsel and declared that he would not talk until his wife was freed.
In March 2007, Special Agent Donna Clark of the Tennessee Department of Corrections (“TDOC“) interviewed McWhorter at the Brushy Mountain Correctional Complex in Petros, TN, where McWhorter was being held for parole violations. Clark was investigating counterfeited TDOC checks that had been cashed and the investigation led her to McWhorter. At the time of the interview, McWhorter hаd been facing criminal charges, with assigned counsel, in at least Putnam and Warren counties in Tennessee. The charges included criminal simulation, forgery, and theft. Clark provided McWhorter with Miranda warnings and he waived those rights in writing. McWhorter denied any involvement with the counterfeit TDOC checks.
In May 2007, Special Agent Nathan Landkammer of the United States Secret Service, along with Crain, interviewed McWhorter at the Riverbend Maximum Security Complex in Nashville, TN, where McWhorter was being held at the time. Landkammer had been contacted by Crain and was investigating federal offenses involving counterfeit identification documents, identity theft, and conspiracy. Landkammer prоvided McWhorter with Miranda warnings and he waived those rights in writing. During the interview, Landkammer became aware that McWhorter was currently facing state charges. After determining what offenses the state charges alleged, Landkammer expressed concern about discussing the state charges without McWhorter‘s attorney present and emphasized that he only wanted to discuss the federal offenses that he was investigating. McWhorter then made inculpatory statements to Landkammer regarding the federal offenses.
McWhorter was indicted by a federal grand jury in August 2007. He filed a motion to suppress the interviews he gave on November 8, 2006, the evidence seized from his home, and the interviews that he gave to Clark and Landkammer in 2007. He also challenged the validity of his ar-
II.
McWhorter hаs appealed five distinct rulings by the district court and raised nine separate issues on appeal. He first challenges the district court‘s finding that the arrest warrant was valid. He argues that there was a material misrepresentation in his arrest warrant that was “at a minimum reckless disregard and perhaps intentional.” He contends that without the false misrepresentation, the arrest warrant lacks probable cause, and he is therefore due relief under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
McWhorter‘s claim fails for two reasons. First, regardless of any defects in the arrest warrant, the arrest was valid because it was supported by probable cause. And second, McWhorter did not makе a substantial preliminary showing under Franks.
The district court found that there was probable cause for McWhorter‘s arrest. We agree and do not find the district court‘s factual findings to be clearly erroneous. A clerk at Floyd‘s identified McWhorter as having passed the fraudulent check. This constitutes probable cause for McWhorter‘s arrest and “a warrant is not required to effect a public arrest so long as the officers possess probable cause.” United States v. Calandrella, 605 F.2d 236, 246 (6th Cir. 1979). Consequently, “even where an arrest warrant is found to be defective, the simple existence of probable cause will support the officer‘s action.” Id. Importantly, the Metro officers who arrested McWhorter relied in good faith on the warrant procured by Selby. Therefore, because the judicial commissioner was responsible for the defect in the warrant, the good faith exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), applies. See Arizona v. Evans, 514 U.S. 1, 14-16, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).
Second, McWhorter was not entitled to a Franks hearing because he failed to make a substantial preliminary showing that the misstatement in the arrest warrant was made knowingly, intentionally, or with reckless disregard. Franks, 438 U.S. at 155-56, 98 S.Ct. 2674. The district court found that Selby did not communicate the false statement to the judicial commissioner who typed the warrant affidavit, but that the false statement was created through inadvertence on the part of the commissioner and poоr proofreading on Selby‘s part. This finding is not clearly erroneous. McWhorter does not advance a credible argument that Selby intentionally told the commissioner that Franky Floyd identified him. Therefore, McWhorter‘s argument fails and further analysis under Franks is unnecessary.
III.
McWhorter claims that he invoked his right to remain silent on November 8, 2006 prior to making inculpatory statements, and that his right to silence was not scrupulously honored. Alternatively, he argues that his inculpatory statements were
The district court held two different hearings on these particular issues and denied McWhorter‘s motion to suppress and motion to reconsider the motion to suppress. In reviewing a district court ruling on a motion to suppress, we apply the clearly erroneous standard to findings of fact and de novo review for conclusions of law. United States v. Bradshaw, 102 F.3d 204, 209 (6th Cir. 1996).
A.
