United States v. Williams

F I L E D
United States Court of Appeals
Tenth Circuit

APR 10 1998
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-6332
v. (W.D. Oklahoma)
STEVIE JEROME WILLIAMS, (D.C. No. CR-96-152-M)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Stevie Jerome Williams appeals his convictions following a jury trial for

bank robbery, attempted bank robbery, being a felon in possession of a firearm,

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
carrying a firearm during a crime of violence, and knowingly transporting a

firearm in interstate commerce with intent to commit armed robbery. He contends

that the district court erred in finding 1) there was probable cause to arrest him, 1

and 2) his confession was voluntary. We affirm.

BACKGROUND

On August 27, 1996, Williams flagged down an Altus, Oklahoma, citizen.

He asked for directions to the Red River Federal Credit Union, stating that he

wanted to “make a loan.” R. Vol. III at 163. The citizen gave him the directions,

but became alarmed when she observed the outline of a gun in Williams’ front

pants pocket. Following their conversation, she contacted the sheriff’s office to

report her suspicion that a man carrying a gun was going to rob the credit union.

She described the man as a stocky, bald, black male weighing about 250 pounds.

Id. at 162, 167.

The Altus police department immediately dispatched Officer Stephen Sollis

to the credit union. Id. at 174-75. As he drove into the parking lot in his police

car, Sollis observed Williams approaching the credit union front door and looking

over in Sollis’ direction. Id. at 176-77. As Sollis watched Williams enter the

Although he characterizes his contention in terms of probable cause, Williams’
1

argument actually goes to the investigatory stop and detention. See discussion infra.

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building, Sollis noted that he was wearing a floppy blue fishing hat and

sunglasses, and that he fit the dispatched description—a black male about six feet

tall, weighing approximately 250 pounds. Id. Additionally, Sollis observed a

bulge in Williams’ right front pocket which was consistent with his information

that Williams was carrying a gun. Id. at 179.

Sollis then parked in the nearest space in front of the credit union. As

Sollis was getting out of his patrol car, Williams came back out of the credit

union “without any commotion or any urgency.” Appellant’s Br. at 3. Sollis

approached him and asked him what he was doing; Williams responded that he

was getting a job application. Sollis then asked if he was carrying a gun. When

Williams said no, Sollis stated that he would have to frisk him. At that point,

Williams admitted he was carrying a gun. Sollis then retrieved a .380 caliber

semiautomatic pistol from Williams’ pocket and placed him under arrest for

carrying a concealed weapon. R. Vol. III at 179-81.

That evening, two FBI agents conducted an interview with Williams.

According to Agent Manns’ testimony at the suppression hearing, when the agents

first entered the room, Williams said, “I know my rights. I have the right to an

attorney.” Id. at 6. The agents agreed and indicated that they would like to

advise him further of his rights, and they did so, following a specific Advice of

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Rights form. 2 Id. at 6-8, 83. Manns testified that Williams refused to sign the

form, but stated that he would answer certain questions. Id. at 8-9. Manns

further testified that Williams gave no reason for his refusal to sign the form, and

Manns specifically stated that, once he was fully informed of his rights, Williams

never asked for a lawyer. Id. at 8, 13. According to Manns’ testimony, after

reading the form to Williams and obtaining Williams’ response, Agent Damron

wrote the following notation on the Advice of Rights form: “Williams stated he

understood his rights and would answer certain questions. He was assured that he

could stop at any question and was free to return to his cell at any time. He stated

he would not sign anything.” Id. at 78. The form itself provided that “[i]f you

decide to answer any questions now without a lawyer present, you will still have

the right to stop answering at any time.” Id. at 8, 52. Both agents signed the

form as witnesses. Id. at 8, 77-78. The agents did not actually begin their

2
At trial, Agent Damron also testified about the encounter:

I told him that we wanted to visit with him about the circumstances of his
arrest. I explained to him that because he was in custody that it was
necessary for me to advise him of certain Constitutional rights. He
immediately said, I know what my rights are. I have a right to an attorney.
I told him that was true but there were other important rights that I wanted
to explain to him so he knew what all of his rights were so he could make a
decision as to whether or not he would talk with us.

