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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15972
Non-Argument Calendar
________________________
D.C. Docket No. 2:16-cr-00003-LSC-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LELAND GRANT, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 19, 2017)
Before MARTIN, FAY and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Leland Grant, Jr. appeals his conviction for receiving child
pornography and his restitution order, following his guilty plea. We affirm.
I. BACKGROUND
In 2013, Grant, a teacher at John Carroll Catholic High School (“John
Carroll”), and a minor student, MC,1 started having sexual contact. Their
relationship primarily occurred in the summer of 2013, when MC was 17 years old.
Grant and MC frequently text messaged and met outside of school on a number of
occasions and would go for drives together. On these drives, they would hold
hands and kiss; there also were instances where Grant touched MC on her breasts
and genitals. Sexually explicit videos and images were exchanged by text.
Grant started sending MC pictures of himself in March 2013, when MC was
16 years old, but she did not receive any nude pictures of him until the summer of
2013, when she was 17 years old. Grant sent approximately ten nude images and
three or four nude videos of himself to MC. MC sent three or four nude pictures
and one nude video of herself to Grant during the summer of 2013. She took the
nude photos and video using her cellular phone and sent the photos to Grant by text
message.
On February 12, 2014, the Jefferson County Sherriff’s Office received a
report Grant may have had inappropriate relationships with minor students at John
1
MC, also referred to in the record as MC1 and MC#1, was born in 1996.
2
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Carroll. The next day, Grant met with Charles McGrath, the principal of John
Carroll, and Michael Callahan, a retired law enforcement officer, to discuss the
allegations. Grant provided a signed, notarized statement to Callahan and admitted
to text-message exchanges with MC that involved sharing sexually explicit photos
and videos. Grant gave Callahan his cellular phone during the meeting. Principal
McGrath and Callahan then gave the cellular phone and a copy of Grant’s
statement to Sergeant Michael House.
On February 19, 2014, Grant met with Sergeant House at the Sherriff’s
Office. Sergeant House informed Grant he was not under arrest and could leave at
any time. Sergeant House read Grant his Miranda 2 rights; Grant orally confirmed
he understood. Grant then signed a Miranda waiver, showing he understood his
rights and confirming no one had forced, threatened, or promised him anything in
exchange for the waiver. Grant again admitted to having a relationship with MC
between June 2013 and February 2014 and having received nude pictures of
female students as young as 16 years old on his cellular phone. Grant discussed
his meeting with Principal McGrath and Callahan and stated he voluntarily gave
his cellular phone to Callahan. Grant assumed Callahan had given the cellular
phone to law enforcement to conduct a forensic analysis; Grant confirmed law
enforcement could perform a forensic analysis and gave Sergeant House the access
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
3
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code. Grant told Sergeant House he was trying to get a replacement cellular
phone. He also told Sergeant House he would try to bring in his wife’s cellular
phone, which previously had belonged to him.
Grant signed a written form consenting to the search of his and his wife’s
cellular phones. The forms advised Grant he could revoke his consent at any time.
Grant told Sergeant House that Principal McGrath and Callahan had stated his
cooperation could work in his favor and asked whether this was true. Sergeant
House told Grant he could not promise anything but would make Grant’s
cooperation known. The next day, Grant delivered his wife’s cellular phone to the
Sherriff’s Office and signed another form consenting to the search of the device.
On March 10, 2014, law enforcement obtained a state warrant to search Grant’s
cellular phone. The warrant was returned on May 12, 2015. 3
In January 2016, Grant was charged with two counts of sexual exploitation
of children, in violation of 18 U.S.C. § 2251(a) and (e) (Counts 1 and 2), and one
count of receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)
(Count 3). Grant filed a motion to suppress evidence arising from the state-issued
search warrant supporting the analysis of Grant’s cellular phone and the fruits of
that search, including Grant’s statements. He argued the warrant was void,
3
Although the execution date was identified as April 15, 2014, the government, during the
hearing on the suppression motion, stated new evidence showed the warrant was executed on
March 10, 2014.