McWhorter first argues that the statements he made to Selby and Crain on November 8, 2006 should have been suppressed at trial because the officers did not scrupulously honor his right to remain silent. McWhorter supports this assertion by arguing that he unambiguously invoked his right to remain silent when he told Park that he did not want to talk to him any more on the walk back to the CJC after McWhorter had spoken with his wife at the Sheriff‘s Department.
The district court found that McWhorter told Park “I don‘t want to talk to you anymore” after having a short, but heated, argument with Park while walking back to the CJC. The argument centered around Park‘s advice regarding disparaging comments McWhorter had previously made about Metro officers. Park understood McWhorter‘s statement to be directed at him and to mean that McWhorter did not want to hear any more advice from Park.
The district court found that McWhorter was no longer angry and returned to being calm and cooperativе after thirty seconds or less. When McWhorter and the officers returned to the interview room in the CJC, McWhorter told Selby and Crain “I‘ll tell you about Sparta if you agree to do what you said you were going to do.” McWhorter then made inculpatory statements over the next one to two hours. The district court concluded that McWhorter‘s statement was ambiguous when placed in context and that it was not an unequivocal assertion of his right to remain silent.
An accused who wants to invoke his right to remain silent must do so unambiguously. Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 2259-60, 176 L.Ed.2d 1098 (2010). Therefore, for McWhorter to have asserted his right to remain silent, he must have unambiguously and unequivocally invoked his right to remain silent. McWhorter does nоt argue the factual findings of the district court. Instead, he argues that the district court‘s conclusion of law that McWhorter‘s statement was not an unambiguous assertion of his right to remain silent was incorrect. Upon de novo review, we conclude that McWhorter‘s statement to Park was not an unambiguous assertion of his right to remain silent.
From the unchallenged facts, the context makes it clear that McWhorter specifically directed his statement only to Park and that the statement had nothing to do with McWhorter‘s right to remain silent, but instead was a response indicating that McWhorter did not want Park to further lecture him on his statements about the Metro police forcе. The facts contradict McWhorter‘s assertion that he wished to remain silent from that point forward. Thus, his argument fails.
B.
McWhorter alternatively argues that his inculpatory statements on November 8,
“In determining the voluntariness of a confession, a reviewing court will not disturb the trial court‘s findings concerning specific events surrounding the confession unless clear error appears on the record.” United States v. Johnson, 351 F.3d 254, 260 (6th Cir. 2003) (quoting United States v. Wrice, 954 F.2d 406, 410-11 (6th Cir. 1992)). We have established three requirements to find a confession involuntary due to police coercion: (1) the police activity must be objectively coercive; (2) the coercion must be sufficient to overbear the defendant‘s will; and (3) the alleged police misconduct must be the crucial motivating factor in the defendant‘s decision to offer the statement. United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999). Additiоnally, “promises of leniency may be coercive if they are broken or illusory.” Johnson, 351 F.3d at 262. In determining whether a confession was involuntary, the court looks to the totality of the circumstances concerning whether a defendant‘s will was overborne. Mahan, 190 F.3d at 422.
Here, the issue of voluntariness turns on the factual determination by the district court that McWhorter “was not promised that his wife would not be charged, that she would be serve no jail time, or that she would be immediately released from jail.” Therefore, in order to rule in favor of McWhorter on the issue of voluntariness, we must conclude that this finding is clearly erroneous. McWhorter‘s argument fails under this standard.
Although the interrogation trаnscript makes it clear that McWhorter was most likely promised something regarding his wife, and the promise was supposed to be put in writing, it is not clear exactly what it was that he was promised. Prior to McWhorter‘s cooperation and inculpatory statements, he sought assurances regarding his wife‘s case, stating “I‘m backing mine up immediately,” to which Selby responded “[w]ell, I‘m backing mine up. I told you I‘d get the thing in writing.” Selby further stated “I give you my word Chris, I mean, that‘s all I can do tonight. What good is it gonna do me if she sits in jail or prison?” The statements by Selby make it clear that he made a promise to McWhorter, that the promise had to do with McWhorter‘s wife, and that Selby was going to get the рromise in writing. However, the exact parameters of the promise cannot be ascertained from the interrogation transcript.