R. Vol. III at 83.

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interrogation until after they had read Williams his rights and obtained his

agreement to answer certain questions. Id. at 9.

Although Williams had told the Altus police that his name was Earl

Williams, he told the FBI agents that his real name was Stevie Jerome Williams.

Williams also told the agents that he was in Altus looking for a job, and that the

car he was driving had been rented by his girlfriend, Kathryn Williams, who also

owned the gun which he was simply carrying for protection; he also gave the

address where they lived in Lubbock, Texas. Id. at 9-11, 79, 89, 96.

When the agents asked him if he had committed any bank robberies,

Williams said no. Id. at 12. The agents then showed him a picture taken by a

bank security camera, and they asked him if he was the person in the picture. At

first Williams became upset and refused to look at the picture, but finally he did

look at it, and then he said, no, he was not the person in the picture, although he

conceded that the person did look like him. Id. According to Manns, on two

occasions during the interview Williams became upset and stated that he did not

want to answer any more questions. Id. at 13. On each occasion, the agents told

Williams “that was his right” and he was “free to return to his cell,” and the

agents got up to leave. Id. However, according to Manns, each time that the

agents stood up, Williams would stay seated and simply volunteer something else

and continue talking, even though the agents had not asked him any further

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questions. In each instance, the information that Williams volunteered was

insignificant, and the agents felt that the interview “wasn’t going anywhere.” Id.

at 13-14. The entire interview lasted about an hour. Id. at 12, 21.

At the suppression hearing, Williams acknowledged that Agent Damron

read him his rights from the form. However, Williams disagreed with Agent

Manns’ testimony regarding his response: “I told him that I didn’t have nothing

to say to him. I preferred a lawyer to be present concerning anything that he had

to ask me.” Id. at 37. “I got upset. I beated on the table. It didn’t do no good. I

told them to return me to my cell. They disregarded it. They allowed me to sit

there. Then they begin to ask me questions concerning bank robberies.” Id. at

50-51.

In any event, Williams testified that the next morning he told one of his

jailers he wanted to talk to the FBI agents. Id. at 14, 38. The agents returned.

Again they advised Williams of his rights, and again he refused to sign the form.

In accord with his practice the day before, Agent Damron wrote the following

notation on the form: “Stated that he did not want to sign the form but wanted to

furnish information. He stated he understood his rights.” R. Vol. III at 16, 100.

According to Manns’ testimony, Williams told them he had called them

back to tell them about some illegal activity he was aware of. Id. at 16. The

agents told him that they had no authority to tell him whether any information

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could help him, but they would pass it on to the U.S. Attorney’s office. Id. at 17,

101. Manns specifically testified that they made no threats or promises. 3 Id. at

16-17.

Williams then told the agents about gambling and drug activity in Texas

and Florida. Id. at 17, 39. After he finished telling them about those activities,

the agents again discussed the bank robberies with him, id. at 17, which included

a discussion about Williams’ girlfriend. Id. at 32. Shortly after the interview

began, Williams confessed to four bank robberies. Id. at 19-20; 101-03.

At the suppression hearing, Williams admitted he had understood his rights

that were read to him from the Advice of Rights forms, and he specifically

acknowledged that he understood he could stop answering questions at any time.

Id. at 51-52, 49. Additionally, he stated, “I didn’t agree to talk to them on the

first day. The second day I agreed to talk with them.” Id. at 50. However, he

claimed that he was coerced into confessing on the second day because the FBI

agents threatened to prosecute his girlfriend and promised him lenient treatment.

Id. at 41-43, 47. According to Williams’ testimony, the agents “got to the point to

According to Damron’s testimony at trial, Williams said he was offering the
3

information, in the hope that it would help “the situation he was in.” R. Vol. III at 101.
After Williams finished relating his information, Williams asked about his girlfriend, and
the agents advised him that another agent had spoken to her. Id. at 102. Williams
indicated that she had not done anything, and the agents told him that they had to
investigate anyone who might be involved. Id. At that point, “[Williams] became very
quiet. He looked away for several seconds and then he just said, I did it.” Id. at 102-03.

