UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-21183
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARCELLUS TEMEL ARTERBERRY, also known as Marceles Temel
Arterberrg, also know as Marcellus Teme Arterberry, also known as
Marcellus T. Arterberry; ARON DEREL HOOD, and LATREED GAYLAND
JACKSON, also known as Latred Gayland Jackson,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas, Houston Division
(H-99-CR-259-1)
April 20, 2001
Before GARWOOD, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Marcellus Temel Arterberry, Aron Derel Hood and Latreed
Gayland Jackson appeal their convictions and sentences for bank
robbery and brandishing a firearm during a crime of violence. We
affirm.
FACTS AND PROCEDURAL HISTORY
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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On May 26, 1999, a federal grand jury returned a four-count
indictment charging Arterberry, Hood, Jackson and a fourth
individual, Rennald Dem’on LeBlanc, with two counts of robbing a
federally-insured bank, in violation of 18 U.S.C. § 2113(a) and (d)
and 18 U.S.C. § 2 and two counts of brandishing a firearm during a
crime of violence, in violation of 18 U.S.C. § 924(c) and 18 U.S.C.
§ 2. The charges in Counts 1 and 2 pertained to the February 15,
1999, armed robbery of the Compass Bank in Houston, Texas (the
“Compass Bank robbery”); the charges in Counts 3 and 4 pertained to
the March 9, 1999, armed robbery of the First National Bank of
Rosenberg in Sugarland, Texas (the “Sugarland bank robbery”). The
robberies were similar in that the perpetrators of both robberies
were young black males wearing T-shirt sleeve masks who, in order
to facilitate their escape, made the robbery victims take their
clothes off. Further, the robbers in both banks referred to the
tellers’ cash drawers as “tills” and questioned the employees
regarding video cameras and tapes.
LeBlanc’s motion for severance was granted and he is
consequently not a party to this appeal. Appellants pleaded guilty
to Counts 3 and 4 (the Sugarland bank robbery) and waived a jury
trial on Counts 1 and 2 (the Compass Bank robbery). Following a
one-day bench trial, the court convicted Appellants on Counts 1 and
2. On appeal, Appellants challenge only their convictions on Count
1 and 2.
The defendants were arrested by local police during the course
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of the Sugarland bank robbery. They each made custodial statements
to law enforcement officers that implicated them in the Compass
Bank robbery. The Appellants’ primary contention, at trial and on
appeal, is that those confessions should be suppressed because they
were not voluntary. The district court denied Appellants’ motion
to suppress, finding that the confessions were voluntary under the
totality of the circumstances and thus admissible.
DISCUSSION
A. Standard of Review
The voluntariness of a confession presents a mixed question
of law and fact. Miller v. Fenton, 474 U.S. 104, 112 (1985). The
district court’s factual findings are reviewed for clear error,
United States v. Scurlock, 52 F.3d 531, 536 (5th Cir. 1995), and
will be upheld absent a “definite and firm conviction that a
mistake has been committed.” Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985). The ultimate question of voluntariness
is a legal one that is reviewed de novo. Miller, 474 U.S. at 110;
Scurlock, 52 F.3d at 536.
B. Suppression of Defendants’ Statements
The Government had the burden of establishing, by a
preponderance of the evidence, that each defendant was extended his
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Miranda1 warnings and knowledgeably and voluntarily waived them.
United States v. Ornelas-Rodriguez, 12 F.3d 1229, 1347 (5th Cir.
1994). The standard for determining whether a confession is
voluntary is whether, taking into consideration the totality of the
circumstances, the statement is the product of the accused’s free
and rational choice. Id. If a person voluntarily, knowingly, and
intelligently waives his constitutional privilege, a statement is
not considered compelled within the meaning of the Fifth Amendment.
Id.
1. Arterberry
Arterberry, a 24-year-old male, was the first defendant to be
interviewed. The interview started at 5:00 p.m., approximately two
hours after his arrest and lasted about 90 minutes. Two officers
in plain clothes, Detective Body and Sergeant Ruteshouser, were in
the room with Arterberry, who was not handcuffed or restrained.
Arterberry indicated that he had experience with law enforcement
and judicial systems; he had one prior conviction for which he
received probation and a second conviction for which he had served
a two-year sentence. Body read Arterberry his Miranda rights and
advised him that he had “the right to terminate the interview at
any time.” Arterberry stated that he understood his rights, and he
agreed to waive them and speak to the officers.
Arterberry confessed promptly to the Sugarland bank robbery,
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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explaining that he and his accomplices made the employees take
their clothes off to prevent them from chasing after the robbers
during their getaway. Ruteshouser then questioned Arterberry about
the Compass Bank robbery, noting the similarities between the two
robberies and showing Arterberry the surveillance photographs taken
during the Compass Bank robbery. Arterberry initially denied any
involvement in the earlier robbery. The officers employed several
tactics to induce Arterberry to confess. They told him that he was
the first of the accomplices to be interviewed, and that this was
his only opportunity to come clean; they asked him if his daughter
would be able to pick him out of the surveillance photographs; they
told him that he was subject to prosecution in both state and
federal court; they stated that they would advise the probation
officer about his cooperation and that any such cooperation
“[m]akes a big difference in both systems.” Ruteshouser told
Arterberry that it would be “very beneficial” for him to tell them
what he knew about that robbery “[b]esides what we know, and you
know that we know.” Ruteshouser once again described the “unique”
similarities between the two robberies. Arterberry then confessed,
stating “I’m already caught. . . . I might as well tell you the
whole deal.” After Arterberry confessed, he asked the officers how
his confession might be used in determining his sentence. In
response to that specific question, the officers told Arterberry
that cooperating could result in a deduction of points used to
figure the length of his sentence.
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Arterberry posits two aspects of the interrogation that
rendered his confession involuntary. First, he characterizes two
statements by the officers as gross misrepresentations: that a
confession to the earlier bank robbery would “make[] a big
difference” in the length of his prison sentence and would be “very
beneficial” to him. Arterberry argues that the only potential
sentencing benefit that he was eligible to receive as a consequence
of a confession was an acceptance of responsibility adjustment
under U.S.S.G. § 3E1.1, which would have reduced his prison
sentence by “only a few years.” Given his total prison sentence of
552 months, Arterberry argues that a few years did not make a “big
difference.” Second, he contends that the officers created a false
sense of urgency about the need for Arterberry to confess stating
that the interview was his only opportunity to cooperate. The
district court rejected this view of the interview, concluding that
the officers conveyed to Arterberry that this was his only
opportunity to tell the truth from the outset and to tell the same
story consistently.
Having reviewed the record, including the video taped
interview, we conclude that, given the totality of the
circumstances, the officers employed no improper coercion and made
no improper promise of leniency to Arterberry.
2. Jackson
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Body and Ruteshouser interviewed Jackson, an 18-year-old male,
beginning at 9:06 p.m. the same night, for approximately 45
minutes. Jackson had completed the tenth grade, but has some
mental limitations. He is functionally illiterate, able only to
recognize a few words and to sign his name. Jackson also had prior
experience in the criminal justice system. After being advised of
and waiving his Miranda rights, Jackson agreed to speak to the
officers. At the outset, Jackson confessed to participating in the
Sugarland bank robbery that day. During the course of this
confession, Ruteshouser explained that, if the case ended up in
federal court, “the jail time you get depends on a point system.”
He further explained that different crimes get different points,
and that the length of the sentence also depends on the person’s
criminal record. Cooperation, he said, “can take points away,”
adding that the probation officer would contact the interviewing
officers to assess Jackson’s cooperation.
Turning again to the details of the Sugarland bank robbery,
Body asked, “Who told the . . . ladies to take their clothes off?”
Jackson replied “that’s what we do in every robbery, I guess,” but
then denied involvement in any other robberies. Ruteshouser next
showed him a “picture from one of the surveillance cameras” and
asked him if he could identify the individual in it. Jackson
identified himself in the photograph. Ruteshouser explained to
Jackson that the photograph was taken during the Compass Bank
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robbery and Jackson replied that he remembered doing it, but not
“how we done it.” Ruteshouser reminded Jackson “about the downward
points for cooperating.” Thereafter, Jackson provided further
incriminating details concerning his involvement in the Compass
Bank robbery.
On appeal, Jackson contends that the officers’ statements
concerning the “point system” and the opportunity to receive a
lower sentence by cooperating amounted to an unconstitutional
inducement to confess.
The district court noted that Jackson has “some degree of
mental impairment,” and delayed ruling on Jackson’s motion to
suppress pending the completion of a competency examination. Based
on the results of that examination and a review of the video tape
of the interview, the district court determined that Jackson had
sufficient intelligence to understand the officers’ questions and
effectuate a valid waiver of his rights. The district court also
found that Jackson’s own actions during the interview demonstrated
that he “was able to attempt to cover-up actions that he recognized
as wrong.” For these reasons, the district court rejected as not
persuasive the argument that Jackson lacked the mental capacity to
voluntarily make the statement in question and found that the
government has met its burden on that point. We agree.
Having reviewed the record, including the video taped
interview, we conclude that, given the totality of the
circumstances, the officers offered no unconstitutional inducement
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to obtain Jackson’s confessions.
3. Hood
Hood, a 24-year-old male, was the last of the suspects
interviewed, beginning at 10:02 p.m. on the same night and lasting
approximately 40 minutes. Like his co-defendants, Hood had
experience with the state criminal justice system, including three
prior convictions. After he was advised of and waived his Miranda
rights and agreed to speak to the officers, he too confessed
promptly to the Sugarland bank robbery.
Later in the interview, Ruteshouser asked Hood some questions
about the Compass Bank robbery. Hood denied any involvement in
other robberies. The officers told Hood that he was the last one
to be interviewed and stated “we already know exactly what happened
the first time,” referring to the Compass Bank robbery. After Hood
stated that he understood “plea bargain[s] and all that,” Body told
him that, if this case went to federal court, “we’re talking about
getting points reduced, your overall points for sentencing reduced
for fully cooperating with us.” They also explained the
similarities between the two robberies to Hood, telling Hood that
his co-defendants had been shown the surveillance photographs of
the Compass Bank robbery and had “told us which ones were which.”
Hood replied, “They did? Can I see them?”
Ruteshouser then showed Hood four picture, one of each person
in the robbery. After reviewing the photos, and in response to
9
Ruteshouser’s request, Hood handed the photograph of himself back
to Ruteshouser, then went on to provide further details of the
Compass Bank robbery.
The district court denied Hood’s motion to suppress, noting
that Hood’s arguments were very similar to those of Arterberry. In
particular, the court found that the officers’ description of the
federal point system did not constitute coercion or amount to an
improper promise of benefit in the overall context of the
interview, including the disclosure of the evidence that Hood had
participated in the earlier robbery.
On appeal, Hood contends that the nature of the questioning
and the promises made therein, without counsel, make his statements
involuntary and inadmissible under the Fourth, Fifth, and Sixth
Amendments to the Constitution. Hood also contends that his right
to prompt arraignment under Rule 5(a) of the Federal Rules of
Criminal Procedure and 18 U.S.C. § 3501 were violated. Having
reviewed the record, including the video taped interview, we
conclude that, given the totality of the circumstances, Hood’s
statement was voluntary and not the result of improper inducements.
Hood further argues that the seven hour delay between his 3:00
p.m. arrest and the beginning of the interview, during which time
he had not yet been arraigned, violates the requirement that he be
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promptly taken before a magistrate. See § 3501(c). Delay in taking
a defendant before a magistrate is only one factor to be considered
in determining voluntariness of a defendant’s statement, and to
render consent involuntary or to require suppression of evidence,
the delay must have been unnecessary. United States v. Killian,
639 F.2d 206 (5th Cir. 1981). The two officers assigned to this
investigation personally interviewed and processed four suspects
between the 3:00 p.m. arrest at the robbery site and the conclusion
of Hood’s interview at approximately 10:40 p.m. We conclude that
the officers acted reasonably, that they did not violate any of
Hood’s constitutional or statutory rights and that Hood’s
confession was voluntary and admissible.
C. Second or subsequent conviction
Jackson contends that the district court misconstrued 18
U.S.C. § 924(c)(1)(C) when it sentenced him on Count 4 of the
indictment under the enhanced sentencing provisions as a “second or
subsequent” conviction for use of a firearm in a drug offense or
crime of violence when his only other conviction for violation of
924(c) was in Count 2 of the same indictment. Jackson contends
that § 924(c) should be construed to require a conviction for the
earlier offense prior to the commission of the present offense in
order to apply the enhanced penalty provision of § 924(c). The
Government argues, and Jackson concedes, that his position is
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foreclosed by the Supreme Court’s decision in Deal v. United
States, 508 U.S. 129 (1993). We agree. We therefore find no merit
in Jackson’s challenge to the enhanced sentence imposed for Count
4.
CONCLUSION
Based on the foregoing, we affirm the convictions and
sentences of all Appellants.
AFFIRMED.
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