UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4654
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES HAMPTON WILLIAMS, II,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-02-548)
Argued: March 15, 2007 Decided: May 16, 2007
Before WILLIAMS, MICHAEL, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
ARGUED: Leland Bland Greeley, Rock Hill, South Carolina, for
Appellant. Jane Barrett Taylor, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee. ON BRIEF: Reginald I. Lloyd, United States Attorney,
Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Hampton Williams II (Williams) was convicted in a
jury trial on several counts related to his participation in a
conspiracy to distribute cocaine and cocaine base. The district
court sentenced Williams to life in prison. Williams appeals both
his conviction and his sentence. We conclude that the district
court improperly denied Williams’s motion to suppress certain self-
incriminating statements made in the absence of Miranda warnings.
Because the error was harmless, however, we affirm Williams’s
conviction. No similar Fifth Amendment violation tainted the
authentication of audio recordings featuring Williams’s voice, and
the district court properly admitted the recordings into evidence.
In light of the district court’s application of the sentencing
guidelines in a mandatory fashion, we vacate Williams’s sentence
and remand for resentencing under United States v. Booker, 543 U.S.
220 (2005).
I.
The events leading to Williams’s prosecution began in
2001. As part of an ongoing investigation, an undercover agent,
James Abraham, met Jonathan Stroman for the purpose of obtaining
significant quantities of cocaine. Later, Stroman and Abraham
arranged to buy one-half kilogram of cocaine from Hubert Hampton
“Corey” Williams (Corey), a large-scale cocaine dealer and
Williams’s brother. On June 1, 2001, immediately prior to the
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transaction, Corey advised Stroman and Abraham that Williams would
deliver the cocaine. Williams met Abraham and Stroman in the
parking lot of a South Carolina Waffle House and gave them one-half
kilogram of cocaine in exchange for $12,500. In late June Abraham
and Stroman bought an additional kilogram of cocaine from Corey.
The government subsequently sought and obtained an order
authorizing the interception of communications occurring over
Corey’s cell phone. Corey disposed of the tapped phone on August
22, 2001. On August 31 the government sought and obtained an order
for a wiretap on Corey’s replacement cell phone, but that phone was
also quickly abandoned. On September 5, 2001, both wiretaps ended.
On September 20, 2001, Abraham and Stroman again met with Corey to
buy a kilogram of cocaine. After a few months’ hiatus, the
investigation resumed in March 2002. The government obtained an
order for a wiretap on a third cell phone belonging to Corey.
During each of the wiretaps agents intercepted calls
between Williams and Corey. In May 2002 the agents overheard
conversations about Corey’s planned trip to Atlanta to meet with
Williams. Corey was to exchange $59,000 for three kilograms of
cocaine. Later, agents overheard that Corey had delivered the
money and was on his way back from Atlanta. The agents intercepted
him near Columbia, South Carolina, and transported him to a nearby
FBI office where he was offered the opportunity to cooperate.
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Corey consulted counsel and agreed to cooperate. His cooperation
included an agreement to record his conversations.
Corey subsequently placed calls to Williams to inquire
about the three kilograms of cocaine that Williams was supposed to
deliver to him. Williams later called Corey to tell him that he
had received the cocaine from their uncle, John Williams. When
Williams delivered the cocaine to Corey, agents observed the
transaction.
On June 24, 2002, Williams arrived in Columbia to pick up
a motorcycle that Corey had bought for him. FBI Agent Michael
Stansbury and several other officers observed Williams in his
vehicle and stopped him. Agent Stansbury handcuffed Williams, but
told him he was not under arrest. The agents placed Williams in a
transport belt and took him to a nearby FBI office. At the office
the agents again told him he was not under arrest. They proceeded
to outline the evidence they had against him and offered him the
opportunity to cooperate. At no point did the agents advise
Williams of his Miranda rights. Williams agreed to cooperate.
Although Agent Stansbury told him not to say anything at that time,
Williams volunteered information about some of the things he could
and could not do to help with the investigation. When Williams
said he could not get in touch with his uncle John, the leader of
the conspiracy, Agent Stansbury asked clarifying questions, such as
“‘Why can’t you do that. I don’t understand,’ . . . ‘How did you
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meet him then?’ . . . [or] ‘Why did you do that.’” J.A. 91-92.
