NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0607n.06
No. 17-1265 FILED
Nov 02, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
BIJAN WOODLEY, )
EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
)
BEFORE: DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Based in large part upon inculpatory
statements given by defendant Bijan Woodley to law enforcement officers, a jury convicted
Woodley of carjacking and of use of a firearm during and in relation to a crime of violence. The
district court imposed consecutive prison sentences of 24 months and 84 months, to be followed
by three years of supervised release. On appeal, Woodley now contends that his confessions—
and the evidence that was uncovered as a result of those confessions—were obtained in violation
of his right to counsel guaranteed by the Sixth Amendment to the United States Constitution. He
also argues that the government’s failure to bring him before a magistrate judge “without
unnecessary delay” should have led the district court to suppress incriminating evidence obtained
prior to that court appearance. Supreme Court and circuit precedent lead us to conclude that
No. 17-1265
United States v. Woodley
Woodley’s allegations of error are without merit. We thus affirm the judgment of the district
court.
FACTUAL AND PROCEDURAL BACKGROUND
On January 8, 2015, a federal grand jury indicted Woodley for a December 30, 2014,
carjacking and for using a firearm during and in relation to that crime of violence. Four days
later, on January 12, Detroit Police Department detective Moises Jimenez, armed with an arrest
warrant, found Woodley in a residence, cuffed him, informed him that he was being arrested for
a carjacking incident, and arranged for the defendant to be transported to police headquarters.
Woodley arrived at the headquarters at approximately 8:00 p.m. on January 12, and at
8:13 p.m., he initialed and signed a notification-of-rights form that, in pertinent part, provided:
I understand that:
1. I have a right to remain silent and that I do not have to answer any questions
put to me or make any statements.
2. Any statement I make or anything I say will be used against me in a Court of
Law.
3. I have the right to have an attorney (lawyer) present before and during the time
I answer any questions or make any statement.
4. If I cannot afford an attorney (lawyer), one will be appointed for me without
cost by the Court prior to any questioning.
5. I can decide at any time to exercise my rights and not answer any questions or
make any statement.
I understand that these are my rights under the Law. I have not been threatened or
promised anything, and I now desire and agree to answer any questions put to me
or to make a statement.
At that time, however, neither Detroit Police Department Detective Richard Houser nor Officer
Lori Dillon informed Woodley that he already had been indicted for the carjacking for which he
was arrested. In fact, as he was signing the waiver-of-rights form, Woodley asked, “What am I
here for?” and later, when Houser stated, “You know why you’re here,” Woodley replied, “I
really don’t.”
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Over the next two hours, the officers were recorded1 questioning Woodley about his
acquaintances and asking him to identify individuals in various photographs, including a
photograph of Kanee Goode, an individual indicted with Woodley for the December 30
carjacking. Then, at 10:05 p.m., the interrogators showed Woodley a surveillance video taken in
the parking lot of Lou’s Coney Island, a 24-hour restaurant where the carjacking under
investigation had occurred, and asked Woodley whether he was one of the people shown in the
video. Three times, Woodley denied that he was involved in the carjacking, the last time after
Dillon had informed him, “You’ve been indicted for this carjacking . . . . [Y]ou’re going to go
through the federal system.” For approximately 30 more minutes, Woodley continued to deny
any participation in the carjacking, and at 10:50 p.m., Houser offered Woodley the opportunity to
take a cigarette break.
Curiously, when the interrogation resumed ten or so minutes later, only one of the two
cameras recording the questioning was operational, thus offering a video, but not an audio,
record of the last 51 minutes of the interrogation. However, both Dillon and arresting officer
Jimenez, who was present during the questioning after the cigarette break, offered written
summaries of what Woodley purportedly said during those 51 minutes—approximately three to
four hours after his arrest. According to Dillon:
WOODLEY confessed to being involved in a carjacking that took place on
December 30, 2014 at 19100 Mound, Detroit, Michigan. WOODLEY denied
knowing the other two subjects who assisted WOODLEY during the carjacking.
WOODLEY stated that he was with two other unknown black males who
provided the weapons that were used during the robbery.
