United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT September 30, 2004
Charles R. Fulbruge III
Clerk
No. 03-41521
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(C-03-CR-94-1)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Frank Davis appeals his convictions for possession with intent
to distribute approximately 47 kilograms of marijuana and
conspiracy to possess with intent to distribute more than 50
kilograms of marijuana. Davis contends the district court erred by
denying his pre-trial motion to suppress his inculpatory
statements. Davis asserts he made those statements without counsel
present after his request that counsel be present before he spoke
*
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this opinion should not be published and is not precedent except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.
with law enforcement officers regarding this matter. The motion
was denied, after a hearing, immediately prior to trial.
Our court will accept a district court’s factual findings
based on live testimony at a suppression hearing “unless [they are]
clearly erroneous or influenced by an incorrect view of the law”.
United States v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993), cert.
denied, 511 U.S. 1010 (1994). When a suppression motion is denied,
the evidence is viewed in the light most favorable to the
Government. E.g., United States v. Garza, 118 F.3d 278, 282-83
(5th Cir. 1997).
Davis requested that counsel be present during his first
meeting with Drug Enforcement Agency Agents regarding this matter,
but he did not make any inculpatory statements at that time. Davis
initiated his next conversation with DEA Agents, was informed of
his Miranda rights prior to making any statements, and signed a
Miranda waiver. Because Davis initiated the conversation during
which he made the inculpatory statements, his right to counsel was
not violated, even though he had previously requested counsel. See
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Mann v. Scott, 41
F.3d 968, 975-76 (5th Cir. 1994).
AFFIRMED
2