4
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because it was not executed within the ten days prescribed by state law. He also
contended the search was unreasonable, because law enforcement failed to file a
return of the warrant within a reasonable time. He argued the delay in returning
his cellular phone unreasonably infringed on his possessory interest. Grant also
contended his statements were involuntary, and he did not consent voluntarily to
the search of his cellular phone.
A magistrate judge conducted a hearing on the motion to suppress. The
government introduced a video recording of Grant’s interview with Sergeant
House. Sergeant House and Grant also testified at the hearing. Sergeant House
testified he did not induce Grant in any way by threatening or telling him to
consent, making any promises, or otherwise convincing Grant to consent. Sergeant
House told Grant he could not promise anything in exchange for consent. Grant
never asked Sergeant House for his cellular phones to be returned, revoked his
consent, or placed any limits on his consent. Although Sergeant House testified he
could not recall having any communication with Principal McGrath and Callahan
prior to their interview with Grant, he did speak with them when they turned over
the cellular phone and Grant’s written statement.
Grant testified he respected Principal McGrath. During his meeting with
Principal McGrath and Callahan, they talked extensively about Catholicism, sins,
confession, and forgiveness to encourage Grant to make a statement. Callahan told
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Grant judges often show leniency to people who cooperate in criminal
investigations; Grant therefore assumed it was in his best interest to cooperate.
Grant testified, but for the declarations about his faith and leniency, he would not
have made a statement or handed over his cellular phone; he would have gotten an
attorney immediately. Grant was not Mirandized before speaking with Principal
McGrath and Callahan but did receive his Miranda warnings from Sergeant House.
Grant verified the signature on the consent forms was his signature. Grant stated
Sergeant House made no promises to him; he told Sergeant House he understood
no promises were made. Throughout his interview with Sergeant House, Grant
stated he still was reflecting on what Principal McGrath and Callahan had said to
him, and it had weighed on him because he already had given a full confession to
them.
The magistrate judge wrote a Report and Recommendation (“R&R”)
establishing the facts based on the testimony of Sergeant House and Grant and the
video recording of their February 2014 meeting. The judge recommended a denial
of the motion to suppress statements and evidence. The judge concluded Grant’s
consent to search his cellular phone was voluntary, because he told Callahan he
assumed he would give it to law enforcement, he executed written-consent forms,
he was aware of his ability to revoke his consent but elected not to do so, and he
told Sergeant House of his intent to obtain a replacement cellular phone.
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The magistrate judge also concluded Grant, a high school teacher,
understood Sergeant House did not make any promises to him in order to induce
him to make a statement; Callahan also did not promise or otherwise coerce Grant.
Grant’s conversation with Principal McGrath and Callahan was incident to Grant’s
employment. The judge stated Sergeant House’s credible testimony supported the
finding he did not use Principal McGrath and Callahan to extract evidence
unlawfully from Grant, because he could not recall ever having a conversation with
them prior to their meeting with Grant or instructing them to talk to Grant; they
had an independent reason to question Grant, because Grant’s actions involved a
student at their school. The judge noted Grant had made statements only to
Sergeant House after he waived his Miranda rights; the statements he made to
Principal McGrath and Callahan, because they are private actors, do not implicate
Grant’s constitutional rights. The magistrate judge did not reach the issue of the
validity of the warrant, because Grant made knowing and voluntary statements and
voluntarily consented to the search of his cellular phones.
The district judge adopted the R&R in its entirety and overruled Grant’s
objections. Grant subsequently signed a plea agreement. He agreed to plead guilty
to Count Three, receiving child pornography in violation of § 2252A(a)(2); the
government agreed to dismiss Counts One and Two. Grant agreed “to pay
restitution as determined by the court,” and he waived his right to appeal his
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“conviction and/or sentence . . . as well as any fines, restitution, and forfeiture
orders that the Court might impose.” Am. Plea Agreement at 1, 9 (Apr. 27, 2016).
Grant expressly reserved his right to appeal the denial of his motion to suppress.
The judge sentenced Grant to 60 months of imprisonment and ordered $8,341.25 in
restitution to cover MC’s legal fees. Grant appeals the order denying the motion to
dismiss and his restitution order for MC’s legal fees.