1
The recording equipment at the police headquarters was activated automatically “once you open the door
and turn the lights on” in the interrogation room.
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Jimenez’s report stated:
ON 01/12/2015 AT APPROXIMATELY 8:10 PM, POLICE OFFICER LORI
DILLION [sic] ASSIGNED TO THE V[IOLENT] C[RIMES] T[ASK] F[ORCE]
ALONG WITH DETECTIVE RICHARD HOUSER ASSIGNED TO DETROIT
HOMICIDE INTERVIEWED SUBJECT: BIJUAN [sic] WOODLEY WHO
WAS READ HIS CONSTITUTIONAL RIGHTS WHICH HE WAIVED AND
PROVIDED ACCOUNTS OF HIS PARTICIPATION OF A CAR-JACKING OF
A WHITE IN COLOR CADILLAC AT A CONEY ISLAND.
SUBJECT: BIJUAN [sic] WOODLEY WAS TAKEN OUTSIDE BY WRITER
FOR A CIGARETTE BREAK. SUBJECT WAS THEN BROUGHT BACK TO
THE INTERVIEW ROOM WHERE WRITER BEGAN QUESTIONING HIS
INVOLVEMENT IN THE CAR-JACKING. SUBJECT THEN STATE [sic]
THAT HE WAS PICKED UP IN A TRUCK AND THAT A LONG RIFLE WAS
ALREADY IN THERE. SUBJECT CONTINUE [sic] TO SAY THAT HE
KNEW THE VICTIM AND THAT HE HAD FIRST SEEN HIM AT THE GAS
STATION ACROSS THE STREET FROM THE CONEY ISLAND. SUBJECT
THEN STATED THAT THEY FOLLOWED THE VICTIM TO THE CONEY
ISLAND, WHERE HE, THE SUBJECT[,] WAS ARMED WITH A RIFLE AND
DEMANDED THE VICTIMS’ [sic] ITEMS AND VEHICLE. (ROBBING THE
VICTIM ITEMS: JEWELRY AND WALLET) SUBJECT THEN STATED
THAT THEY LEFT THE AREA, TAKING THE VICTIMS [sic] BELONGINGS
TO INCLUDE THE WHITE IN COLOR CHRYSLER 300 AND WAS
DROPPED OFF. SUBJECT REFUSED TO GIVE INFORMATION ON THE
OTHER INDIVIDUALS HE WAS PARTICIPATING WITH AND/OR ANY
INFORMATION OF THEIR IDENTITY.
SUBJECT INTERVIEW CONTINUED BY P.O. DILLION [sic] AND
DETECTIVE HOUSER.
SUBJECT WAS GIVEN AMPLE OPPORTUNITY TO TAKE A BREAK, GO
TO THE BATHROOM AND WAS NOT INTOXICATED NOR ON ANY
DRUGS AT THE TIME OF THE INTERVIEW.
WRITER COMPLETED THIS REPORT DUE TO THE AUDIO/VIDEO
EQUIPMENT MALFUNCTION. (NOTIFIED BY P.O. DILLION [sic] OF THE
MALFUNCTION)
The next morning, January 13, 2015, Woodley was taken to FBI headquarters, was
advised again of his Miranda rights, and, after waiving those rights a second time, was
interviewed by FBI Special Agent Michael FitzGerald. According to FitzGerald, Woodley told
him that he (Woodley) had been at a bar with his girlfriend during the early morning hours of
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December 30, 2014. When his girlfriend left to meet another individual, Woodley obtained a
ride in a Dodge Durango from an individual Woodley claimed he did not know. The two
occupants of the Durango and Woodley eventually drove to the parking lot of the Coney Island
restaurant where Woodley grabbed an assault rifle from the backseat of the Durango, approached
the passenger side of a white Chrysler 300, and tapped on the window of the Chrysler with his
weapon so that the driver of the Chrysler would lower the passenger window. At that time,
Woodley and another individual from the Durango forced the Chrysler’s driver from the vehicle,
got into the Chrysler, and drove it away. Later, Woodley met up with an individual named D.J.,
exchanged the Chrysler for D.J.’s BMW, and drove the BMW to Woodley’s girlfriend’s home.