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as Kathryn being a participant in the bank robbery,” and “[i]n some way” the

agents were saying “as her being an accomplice to these crimes.” Id. at 41-42.

Williams also testified that “they gave an impression that that was—uhm a

high[er] official than them if I—if I confessed to the crime, that they would be

lenient on prosecuting me for the charges that they was charging me with.” Id. at

46.

DISCUSSION

A. The Investigatory Stop

As his first claim of error, Williams contends that neither the overly general

description that was dispatched nor his actions which Sollis actually observed

were sufficient to support the investigatory stop and detention.

In reviewing the denial of a motion to suppress, we consider the totality of

the circumstances in the light most favorable to the government, and we accept

the district court’s factual findings unless clearly erroneous. United States v.

Gutierrez-Daniez, 131 F.3d 939, 940-41 (10th Cir. 1997), cert. denied, No.

97-8044, 1998 WL 86531 (U.S. March 23, 1998). However, the ultimate

determination of reasonableness under the Fourth Amendment is a question of law

which we review de novo. Id. at 941.

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 It is well-settled that “a police officer may in appropriate circumstances and

in an appropriate manner approach a person for purposes of investigating possibly

criminal behavior even though there is no probable cause to make an arrest.”

Terry v. Ohio, 392 U.S. 1, 22 (1968). Thus, “police can stop and briefly detain a

person for investigative purposes if the officer has a reasonable suspicion

supported by articulable facts that criminal activity ‘may be afoot,’ even if the

officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7 (1989).

To justify such an investigative detention, “the police officer must be able to

point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant [the particular] intrusion.” Terry,

392 U.S. at 21. Additionally, in such cases, a frisk is justified as a means of

assuring the officer’s safety. Adams v. Williams, 407 U.S. 143, 146 (1972)

(citing Terry, 392 U.S. at 30); see also Minnesota v. Dickerson, 508 U.S. 366,

373-74 (1993). In determining whether an investigational detention is reasonable,

we examine, first, whether the stop was justified at its inception, and, second,

whether the scope of the stop was reasonably related to the circumstances which

justified it originally. United States v. Toro-Pelaez, 107 F.3d 819, 824 (10th Cir.)

(citing Terry, 392 U.S. at 20), cert. denied, 118 S. Ct. 129 (1997).

In this case, we conclude that the dispatched description was sufficiently

detailed to give rise to a reasonable articulable suspicion that Williams was the

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person who had been described as carrying a gun possibly for the purpose of

robbing the credit union which Sollis observed him entering. Moreover, even if

we completely disregarded any inferences regarding Williams’ particular purpose,

we would still conclude that the stop was reasonable. That is, as the government

correctly argues, Sollis observed a bulge which accorded with his information that

Williams was armed. Therefore, at the very least, once Williams entered the

credit union, Sollis reasonably believed him to be in violation of Oklahoma law

respecting the carrying of concealed weapons. See Okla. Stat. Ann. tit. 21,

§§ 1290.4, 1290.22; 25 Okla. Op. Atty. Gen. 245 (1996) (noting that § 1290.22,

which expressly allows businesses to restrict or prohibit weapons on their

premises, constitutes a limitation upon the right to carry a concealed weapon

under the Oklahoma Self-Defense Act); R. Vol. III at 207-08.

Accordingly, we agree with the district court’s conclusion that the detention

was justified, and its scope was appropriate under the circumstances. Thereafter,

upon verifying that Williams was, in fact, carrying a concealed weapon, Sollis

had probable cause to arrest him on a weapons charge.