II. DISCUSSION
A. Motion to Suppress
On appeal, Grant argues the district judge erred in denying his motion to
suppress the evidence obtained from the search of his cellular phone and the
statements he made to the police and private actors. He argues he did not make
voluntary statements and did not consent to search of his cellular phones; even if
he did, the search warrant obtained was not validly executed. A district judge’s
ruling on a motion to suppress presents a mixed question of law and fact. United
States v. Timmann, 741 F.3d 1170, 1177 (11th Cir. 2013). We review a district
judge’s factual findings for clear error and the judge’s application of the law to the
facts de novo. Id. We accord deference to a district judge in reaching credibility
determinations with respect to witness testimony. United States v. McPhee, 336
F.3d 1269, 1275 (11th Cir. 2003).
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1. Consent
We review voluntariness of consent to search for clear error. United States
v. Zapata, 180 F.3d 1237, 1240-41 (11th Cir. 1999). Under the Fourth and
Fourteenth Amendments, “a search conducted without a warrant issued upon
probable cause is per se unreasonable subject only to a few specifically established
and well-delineated exceptions.” United States v. Garcia, 890 F.2d 355, 360 (11th
Cir. 1989) (citation, internal quotation marks, and ellipsis omitted). One exception
is a search “conducted pursuant to voluntary consent.” Id. Consent is voluntary if
it is “the product of an essentially free and unconstrained choice.” Id. A mere
indication a defendant’s cooperation could be helpful does not render the
defendant’s consent to search involuntary. See United States v. Vera, 701 F.2d
1349, 1364-65 (11th Cir. 1983).
“The government bears the burden of proving both the existence
of consent and that the consent was not a function of acquiescence to a claim of
lawful authority but rather was given freely and voluntarily.” United States v.
Acosta, 363 F.3d 1141, 1151 (11th Cir. 2004) (citation and internal quotation
marks omitted). “A district court’s determination that consent was voluntary is a
finding of fact, that will not be disturbed on appeal absent clear error.” United
States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001). We must consider the
totality of the circumstances, when determining “whether there were any
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limitations placed on the consent given and whether the search conformed to those
limitations.” United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989).
Grant voluntarily consented to the search of his cellular phone. He gave his
cellular phone to Callahan with the understanding he would turn the phone over to
the police, he voluntarily signed a consent form for the forensic search of his
cellular phone after waiving his Miranda rights, he gave Sergeant House the
password to his cellular phone, and he returned to the police station the following
day to deliver his wife’s cellular phone. While Grant signed consent forms
notifying him he could revoke or limit his consent, he never did. See Blake, 888
F.2d at 798. He also did not ask Sergeant House to return his cellular phone.
Neither Sergeant House, Principal McGrath, nor Callahan coerced Grant into
consenting to the search. Any statement Principal McGrath or Callahan made that
cooperation could help Gant did not render his consent involuntary. See Vera, 701
F.2d at 1365-65. While Principal McGrath and Callahan spoke about leniency for
cooperation, they were private actors and were not in a position to make promises
about his prosecution.4 A review of the totality of the circumstances shows
Grant’s consent was “essentially [a] free and unconstrained choice.” Garcia, 890
F.2d at 360. The judge did not clearly err in finding Grant voluntarily consented,
4
See United States v. Jacobsen, 466 U.S. 109, 113-14, 104 S. Ct. 1652, 1656-57 (1984) (holding
the Fourth Amendment restrains only the government, not private actors).
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orally and in writing, to the search of his cellular phones.5 See Zapata, 180 F.3d at
1240-41.
2. Statements
The Fifth Amendment right against self-incrimination and the Fourteenth
Amendment guarantee of due process require an incriminating statement to the
government be voluntary. United States v. Lall, 607 F.3d 1277, 1285 (11th Cir.
2010). “[C]oercive police activity is a necessary predicate to finding that a
confession was not ‘voluntary’ within the meaning of the Due Process Clause.”
Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522 (1986). The totality
of the circumstances determines whether an incriminating statement is voluntary.