By the time the FBI concluded its interrogation of Woodley, it was too late in the day to
have the defendant arraigned. As a result, Woodley did not appear before a magistrate judge
until January 14, 2015, two days after his arrest and six days after the return of the initial
indictment against him.
Eventually, the grand jury returned a first superseding indictment against Woodley. In
that subsequent charging instrument, the government re-alleged the two crimes with which
Woodley originally had been charged, but also charged the defendant with two additional
carjackings, each of which involved his use of a firearm.
Prior to trial, Woodley filed numerous motions, including a “Motion to Suppress
Statements and Evidence Taken in Violation of Defendant’s Sixth Amendment Right to
Counsel.” The district court denied that motion, and Woodley proceeded to trial where the
government introduced into evidence the defendant’s confessions, as well as cellphone-tracking
information that placed Woodley at the scene of the December 30 carjacking at the time of the
crime.
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The government eventually moved to dismiss all counts of the first superseding
indictment against Woodley, except for the two counts relating to the December 30 carjacking.
Those motions were granted, and after the jury convicted Woodley of the two remaining counts,
the district court sentenced Woodley to a below-Guidelines sentence of 24 months on the
carjacking count, to be served consecutively with an 84-month sentence for the use of a firearm
during and in relation to a crime of violence.
Woodley now appeals, raising two issues for our consideration. First, he contends that he
could not have knowingly waived his Sixth Amendment right to counsel without first being
informed that he already had been indicted for the carjacking crime. Thus, he argues that the
district court erred in denying his motion to suppress any evidence that flowed from his initial
interrogation. Second, Woodley argues for the first time on appeal that the government’s failure
to bring him before a magistrate judge “without unnecessary delay” rendered inadmissible any
incriminating statements or evidence elicited from him during his later confession to the FBI
agent.
DISCUSSION
Waiver of Sixth Amendment Right to Counsel
When ruling upon the propriety of a district court’s denial of a motion to suppress
evidence, we review factual determinations for clear error and legal conclusions de novo. United
States v. Pacheco, 841 F.3d 384, 389 (6th Cir. 2016). Moreover, we “must consider the evidence
in the light most favorable to the government.” United States v. Erwin, 155 F.3d 818, 822 (6th
Cir. 1998) (en banc).
In pertinent part, the Sixth Amendment to the Constitution of the United States provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of
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Counsel for his defence.” U.S. Const., amend. VI. “[A] person’s Sixth and Fourteenth
Amendment right to counsel attaches only at or after the time that adversary judicial proceedings
have been initiated against him”—“whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 688–89 (1972). Thus,
“once adversary proceedings have commenced against an individual, he has a right to legal
representation when the government interrogates him.” Brewer v. Williams, 430 U.S. 387, 401
(1977) (citing Massiah v. United States, 377 U.S. 201(1964)) (footnote omitted).
Here, Woodley was indicted for the December 30, 2014, carjacking on January 8, 2015.
As of that date, therefore, his Sixth Amendment right to the assistance of counsel attached.
However, there is no dispute that the questioning of Woodley on January 12 and 13, 2015,
occurred without counsel being present to advise Woodley. Thus, as was the Supreme Court in
Patterson v. Illinois, 487 U.S. 285 (1988), “we are called on to determine whether the
interrogation of [the defendant] after his indictment violated his Sixth Amendment right to
counsel.” Id. at 287.
In addressing this inquiry, we recognize that the Supreme Court long has held that a
criminal defendant may waive his or her Sixth Amendment right to counsel, even at a critical
stage of the proceedings. Johnson v. Zerbst, 304 U.S. 458, 464–65 (1938). Even so, reviewing
courts must be vigilant to ensure that any such waiver “reflects ‘an intentional relinquishment or
abandonment of a known right or privilege.’” Patterson, 487 U.S. at 292 (quoting Johnson, 304
U.S. at 464). Consequently, the key inquiry becomes: “Was the accused, who waived his Sixth
Amendment rights during postindictment questioning, made sufficiently aware of his right to
have counsel present during the questioning, and of the possible consequences of a decision to
forgo the aid of counsel?” Id. at 292–93.
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Answering that question, the Supreme Court in Patterson held:
As a general matter, then, an accused who is admonished with the warnings
prescribed by this Court in Miranda [v. Arizona, 384 U.S. 436, 479 (1966)], has
been sufficiently apprised of the nature of his Sixth Amendment rights, and of the
consequences of abandoning those rights, so that his waiver on this basis will be
considered a knowing and intelligent one.
Id. at 296 (footnote omitted). Specifically, the Court noted that the Miranda admonitions that a
defendant “had a right to consult with an attorney, to have a lawyer present while he was
questioned, and even to have a lawyer appointed for him if he could not afford to retain one on
his own” were sufficient to make a defendant aware of the right to have counsel present during
any postindictment questioning. Id. at 293. The Court also recognized that Miranda warnings
would serve to make an individual aware of the consequences of a decision to waive Sixth
Amendment rights by letting “petitioner know what a lawyer could ‘do for him’ during the
postindictment questioning: namely, advise petitioner to refrain from making any such
statements.” Id. at 293–94 (footnote omitted).
Woodley maintains, however, that his situation is different from that of the petitioner in
Patterson because Woodley was unaware at the time of his waiver of rights and questioning that
he was under federal indictment. In support of that position, Woodley directs us to the decision
of the Second Circuit in the pre-Patterson case of Carvey v. LeFevre, 611 F.2d 19 (2d Cir. 1979).
In Carvey, the Second Circuit ruled that “[w]ithout knowledge of a pending indictment, the
accused cannot appreciate the gravity of his legal position or the urgency of his need for a
lawyer’s assistance.” Id. at 22. Indeed, according to the court, “[h]ad he known that he was not
merely suspected of the crime but actually under indictment, Carvey might well have been more
circumspect in his replies and more insistent on his immediate right to counsel.” Id.
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Although there is some logical and emotional appeal to Woodley’s argument, we reject it
for two reasons. First, even the Court of Appeals for the Second Circuit has disavowed the
holding in Carvey in light of the Supreme Court’s pronouncement in Patterson. See United
States v. Charria, 919 F.2d 842, 847 (2d Cir. 1990). Second, the danger envisioned in Carvey—
answering questions without knowledge that the detainee was “not merely suspected of the crime
but actually under indictment”—is not present in this case because Woodley did not offer any
statements implicating himself in the carjacking until one hour after Dillon informed him that an
indictment had been returned against him.
In Patterson, the Supreme Court opted for “a more pragmatic approach to the waiver
question—asking what purposes a lawyer can serve at the particular stage of the proceedings in
question, and what assistance he could provide to an accused at that stage—to determine the
scope of the Sixth Amendment right to counsel.” Patterson, 487 U.S. at 298. Concluding that
there is no “substantial difference between the usefulness of a lawyer to a suspect during
custodial interrogation, and his value to an accused at postindictment questioning,” the Court
determined “that whatever warnings suffice for Miranda’s purposes will also be sufficient in the
context of postindictment questioning.” Id. at 298–99.
Because we are bound by settled Supreme Court precedent, and because nothing in the
record before us indicates that Woodley’s waiver of rights was not knowing and voluntary, we
conclude that the postindictment questioning of Woodley did not violate his Sixth Amendment
right to counsel. Woodley’s first issue on appeal is without merit.
Alleged Violation of Rule 5 of the Federal Rules of Criminal Procedure
For the first time on appeal, Woodley argues that the district court also erred in failing to
suppress statements and evidence related to the FBI’s interrogation of him on January 13, 2015.
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According to the defendant, that evidence must be suppressed because he was not brought before
a magistrate judge “without unnecessary delay,” as required by Federal Rule of Criminal
Procedure 5(a)(1)(A).
Because Woodley failed to file a motion to suppress this evidence on this ground in the
district court, we review his allegation for plain error. See, e.g., United States v. Doxey, 833 F.3d
692, 702 (6th Cir. 2016) (Keith, Clay, White), cert. denied, 137 S. Ct. 2204 (2017). Under the
plain-error standard, Woodley must establish: (1) error; (2) that is “plain”; and (3) that affects
substantial rights of the defendant. See United States v. Olano, 507 U.S. 725, 732–34 (1993).