The district court found that Selby only promised McWhorter that if he cooperated, his cooperation would be made known to the prosecutor and that if he was responsible for all the criminal activity, the state would not be interested in prosecuting his wife. It found McWhorter‘s testimony here, and repeatedly throughout the suppression hearing, to lack credibility. The district court‘s finding is not clearly erroneous. Therefore, McWhorter‘s argument fails.
C.
Lastly, McWhorter argues that because he invoked his Miranda right to counsel on November 9, 2006 in the White County jail, under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Clark and Landkammer violated his Fifth Amendment right to counsel when they interviewed him without the presence of his assigned counsel in 2007.
An accused who has “expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880. Moreover, police may not question a defendant about any unrelated crimes after invocation of the right to counsel, even if such crimes are the subject of a separate investigation. Arizona v. Roberson, 486 U.S. 675, 682, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). Further, where a defendant has requested and been provided counsel, police may not reinitiate an interrogation without the presence of counsel. Minnick v. Mississippi, 498 U.S. 146, 152-53, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990).
However, in Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1222-23, 175 L.Ed.2d 1045 (2010), the Court held that after a 14-day break in custody the police may ask an accused to waive his Miranda right to counsel even though he has previously invoked his Miranda right to counsel while in custody. Id. at 1224-25. Additionally, lawful imprisonment imposed upon the conviction of a crime does not create the coercive pressures identified in Miranda, and therefore it does not constitute custody for Miranda purposes. Id.
The circumstances of McWhorter‘s invocation of his Miranda right to counsel and the subsequent interviews by Clark and Landkammer do not implicаte the same concerns of the defendants in Edwards and its progeny. The protections in Edwards and its progeny were designed to “prevent police from badgering a defendant into waving his previously asserted Miranda rights.” McNeil v. Wisconsin, 501 U.S. 171, 177, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (quoting Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990)). Importantly, the defendants in Edwards, Roberson, and Minnick were all re-interrogated within three days after they had invoked their Miranda right to counsel. Edwards, 451 U.S. at 478-79, 101 S.Ct. 1880; Roberson, 486 U.S. at 678, 108 S.Ct. 2093; and Minnick, 498 U.S. at 148-49, 111 S.Ct. 486.
The facts here more closely resemble the facts from Shatzer. In Shatzer, the defendant, who was incarcerated on a prior conviction, invoked his Miranda right to counsel when questioned about a new allegation. Id. at 1217. The interview was terminated and Shatzer was released back into the general prison population. Id. Three years later, another detective reopened the case and attempted to question Shatzer, who was still incarсerated, about the same allegation for which he previously invoked his right to counsel. Id. at 1217-18. However, this time Shatzer waived his Miranda rights and gave inculpatory statements. Id. at 1218. The Court held the statements were admissible against Shatzer. Id. at 1227.
Here, McWhorter invoked his Miranda right to counsel on November 9, 2006, while he was in custody at the White County jail for his arrest on the White County warrant. Clark interviewed McWhorter on March 23, 2007, more than four months after he invoked his right to counsel. More importantly, this was more than three months after McWhorter was transferred from the White County jail, where he had been held for the new charges, to Brushy Mountain Correctional Complex, where he was now being held for violating the terms of his parole from a
Hence, there was no presumption of involuntariness under Edwards when McWhorter was questioned by Clark and Landkammer in March and May, 2007, respectively.1 Because McWhorter was given Miranda warnings and because he waived his Miranda rights on both occasions, all statements from those interviews were admissible. Therefore, we reject McWhorter‘s argument that his statements to Clark and Landkammer were inadmissible under Edwards.
IV.
The third order challenged on appeal is the district court‘s denial of McWhorter‘s motion to acquit based on theories of conspiracy or aiding or abetting in count five of the indictment. McWhorter argues that the government‘s witness, Chad Vincent, was not credible and that there was not enough evidence to support a conviction on count five. We review a district court‘s refusal to grant a motion to acquit de novo. United States v. Keeton, 101 F.3d 48, 52 (6th Cir. 1996).
Count five of the indictment was a charge of aggravated identity theft under
McWhorter‘s argument depends on discrediting Vincent‘s testimony as unreliable. However, evaluations of a witness‘s credibility are made by the jury and not by the court. United States v. Graham, 622 F.3d 445, 448-49 (6th Cir. 2010). In light of Vincent‘s testimony and the testimony in general throughout the trial regarding the conspiracy, we agree with the district court‘s denial of McWhorter‘s motion to acquit on count five.
V.
Next, McWhorter asserts that he is entitled to a new trial. His motion for a new trial claimed there was newly discovered evidence that was kept from him by the prosecution. The district court denied the motion because of a lack of any evidence that would qualify for disclosure under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). McWhorter reasserts his argument that the government withheld material exculpatory evidence under Brady.
Under
McWhorter‘s argument centers around a police report filed by Selby after his initial visit to Floyd‘s following its report of the passing of a fraudulent check. In his report, Selby stated that “the incident was also videoed [sic] taped.” McWhorter initially raised this issue during trial and was told that the government did not possess and was not aware of any such video. After the trial concluded, McWhorter‘s counsel visited Floyd‘s, where he noticed that Floyd‘s had the equipment and ability to conduct video surveillance. Additionally, McWhorter claims that still рhotos from the incident at Floyd‘s indicate that a video of the incident exists. McWhorter argues that he was not the person who passed the check at Floyd‘s and that a video would be material and exculpatory.
However, McWhorter acknowledges that the government has consistently denied that it has ever possessed a video of the incident and that it has consistently denied that such video ever existed. The government asserts that Selby‘s reference to a video tape of the incident was an inadvertent error, noting that on the same day that he visited Floyd‘s, Selby had visited another defrauded store that did have video surveillance cаpabilities.
McWhorter‘s argument fails for two reasons. First, he cannot establish that a video of the incident exists. Second, all other evidence mentioned by McWhorter was either available at trial or could have been discovered before or during trial with due diligence. His argument concerning the possible existence of the video tape is based on Selby‘s police report and the still photos from the incident at Floyd‘s, both of which were produced prior to trial. McWhorter‘s assertion—that Floyd‘s had the capability to conduct video surveillance in 2010, more than four years after the incident—is immaterial and irrelevant to the question of whether there is a video of the incident that occurred in 2006. We affirm the district court‘s denial of McWhorter‘s motion for a new trial.
VI.
Lastly, McWhorter makes three separate arguments regarding the application of the sentencing guidelines. First, that the enhancement for an authentication feature under
We review sentences for prоcedural and substantive reasonableness under a deferential abuse-of-discretion standard. United States v. Novales, 589 F.3d 310, 314 (6th Cir. 2009). However, although the application of the sentencing guidelines is one of the factors listed in
A.
McWhorter argues that the enhancement for the production, possession or use of any authentication feature under
First, he argues that the application of this enhancement constitutes impermissible double counting because the conduct in question—producing, possessing, and using authentication features—has already been factored into his sentence in the base offense level. This argument is without merit.
McWhorter notes that he was convicted of producing false identification documents under
Second, McWhorter argues that because the authentication features used in the false driver‘s licenses that he produced were “false” or “fake,” they do not meet the definition of “authentication feature” under the enhancement. Application Note 9(A) in the commentary of
McWhorter notes that
McWhorter‘s argument fails for two reasons. First, although the definition of an authentication feature under
Second, McWhorter‘s reading of § 1028 eliminates
Therefore, McWhorter‘s reading of the
B.
McWhorter next argues that the addition of one criminal history point for his 2000 Missouri conviction for passing a bad check, for which he was sentenced to one year of probation, was erroneous because it did not meet the rеquirements under
Section
Here, the Presentence Investigation Report (“PSR“) states that court records related to McWhorter‘s Missouri conviction show that McWhorter, “with purpose to defraud, passed a $2,750 check, drawn upon Farley State Bank in Parkville, Missоuri, payable to KC Autoplex, knowing that such check would not be paid.” The district court added one criminal history point under
The probation office determined that McWhorter did more than pass an insufficient check. The PSR specifically states that McWhorter committed the crime with the intent to defraud and the knowledge that the check was not payable. This prior offense is similar to the charged conduct in count one and the overall conspiracy in general. Count one of the indictment сharged McWhorter with making and pos-
C.
Lastly, McWhorter argues that the district court did not take into account certain proposed findings of the Sentencing Commission and the pending amendment to remove the recency adjustment of
First, pursuant to
Second, assuming the district court had any obligation or requirement to consider the aforementioned findings and amendment, it did indeed consider McWhorter‘s objection. Accordingly, McWhorter‘s argument fails.
AFFIRMED.