Williams’s responses to these questions indicated his involvement
with his uncle and other members of the conspiracy. When Williams
finished speaking, he was permitted to leave. He subsequently fled
to Mexico where he hid until May 2003, when he was arrested for
conspiracy to distribute cocaine and crack cocaine, money
laundering, and other charges.
Before his trial began Williams moved to suppress self-
incriminating statements made during his June 2002 detention. He
claimed that the agents violated his Fifth Amendment rights by
engaging in custodial interrogation without giving him Miranda
warnings. The district court denied the motion because it found
that Williams’s statements were not the result of interrogation by
the FBI. The jury delivered a guilty verdict on all counts.
The Presentence Report (PSR) recommended a sentence of
life in prison based on the amount of cocaine involved in the
conspiracy (in excess of 150 kilograms) and enhancements for
possession of a dangerous weapon, role in the offense, and
obstruction of justice. Williams successfully objected to the
obstruction of justice enhancement. The court rejected his
objection, under Blakely v. Washington, 542 U.S. 296 (2004), that
his sentence was enhanced by facts not found by the jury. The
court sentenced Williams to life in prison, and he appeals.
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II.
In his first challenge to his conviction, Williams argues
that the district court should have suppressed the self-
incriminating statements made during the June 2002 detention
because they were procured by a violation of his Fourth Amendment
rights. Williams did not present this argument to the district
court, so we review for plain error. United States v. Olano, 507
U.S. 725, 731-32 (1993).
An officer may stop and briefly detain a person for
investigative purposes when the officer has a “reasonable
suspicion” of criminal activity. United States v. Hensley, 469
U.S. 221, 229 (1985). Further detention is permitted when
supported by probable cause. See New York v. Harris, 495 U.S. 14,
18-19 (1990). The agents in this case had accumulated sufficient
evidence of Williams’s involvement in the drug conspiracy to have
probable cause for suspecting his involvement in a drug crime.
Agents had overheard calls between Corey and Williams discussing
drug transactions, and an undercover agent had previously bought
drugs from Williams in a controlled transaction. Although the
agents opted not to arrest him, Williams’s detention was supported
by probable cause and was not overly lengthy. Thus, his detention
did not violate the Fourth Amendment, and his statements need not
be suppressed as products of an unlawful seizure.
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III.
Williams also argues that his incriminating statements
should have been suppressed because the agents failed to advise him
of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), before
engaging in custodial interrogation. We review the legal
conclusions underlying the district court’s suppression
determination de novo and its factual findings for clear error.
United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
A person subjected to custodial interrogation is entitled
to the procedural safeguards prescribed by Miranda as protection
against compulsory self-incrimination. 384 U.S. at 444.
Statements made by a defendant who has not received Miranda
warnings are inadmissible in the prosecution’s case in chief. Id.
In the absence of a formal arrest, a suspect is “in custody” for
Miranda purposes if his freedom of action is curtailed to a degree
similar to a formal arrest. United States v. Leshuk, 65 F.3d 1105,
1108 (4th Cir. 1995). The district court’s finding that Williams
was in custody was not clearly erroneous. Although Williams was
told he was not under arrest, he was also not free to leave. The
agents handcuffed him, placed him in a transport belt, took him to
FBI headquarters, and detained him for one to two hours. These
facts support a conclusion that Williams was in custody for
purposes of Miranda.
