UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4539
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARLON CHRIS TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, Senior
District Judge. (2:10-cr-00192-JBF-TEM-1)
Submitted: November 22, 2011 Decided: December 7, 2011
Before KING, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David Charles Masselli, MASSELLI PC, Arlington, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Cameron M.
Rountree, Special Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marlon Chris Taylor appeals from his conviction for
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006). Taylor contends that the district
court erred in failing to suppress certain statements he made
concerning the firearm to ATF Task Force Officer Benjamin Newman
as well as the firearm itself. He also contends that the
district court improperly declined to instruct the jury on his
proffered justification defense. For the reasons stated within,
we affirm.
In May 2010, Taylor’s former girlfriend (and next-door
neighbor) reported to the Portsmouth, Virginia police that
Taylor broke into her home and raped her. Police officers were
dispatched to Taylor’s residence. Upon their arrival, Taylor
attempted to flee but was subdued in his backyard. Officers
then entered his home to ensure that other individuals were not
present. They did not report finding a firearm during this
sweep. Officers then transported Taylor to the police station
to be interviewed, where he was advised of his Miranda rights.
Taylor invoked his right to counsel, whereupon the interview
ceased. Subsequently, officers obtained arrest warrants for
Taylor on numerous state charges, as well as a search warrant
for his residence. The search warrant application did not refer
to the prior sweep of the residence. In executing the search
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warrant, the officers found the handgun that is the subject of
this prosecution.
Taylor was held in state custody continuously pending
trial on the state charges until November 2010, when those
charges were nolle prossed in favor of federal prosecution.
Immediately upon Taylor's release from state custody, Officer
Newman arrested Taylor on the federal charge and transported him
to the United States Marshals Service Office. While
transporting him, Officer Newman advised Taylor of his Miranda
rights and asked whether he would like to talk “about the
situation without a lawyer present.” Taylor stated he was
willing to talk, and explained that he possessed the firearm in
question only for a “few minutes” and only as a result of an
argument with his former girlfriend. He stated further that she
“had the firearm in her waistband and showed it” to him as they
argued, but that she “wasn’t pointing it at him or threatening
him with it but she was just holding onto it.” At some point in
the argument, Taylor stated, he knocked the weapon from her
hands and placed it atop a kitchen cabinet. He further advised
Newman that he did not know how the firearm ended up at his
residence.
By pretrial motion, Taylor sought to suppress the
statements he made to Officer Newman as well as the firearm
itself. Specifically, Taylor contended that (1) Officer Newman
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did not advise him of his Miranda rights before questioning him,
and (2) the firearm was improperly obtained during the
warrantless sweep of his residence immediately following his
arrest (rather than during the execution of the search warrant).
After conducting a hearing at which several police officers and
Taylor testified, the district court denied the motion. The
district court credited the testimony of the officers, and found
specifically that Officer Newman properly advised Taylor of his
Miranda rights during Taylor’s transfer into federal custody.
At trial, Taylor asked the court to instruct the jury
on a justification defense. After hearing arguments, the court
declined to give the instruction. The jury found Taylor guilty.
Taylor now appeals.
Taylor, in a shift in theory on appeal, first contends
that he timely and unambiguously invoked his Miranda right to
counsel while in state custody, that there was no cognizable
break in custody when he was released into federal custody to
Officer Newman, and that he did not initiate communication with
Newman. