[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11553 ELEVENTH CIRCUIT
MARCH 9, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00041-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEE COBB,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 9, 2010)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Lee Cobb, through counsel, appeals from his convictions for: (1) possession
with intent to distribute crack cocaine; (2) using his residence for the purpose of
storing, distributing, or using cocaine and crack cocaine; (3) distribution of crack
cocaine; and (4) possession of a firearm as a convicted felon. On appeal, he argues
that his convictions should be reversed because the district court erred in finding
that he received Miranda1 warnings before he made inculpatory statements to
police officers, and, as result, erroneously denied his motion to suppress his
statements to the officers. Specifically, Cobb argues that: (1) he did not receive
Miranda warnings before the police officers who searched his apartment
interrogated him; (2) even if he did receive Miranda warnings at the beginning of
the search, the officers were required to re-administer these warnings before they
interrogated him in his bedroom; and (3) any waiver of his Miranda rights was
involuntary. For the reasons set forth below, we affirm Cobb’s convictions, but
sua sponte remand this case for the limited purpose of correcting a clerical error in
the district court’s final judgment.
I.
In a superseding indictment, a federal grand jury indicted Cobb for:
(1) possession with intent to distribute crack cocaine, in violation of 21 U.S.C.
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Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2 (“Count 1”); (2) using his residence
for the purpose of storing, distributing, or using cocaine and crack cocaine, in
violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2 (“Count 2”); (3) distribution
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C.
§ 2 (“Count 3”); and (4) possession of a firearm as a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1), 924(e), and 2 (“Count 4”). Cobb entered a plea of not
guilty on all counts and proceeded to trial.
At trial, Phil McDonald, a Drug Enforcement Administration task force
agent employed by the Cape Coral Police Department, testified that, in February
2008, he and other officers executed a search warrant authorizing the search of
Cobb’s apartment. While he was inside of Cobb’s apartment, McDonald observed
cocaine pipes on the kitchen table and utensils typically used to manufacture crack
cocaine on top of a microwave oven. In addition, McDonald also saw a coffee pot,
inside of which he discovered two baggies containing substances that later tested
positive for crack cocaine. Inside of a kitchen drawer, McDonald found pieces of
mesh that could be used to smoke crack cocaine, and digital scales that could be
used to measure cocaine or crack cocaine.
McDonald further testified that, after he finished searching the kitchen, he
provided Cobb with Miranda warnings. McDonald averred that he did not speak
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with Cobb until after he read him his rights under Miranda. As part of the
Miranda warnings, McDonald informed Cobb that he had the right to remain
silent, as well as the right to speak with an attorney. After hearing the Miranda
warnings, Cobb agreed to talk to McDonald. Cobb told McDonald that he was
aware of, and responsible for, the drugs and the drug paraphernalia in his
apartment. Cobb also stated that he and other individuals who lived in the
apartment sold crack cocaine. At the time that Cobb made these statements, both
Cobb and McDonald were in the kitchen.
McDonald further testified that, after he spoke with Cobb, he proceeded to
search the master bedroom, in which he found additional drug paraphernalia,
cocaine, and crack cocaine. While he was in the master bedroom, McDonald again
spoke with Cobb, and asked him about the drugs in the bedroom. McDonald
averred that he did not engage in making promises or coercion in order to convince
Cobb to speak with him, and that Cobb was “cooperative.” While they were in the
bedroom, Cobb told McDonald that he and Leeann Chambers used the bedroom.
He further stated that he was aware of, and was responsible for, the items in the
bedroom. In addition, Cobb stated that he and the other individuals who lived in
the apartment sold at least an ounce of narcotics every day. When McDonald
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asked Cobb about the pipes in his apartment, Cobb stated that he sometimes
permitted his narcotics customers to smoke crack cocaine in the apartment.
McDonald further testified that the officers found a rifle in Cobb’s bedroom.
When McDonald asked Cobb about the rifle, Cobb responded that he was
“holding” it for his son. McDonald reminded Cobb that he was a convicted felon,
and Cobb responded that he was aware that he was not permitted to be around
firearms.
Klaus Chambers, who lived with Cobb, testified that he had assisted Cobb
with drug trafficking by picking up cocaine on his behalf and selling crack cocaine
on his behalf. He sold crack cocaine out of Cobb’s apartment. On any given day,
between 10 to 15 people would visit Cobb’s apartment to buy crack cocaine. Cobb
and Leeann Chambers would provide Klaus Chambers with the crack cocaine to
sell to customers.
Robert Wardrop, a detective employed by the Cape Coral Police
Department, testified that he assisted in searching the master bedroom in Cobb’s
apartment. Wardrop testified that he asked Cobb about sets of coins that he found
in the bedroom, and Cobb responded that he had received the coins in exchange for
crack cocaine. At this point in Wardrop’s testimony, the court sua sponte asked
the parties to approach the bench for a sidebar discussion. During this discussion,
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the court stated that it was concerned that it was not clear whether Cobb received
Miranda warnings prior to his discussion with Wardrop. The prosecution
informed the court that it could demonstrate that Cobb had received Miranda
warnings before he spoke to Wardrop.
Thereafter, Wardrop further testified that he did not hear anyone inform
Cobb of his rights under Miranda, did not read Miranda warnings to Cobb, and did
not ask McDonald whether he had read Miranda warnings to Cobb. Wardrop
identified a rifle as the rifle that he and other officers found in Cobb’s bedroom.
At this point during the proceedings, the parties stipulated that Cobb was a
convicted felon at the time the search of his apartment took place.
Cobb moved to strike Wardrop’s testimony. The prosecution offered to
recall McDonald in order to establish when he informed Cobb of his Miranda
rights. Outside the presence of the jury, the government recalled McDonald, who
testified that he read the Miranda warnings to Cobb verbatim from a card that he
had carried with him on the day of the search. McDonald identified a card as one
that was identical to the card he had carried with him when he searched Cobb’s
apartment. He read the contents of the card aloud. The card informed the arrestee
that he had the following rights: (1) to remain silent; (2) to ask a lawyer for advice;
(3) to have an attorney appointed to represent him if he could not afford an
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attorney; and (4) to stop answering questions at any time. McDonald stated that,
after he informed Cobb of these rights, he asked Cobb if he understood his rights
and, with these rights in mind, whether he wished to speak to McDonald and the
other officers. McDonald clarified that he had informed Cobb of these rights while
they were in the kitchen, and that this occurred before Wardrop questioned Cobb in
the master bedroom.
After McDonald concluded his testimony, Cobb’s attorney notified the court
that Cobb had just informed him that McDonald’s testimony was incorrect, and
that Cobb had not received Miranda warnings until he was taken to the police
department, which occurred after the search of his apartment had ended. Based on
this information, Cobb’s attorney made an oral motion to suppress the statements
that Cobb made to the officers during the search of his apartment, and also
requested that the court permit Cobb to testify in support of his motion. The court
granted Cobb permission to testify in support of his motion to suppress.
Cobb subsequently testified that the officers had handcuffed him as soon as
they entered his apartment to execute the search warrant. The officers did not ask
him any questions until they searched his bedroom. At the time that the
questioning in his bedroom occurred, he previously had been standing outside for
half an hour. McDonald did not inform Cobb of his Miranda rights while they
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were in his apartment. During the search, Cobb answered some of the officers’
questions. Any statements that he made to the officers at his apartment occurred
before he was informed of his Miranda rights.
On cross-examination, Cobb denied that an officer informed him of his
Miranda rights in his kitchen. Cobb also denied that an officer questioned him in
the kitchen, asserting that he was questioned only in his bedroom.
The court denied Cobb’s motion to suppress, finding that the government
had established, by a preponderance of the evidence, that Cobb was informed of
his Miranda rights before he made statements in response to questioning by the
officers. The court noted that McDonald’s testimony and Cobb’s testimony were
in direct conflict, and indicated that it found that McDonald’s testimony was more
credible than Cobb’s testimony. Thus, the court determined that McDonald had
informed Cobb of his rights under Miranda “at a point in time that preceded his
statements in response to questioning by officers.” The court noted that it also
denied Cobb’s motion to strike Wardrop’s testimony.
Thereafter, Wardrop resumed his testimony before the jury. In addition to
finding coins in Cobb’s bedroom, Wardrop also had discovered gift cards,
cameras, and silverware. When Wardrop questioned Cobb about these items, Cobb
told him that individuals had given these items to him in exchange for crack
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cocaine. In addition, Cobb was asked about a sign in his bedroom that stated “Call
back tomorrow. Thank you.” He told the officers that he would place this sign on
the door to his apartment so that narcotics customers would not wake him up while
he was sleeping.
The jury found Cobb guilty as to Counts 1 through 4. The jury’s verdict
form specified that Count 1 charged Cobb with possession with intent to distribute
crack cocaine, and that Count 3 charged Cobb with the distribution of the crack
cocaine. However, the court’s final judgment provided that Cobb’s convictions
under Counts 1 and 3 were both for the possession with intent to distribute crack
cocaine. The court sentenced Cobb to concurrent terms of 180 months’
imprisonment for each count of conviction.
II.
“We review a district court’s denial of a motion to suppress evidence as a
mixed question of law and fact, with rulings of law reviewed de novo and findings
of fact reviewed for clear error.” United States v. Lindsey, 482 F.3d 1285, 1290
(11th Cir. 2007). In addition, we view the facts “in the light most favorable to the
prevailing party in [the] district court.” Id. It is within the district court’s province
to make credibility determinations, and these determinations are generally
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conclusive unless the court credits “exceedingly improbable” testimony. United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quotation omitted).
Under Miranda, officers must advise an individual who is in custody of the
following: (1) his right to remain silent; (2) that, if he chooses to speak, anything
he says can be used against him in court; (3) his right to consult with a lawyer and
have his lawyer be present during interrogation; and (4) an explanation that, if he is
indigent, a lawyer will be appointed to represent him. 384 U.S. at 467-73, 86 S.Ct.
at 1624-27. Statements obtained in violation of Miranda, whether exculpatory or
inculpatory, are not admissible at trial. Id. at 444, 86 S.Ct. at 1612. The
government must “prove by a preponderance of the evidence that the defendant
waived his rights voluntarily, knowingly, and intelligently.” United States v.
Glover, 431 F.3d 744, 748 (11th Cir. 2005). A defendant’s waiver of his Miranda
rights is knowing and voluntary where, “it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception, and it was made with a full
awareness of both the nature of the right being abandoned and the consequences of
the decision to abandon it.” United States v. Beckles, 565 F.3d 832, 840 (11th Cir.)
(quotation omitted), cert. denied, 130 S.Ct. 272 (2009).
“There is no requirement that an accused be continually reminded of his
rights once he has intelligently waived them.” United States v. Barner, 572 F.3d
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1239, 1244 (11th Cir. 2009) (quotation omitted); see also Moore v. Dugger, 856
F.2d 129, 133-34 (11th Cir. 1988) (holding, in the habeas context, that the
defendant’s statements were admissible despite the fact they were not preceded by
a repetition of the Miranda warnings, because he previously had received the
Miranda warnings and understood these rights). Even if a district court admits a
defendant’s statement that was obtained in violation of the Miranda rule, the error
does not warrant reversal if it was harmless. United States v. Arbolaez, 450 F.3d
1283, 1292-93 (11th Cir. 2006) (holding that any error in admitting the defendant’s
statement in violation of Miranda was harmless in light of the substantial evidence
against him).
Here, the district court did not err in denying Cobb’s motion to suppress.
Officer McDonald consistently testified that he read Miranda warnings to Cobb
before any officers questioned him, and Cobb does not point to any evidence
demonstrating that this testimony was “exceedingly improbable.” While Cobb
testified that he did not receive Miranda warnings before officers questioned him
in his bedroom, it was within the district court’s province to determine whether to
credit McDonald’s testimony over Cobb’s testimony. Furthermore, while Cobb
contends that any Miranda warnings he may have received were “stale” by the
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time he was questioned in his bedroom, officers are not required to continually
re-administer Miranda warnings.
Finally, although Cobb asserts that any waiver of his Miranda rights was
involuntary and unknowing, he does not provide any explanation as to why the
waiver would be involuntary and unknowing. McDonald testified that he did not
engage in making promises or using coercion in order to induce Cobb to speak to
him, and Cobb does not point to any evidence indicating that he did not understand
his Miranda rights, or was pressured to relinquish them against his will. Thus,
Cobb’s bare assertion that any waiver of his Miranda rights was invalid lacks
merit. Accordingly, viewing the evidence in the light most favorable to the
government, the court did not err in denying Cobb’s motion to suppress because
McDonald’s testimony supported the conclusion that Cobb validly waived his
Miranda rights before responding to the officers’ questions.
Even if the district court had erred in denying Cobb’s motion to exclude the
statements he made to the officers, this error would have been harmless in light of
the substantial properly admitted evidence against Cobb. The officers found
cocaine, crack cocaine, drug paraphernalia, and a rifle in Cobb’s bedroom. In
addition, Klaus Chambers testified that he sold crack cocaine out of Cobb’s
apartment on Cobb’s behalf. Moreover, Cobb stipulated that he was a convicted
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felon. As a result, even if the district court had excluded Cobb’s statements,
substantial evidence supported the jury’s determination that Cobb possessed crack
cocaine with the intent to distribute it, distributed crack cocaine, used his apartment
for the purpose of distributing crack cocaine, and possessed a firearm as a
convicted felon. Accordingly, we affirm Cobb’s convictions.
III.
“We may sua sponte raise the issue of clerical errors in the judgment and
remand with instructions that the district court correct the errors.” United States v.
Massey, 443 F.3d 814, 822 (11th Cir. 2006); see also United States v. Anderton,
136 F.3d 747, 751 (11th Cir. 1998) (remanding to the district court to correct a
clerical error when the judgment cited 18 U.S.C. § 2242(a)(4)(B), but the
defendant actually violated 18 U.S.C. § 2252(a)(4)(B)). “[I]t is fundamental error
for a court to enter a judgment of conviction against a defendant who has not been
charged, tried, or found guilty of the crime recited in the judgment.” Massey, 443
F.3d at 822 (quotation omitted).
We sua sponte note that there is a clerical error in the court’s judgment.
Count 3 of the superseding indictment charged Cobb with distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), while Count 1 charged
Cobb with possession with intent to distribute crack cocaine, in violation of
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§ 841(a)(1) and (b)(1)(C). The jury’s verdict form reflects that it convicted Cobb
of these offenses as they were set forth in the superseding indictment. The court’s
final judgment in this case, however, reflects that Cobb’s convictions for both
Counts 1 and 3 were for the offense of possession with intent to distribute crack
cocaine. Because the district court’s judgment incorrectly states that Cobb’s
conviction for Count 3 was for possession with intent to distribute crack cocaine,
instead of distribution of crack cocaine, we remand this case for the limited
purpose of correcting the clerical error in the district court’s final judgment.
CONVICTION AFFIRMED, REMANDED WITH INSTRUCTIONS.
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