B. Waiver of Miranda Rights and the Confession

After hearing the testimony of Williams and the FBI agent, the district

court found that, “[w]hile defendant refused to sign the Advice of Rights forms,

defendant orally waived his rights.” Appellant’s Br., App. at 4 (citing North

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Carolina v. Butler, 441 U.S. 369, 373 (1979)). The district court further found

that “there is simply no evidence to suggest defendant was coerced into making a

confession on August 28, 1996. Under the totality of the circumstances, the

Court finds defendant’s waiver of his Miranda rights was voluntary.” Id.

Williams contends that the district court erred in concluding that he orally waived

his Fifth Amendment rights and in finding that his confession was not coerced.

Williams’ argument appears to challenge both the district court’s findings of facts

as well as its legal conclusions.

“The determination of whether a valid waiver of Fifth Amendment rights

has occurred is a question of law which we review de novo; subsidiary factual

determinations are reviewed under the clearly erroneous standard.” United States

v. Roman-Zarate, 115 F.3d 778, 782 (10th Cir. 1997). Whether a confession was

voluntary also presents a legal question which we review de novo. United States

v. Short, 947 F.2d 1445, 1449 (10th Cir. 1991). In making our determination, we

review the evidence in the light most favorable to the government, United States

v. Robertson, 19 F.3d 1318, 1321 (10th Cir. 1994), and we uphold the district

court’s factual findings unless they are clearly erroneous. United States v.

Glover, 104 F.3d 1570, 1578-79 (10th Cir. 1997).

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 1. Disputed Facts

As to any critical subsidiary factual findings, our standard of review gives

great deference to the district court who observed the witnesses. At the

suppression hearing, Williams testified that, in the first interview, he refused to

answer any questions without an attorney present, and he claims that he confessed

in the second interview because the agents threatened him and promised him

leniency. However, the agent testified that once Williams had been fully advised

of his rights, he did not request an attorney. According to the agent, Williams

agreed to answer the agents’ questions in the first interview with the

understanding that he could stop at any time, and that, in fact, Williams did stop

the questioning on two occasions, although each time he continued volunteering

information without further questioning. Additionally, the agent testified that

they made no threats or promises in either interview.

Obviously, the court believed the agent’s testimony that Williams orally

waived his rights as to both interviews, and that the agents made no promises or

threats. These are credibility findings, and, taken in the light most favorable to

the government, those findings are not clearly erroneous.

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 2. Voluntariness

Having accepted the district court’s finding that Williams did in fact orally

waive his Fifth Amendment rights and that the agents neither threatened him nor

made any promises, we now consider de novo whether that waiver and the

subsequent confession were voluntary.

“If a defendant talks to police after being advised of his right to remain

silent, the government bears the burden of proving by a preponderance of the

evidence that the waiver of the right was voluntary.” Toro-Pelaez, 107 F.3d at

825 (citing Colorado v. Connelly, 479 U.S. 157, 168 (1986)). However, “[a]n

express statement of waiver by the defendant is not required; instead, waiver can

be inferred from the defendant's actions and words.” Id. (citing North Carolina v.

Butler, 441 U.S. 369, 373 (1979)). Nonetheless, a defendant’s waiver of Fifth

Amendment rights can be effective only if the totality of the circumstances

surrounding the interrogation shows both an uncoerced choice and the requisite

level of comprehension. Moran v. Burbine, 475 U.S. 412, 421 (1986); United

States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996). Likewise, in

determining whether a confession is voluntary, we review the totality of all the

surrounding circumstances, including the characteristics of the accused and the

tactics employed by the police. Toro-Pelaez, 107 F.3d at 825-26; Glover, 104

F.3d at 1579 (noting important factors such as age, intelligence, and education of

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the defendant; length of the detention; length and nature of questioning; whether a

Miranda warning was given; and whether physical punishment was involved)

(citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

a. The Waiver

In this case, the totality of the circumstances demonstrates a voluntary

waiver of Fifth Amendments rights. 4 That is, although Williams refused to sign

the Advice of Rights forms, he admitted understanding his rights. Additionally,

that he fully appreciated the extent of those rights is demonstrated by the evidence

that, in the first interview, he actually did cut off questioning. Moreover,

although he disputed (unsuccessfully) the facts surrounding that first interview,

he readily admitted that he initiated the second interview, that the agents read him

his rights, that he fully understood those rights, and that he agreed to talk to the

agents when they had finished reading him his rights. See Edwards v. Arizona,

451 U.S. 477, 486 n.9 (1981). The totality of circumstances in both interviews

demonstrates “an uncoerced choice” and “requisite level of comprehension,”