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The district court also correctly found that Williams
never received Miranda warnings while he was in custody. The
government does not make any claim to the contrary. Thus, the
central issue is whether Williams was interrogated while in
custody. Interrogation occurs when police engage in “express
questioning” or use words or actions that they “should know are
reasonably likely to elicit an incriminating response.” Rhode
Island v. Innis, 446 U.S. 291, 301-02 (1980). When Williams
arrived at FBI headquarters, the agents played several tapes of
conversations between him and Corey. The agents also told Williams
that, although he was not currently under arrest, he would
eventually be indicted. They then offered him a chance to
cooperate. Williams agreed and began to explain how he could and
could not help with the investigation of the conspiracy. Agent
Stansbury told Williams not to say anything, but, contrary to his
own instruction, he encouraged Williams to elaborate on certain
points by asking questions. When Williams said he could not
telephone his uncle, John Williams, the man authorities regarded as
the leader of the conspiracy, Agent Stansbury asked why he could
not do that and prodded Williams to explain how he was able to
arrange meetings with John Williams. Williams explained that a
woman who was John Williams’s wife or girlfriend would contact
Williams and tell him where to meet John Williams. Williams also
said that John Williams’s sister knew how to get in touch with John
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Williams. Williams’s responses to Agent Stansbury’s questions
linked him to John Williams and showed his knowledge of how
communications in the conspiracy operated. Agent Stansbury should
have known that any response to his questions would likely
implicate Williams in the drug conspiracy. His questioning thus
constituted custodial interrogation without Miranda warnings.
Williams’s statements should have been suppressed.
We conclude that the district court erred in denying
Williams’s motion to suppress. This error, however, was harmless
in light of the substantial evidence against Williams that is
unconnected to the statements. A federal constitutional error may
be declared harmless if it was harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24 (1967). We must ask
“whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.” Id.
(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963). In this
case, an average jury “would not have found the [government’s] case
significantly less persuasive had the [disputed testimony] been
excluded.” See Schneble v. Florida, 405 U.S. 427, 432 (1972).
Williams had personally engaged in drug transactions with an
undercover FBI agent, and the wiretaps on Corey’s phone picked up
many calls between Williams and Corey concerning drug transactions.
In at least one of these calls, Williams revealed his connection to
John Williams by telling Corey that he had received a three-
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kilogram shipment of cocaine from John and would deliver it to
Corey. Agents confirmed the delivery by physical observation. The
incriminating statements, which provided further evidence of a link
to John Williams and another co-conspirator, were thus unnecessary
to the conviction.
IV.
Williams contests the admissibility of the recordings of
his calls with Corey. He argues that the recordings cannot be
authenticated without the testimony of Agent Stansbury, whose
ability to identify his voice derives from a violation of his Fifth
Amendment rights. A district court’s admission of audio recordings
is reviewed for abuse of discretion. United States v. Wilson, 115
F.3d 1185, 1188 (4th Cir. 1997).
A voice in an audio recording may be identified by
opinion evidence “based upon hearing the voice at any time under
circumstances connecting it with the alleged speaker.” Fed. R.
Evid. 901(b)(5). This includes knowledge of a voice that derives
from statements made without Miranda warnings. The Fifth Amendment
does not protect the sound of a person’s voice because such
physical characteristics are not testimonial in nature. United
States v. Dionisio, 410 U.S. 1, 7 (1973). Agent Stansbury’s prior
exposure to Williams’s voice during the meeting when no Miranda
warnings were given could thus serve as a valid foundation for his
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identification of Williams’s voice in the recordings. The district
court did not abuse its discretion by admitting into evidence
properly authenticated recordings.
V.
Williams’s final argument concerns whether the sentence
imposed by the district court violated Booker. A court commits
Sixth Amendment error when, under a pre-Booker mandatory guidelines
regime, it engages in judicial factfinding resulting in a sentence
that exceeds the maximum guideline sentence authorized by the jury
verdict. United States v. Robinson, 460 F.3d 550, 558 (4th Cir.
2006). Such an error is presumed to affect a defendant’s
substantial rights unless the government demonstrates that the
court would have imposed the same sentence in the error’s absence.
Id.
The government concedes that the district court committed
Booker error by enhancing Williams’s sentence based upon facts not
found by the jury and by applying the sentencing guidelines in a
mandatory fashion. This warrants remand for resentencing in
accordance with the advisory nature of the guidelines. On remand,
the district court must calculate the guideline range (making all
appropriate factual findings) and impose a reasonable sentence
after considering other relevant factors in the guidelines and in
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18 U.S.C. § 3553(a). United States v. Hughes, 401 F.3d 540, 546
(4th Cir. 2005).
VI.
In sum, we affirm Williams’s conviction because the
failure to suppress his self-incriminating statements was harmless
and the audio recordings were properly admitted. We must, however,
vacate Williams’s sentence and remand for resentencing due to the
district court’s treatment of the sentencing guidelines as
mandatory.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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