Even if Woodley can establish each of those elements, we will correct a plain, forfeited error
only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Id. at 736 (citation omitted).
As explained by the Supreme Court in Corley v. United States, 556 U.S. 303, 306 (2009),
“[t]he common law obliged an arresting officer to bring his prisoner before a magistrate as soon
as he reasonably could.” That mandate now is found in Federal Rule of Criminal Procedure
5(a)(1)(A), which states explicitly that “[a] person making an arrest within the United States
must take the defendant without unnecessary delay before a magistrate judge, or before a state or
local judicial officer as Rule 5(c) provides, unless a statute provides otherwise.”
In an effort to add “teeth” to the requirement, the Supreme Court, in the exercise of its
supervisory authority, held that defendants’ confessions would be deemed inadmissible at trial
“when obtained during unreasonable presentment delay.” Corley, 556 U.S. at 307 (discussing
the holding in McNabb v. United States, 318 U.S. 332 (1943)). Then, in Mallory v. United
States, 354 U.S. 449, 455 (1957), the Court held a defendant’s confession inadmissible when it
was given seven hours after arrest but prior to presentment before a magistrate judge, even
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though the confession took place “within the vicinity of numerous committing magistrates.” The
principle that “generally rendered inadmissible confessions made during periods of detention that
violated the prompt presentment requirement of Rule 5(a)” thus came to be known as the
McNabb-Mallory rule. United States v. Alvarez-Sanchez, 511 U.S. 350, 354 (1994).
In passing 18 U.S.C. § 3501, Congress “modified McNabb-Mallory without supplanting
it.” Corley, 556 U.S. at 322. That statutory provision creates a six-hour “safe harbor,” deeming
any delay of six hours or less between arrest and presentment reasonable enough that any
confession given within that time frame will be admissible if “made voluntarily and if the weight
to be given the confession is left to the jury.” 18 U.S.C. § 3501(c). “If the confession occurred
before presentment and beyond six hours, however, the court must decide whether delaying that
long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the
confession is to be suppressed.” Corley, 556 U.S. at 322.
Woodley’s confession to FBI Agent FitzGerald on January 13 was made more than 15
hours after the defendant’s arrest, but still prior to the time he was taken before a magistrate
judge. Woodley thus argues that adherence to the McNabb-Mallory rule should have led the
district court to suppress any incriminating statements and evidence flowing from that second
admission of guilt. However, Sixth Circuit precedent holds that “waiver of one’s Miranda rights
also constitutes a waiver under McNabb-Mallory,” meaning that “[a] valid Miranda waiver also
waives the prompt judicial warning of one’s constitutional rights.” United States v. Barlow, 693
F.2d 954, 959 (6th Cir. 1982). Thus, the district court’s admission of Woodley’s pre-
arraignment FBI confession cannot be considered plain error despite the government’s failure to
bring the defendant before a magistrate judge within six hours of his arrest.
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Furthermore, any error, plain or otherwise, in the admission of Woodley’s second
confession, or of evidence obtained as a result of that confession, must be considered harmless
beyond a reasonable doubt. In his first, admissible confession, Woodley conceded that he was
complicit in the carjacking for which he was indicted. Moreover, at trial, the two victims of the
carjacking crime identified Woodley as the individual who held the assault rifle and forced them
from the Chrysler and onto the ground. There is, therefore, no merit to Woodley’s challenge to
the admissibility of his second confession.
CONCLUSION
The Supreme Court’s decision in Patterson makes clear that the knowing and voluntary
waiver of a defendant’s Miranda rights is sufficient to establish waiver of his right to counsel
during postindictment questioning. Furthermore, Sixth Circuit precedent establishes that
Woodley’s second waiver of his Miranda rights prior to his questioning by the FBI also
constituted a waiver under McNabb-Mallory, even though that questioning occurred more than
six hours after the defendant’s arrest. In the absence of any error in the admission of Woodley’s
confessions at trial, we AFFIRM the judgment of the district court.
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