United States v. Bernal-Benitez, 594 F.3d 1303, 1319 (11th Cir. 2010).
In Miranda, the Supreme Court held “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination.” 384 U.S.
436, 444, 86 S. Ct. 1602, 1612 (1966). Custodial interrogation occurs “after a
person has been taken into custody or otherwise deprived of his freedom of action
5
While Grant argues any prior consent does not survive the issuance of a search warrant and the
validity of the warrant alone controls the legality of the search, this argument fails, because we
affirm on other grounds. See United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010)
(recognizing we affirm the denial of a motion to suppress on any ground supported by the
record).
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in any significant way.” Id. Whether a suspect is in custody is an objective
inquiry that goes beyond whether a reasonable person would have felt free to
leave. United States v. Luna-Encinas, 603 F.3d 876, 881 & n.1 (11th Cir. 2010).
The proper question is whether “a reasonable person would have understood his
freedom of action to have been curtailed to a degree associated with formal
arrest.” Id. at 881 (citation and internal quotation marks omitted). In determining
whether a suspect was in custody, we consider the totality of the circumstances.
Id. We are “much less likely to find the circumstances custodial when the
interrogation occurs in familiar or at least neutral surroundings, such as the
suspect’s home.” Id. at 882 (citation and internal quotation marks omitted).
Grant’s statements to Sergeant House were voluntary and subject to the
procedural safeguards contemplated by Miranda. See Lall, 607 F.3d at 1285. At
the motion hearing, Sergeant House and Grant testified Grant was read his
Miranda rights prior to making any statements, and he signed a waiver. Sergeant
House further testified he did not induce Grant in any way by making promises to
convince him to consent; instead, he told Grant he could not make any promises.
Grant also confirmed Sergeant House did not make him any promises. Grant does
not argue, nor do the facts suggest, he felt his freedom of action was curtailed. See
Luna-Encinas, 603 F.3d at 881. He was not in custody at the time he made
statements to Sergeant House, who had told him he was not under arrest, and he
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was free to leave at any time. Grant left at the conclusion of the interview and
voluntarily returned the following day with the second cellular phone.
The magistrate judge concluded Grant’s confession to Principle McGrath
and Callahan did not implicate his Fifth Amendment privilege, because she
credited Sergeant House’s testimony he had not spoken with Principal McGrath
and Callahan prior to their interview with Grant, asked them to interview Grant, or
directed them on how to interview him. Grant, a high school teacher, was
interviewed at the school, a familiar setting, and Grant did not testify Principal
McGrath and Callahan forced or required him to stay put and answer questions.
See Luna-Encinas, 603 F.3d at 882. Grant’s interview by private actors at the high
school where he worked did not impinge on his Fifth Amendment right. See
Connelly, 479 U.S. at 166, 107 S. Ct. 521 (“The most outrageous behavior by a
private party seeking to secure evidence against a defendant does not make that
evidence inadmissible under the Due Process Clause.”). Because Grant made
knowing and voluntary statements to private actors, Principal McGrath and
Callahan, and he waived his Miranda rights before making a voluntary statement
to Sergeant House, the judge did not err in finding, under a totality of the
circumstances, Grant’s statements were voluntarily and knowingly made. See
Bernal-Benitez, 594 F.3d at 1319.
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B. Restitution Order
Grant argues the district judge erred in requiring him to pay restitution for
MC’s legal expenses, because his conviction for receipt of child pornography was
not the “proximate cause” of the expenses and the government did not provide a
rationale for why MC required counsel. Br. of Appellant at 15. The government
argues Grant’s appeal waiver expressly includes a provision about waiving his
right to appeal a restitution order. The government requests this issue be
summarily dismissed or, alternatively, denied on the merits, because attorney’s
fees are expressly included under 18 U.S.C. § 2259(b).
1. Appeal Waiver
“We review the validity of a sentence-appeal waiver de novo.” United
States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence-appeal
waiver will be enforced if it was made knowingly and voluntarily. United States v.
Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). To establish the waiver was made
knowingly and voluntarily, the government must show either (1) the district judge
specifically questioned the defendant about the waiver during the plea colloquy, or
(2) the record makes clear the defendant otherwise understood the full significance
of the waiver. Id. at 1351. A district judge’s “generalization that the defendant
could appeal his sentence under some circumstances” has been found to be
insufficient. Id. at 1353.
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The judge expressly found Grant understood the consequences of his plea
agreement. Although the judge did not explain the waiver terms to Grant, he
generally did confirm Grant understood the appeal waiver. The judge, however,
did not provide a sufficient explanation of the appeal waiver during Grant’s plea
colloquy. See id. at 1352-53. While the judge specifically questioned Grant about
signing the sentence-appeal waiver, his explanation was brief and vague, asking
only whether Grant had understood by signing the waiver he had given up his right
to appeal except in the limited number of circumstances explicitly set forth in the
plea agreement. The judge also specifically did not mention Grant had waived his
right to appeal a restitution order or state what expenses would be included in a
restitution order. Because the judge did not fully apprise Grant of the scope of his
sentence-appeal waiver in order to satisfy the first prong of Bushert, we will
review the merits of Grant’s arguments. See id.
2. Restitution for Victim’s Legal Fees
We review for plain error if the defendant raises an issue for the first time on
appeal. United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 1776
(1993). When analyzing a claim under the plain-error standard, this court will look
to see (1) whether the district judge committed error, (2) that is plain, and (3) that
affects substantial rights, but only if (4) the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. United States v. Lejarde-
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Rada, 319 F.3d 1288, 1290 (11th Cir. 2003). Plain error cannot be established
where the explicit language of a statute or rule does not resolve an issue and there
is no precedent from the Supreme Court or our court directly resolving it. Id. at
1291.
Chapter 110 of Title 18 of the United States Code involves crimes related to
the sexual exploitation and other abuse of children, including 18 U.S.C.
§ 2252A(a)(2), receipt of child pornography. See 18 U.S.C. §§ 2251-2260a. It
requires the district judge to order restitution for any offense in the chapter, for
“the full amount of the victim’s losses.” See 18 U.S.C. § 2259(a), (b)(1),
(b)(4)(A). The victim’s losses, as determined by the judge, “include any costs
incurred by the victim for— (E) attorney’s fees, as well as other costs incurred.”
§ 2259(b)(3). Victim is defined as “the individual harmed as a result of a
commission of a crime under this chapter, including, in the case of a victim who is
under 18 years of age, . . . the legal guardian of the victim.” § 2259(c).
In applying § 2259, the Supreme Court held the government must prove the
defendant’s conduct was the proximate cause of the victim’s losses in order to
impose a restitution order for those losses. Paroline v. United States, __ U.S. __,
__, 134 S. Ct. 1710, 1722 (2014). The Court reasoned the first five categories of
§ 2259(b)(3), including the provision identifying attorney’s fees, give “guidance to
district courts as to the specific types of losses Congress thought would often be
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the proximate result of a Chapter 110 offense and could as a general matter be
included in an award of restitution.” Id. at 1721. Section 2259 clearly states, for a
crime under the chapter, the district judge must order restitution for the full amount
of the victim’s losses, including attorneys’ fees. See 18 U.S.C. § 2259(a), (b).
Paroline identified attorney’s fees as a loss specifically contemplated by Congress
that would be “the proximate result of a Chapter 110 offense.” 134 S. Ct. at 1721.
MC, the victim, went to an attorney after her relationship with Grant was
discovered in order to determine what legal remedies were available. The district
judge found the attorneys were present during the victim’s interviews,
demonstrating the fees were proximately caused by Grant’s crime. Paroline
confirms Congress contemplated attorney’s fees to be the proximate result of a
conviction under Chapter 110, which includes § 2252A(a)(2). Because the explicit
language of a statute and Supreme Court case law have resolved restitution under §
2259 may include attorney’s fees, and Grant had failed to object at the close of the
hearing to the calculation of the fees, the district judge did not plainly err in
awarding restitution for the victim’s legal fees. See Olano, 507 U.S. at 731-32,
113 S. Ct. at 1776; Lejarde-Rada, 319 F.3d at 1291.
AFFIRMED.
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