4
We note that the agent testified that, when he and his partner entered the room for
the first interview, Williams stated, “I know my rights. I have the right to an attorney.”
The district court did not address the significance, if any, of that statement which was
made before the agents read Williams his full rights. However, in its brief to us, the
government argues that Williams’ initial statement did not constitute an unequivocal
request for counsel which would have required the agents to cease questioning.
Appellee’s Br. at 15-16 (citing Davis v. United States, 512 U.S. 452, 459 (1994)). We
need not reach this argument, since subsequent circumstances demonstrate a voluntary
waiver in any event. See discussion and note 5 infra.

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sufficient to find, by a preponderance of the evidence, that Williams voluntarily

waived his rights and agreed to talk to the agents. 5

b. The Confession

A defendant’s confession is involuntary “if the government’s conduct

causes the defendant’s will to be overborne and ‘his capacity for self-

determination critically impaired’.” United States v. McCullah, 76 F.3d 1087,

1101 (10th Cir. 1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26

(1937)).

The FBI agents testified they told Williams that his girlfriend, who had

rented the car he drove and who owned the gun he carried, would be the subject

of further investigation as a potential witness or accomplice. Additionally, they

testified that they advised Williams they would pass on any information regarding

his cooperation. Williams contends that the statements about his girlfriend

coerced him into confessing, and he also argues that promises of leniency

rendered his confession involuntary. In its brief to us, the government responds

that neither the statements related to Williams’ girlfriend, nor the statements

5
Furthermore, even if Williams’ original waiver and agreement to the first
interview were conditional and limited, once he summoned the agents back for the second
interview, “nothing in the Fifth and Fourteenth Amendments would prohibit the [agents]
from merely listening to his voluntary, volunteered statements and using them against him
at the trial.” Edwards, 451 U.S. at 485; accord Roman-Zarate, 115 F.3d at 782; Glover,
104 F.3d at 1581.

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about possible benefits of cooperation, constitute improper or coercive conduct.

We agree.

Even if Williams’ confession was motivated by a desire to spare his

girlfriend from an investigation and its possible consequences, such motivation

does not render the confession involuntary. 6 See Glover, 104 F.3d at 1580

(considering a defendant’s desire to help a co-defendant, and finding that “[t]hese

types of personal psychological pressures do not amount to official coercion

rendering a confession involuntary”); see also United States v. Westbrook, 125

F.3d 996, 1006 (7th Cir.) (holding that agent’s suggestion that defendant’s

cooperation would help defendant’s wife did not constitute undue coercion), cert.

denied, 118 S. Ct. 643 (1997); Allen v. McCotter, 804 F.2d 1362, 1364 (5th Cir.

1986) (holding that defendant’s confession was “not involuntary by reason of his

desire to extricate his wife from a possible good faith arrest”). Furthermore, the

fact that agents state in general that cooperation may have benefits does not

compel a finding that a defendant’s statement is involuntary. See Roman-Zarate,

115 F.3d at 782; Glover, 104 F.3d at 1582.

6
We readily distinguish this case from the situation in Harris v. South Carolina,
338 U.S. 68, 69-70 (1949), in which the defendant, an illiterate, was questioned in relays
for up to twelve-hour periods over two days in a hot cubicle, without ever being advised
of his rights, and finally confessed when threatened with the arrest of his mother on
unrelated charges.

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 In assessing the voluntariness of a confession, we consider all the

circumstances, including the following factors in this case: Williams was advised

of his Miranda rights, the length of the interview was short, and no physical

punishment or improper threats were involved. Based on our review of the entire

record and the totality of the circumstances, we conclude that the district court

did not err in finding that Williams’ confession was voluntary.

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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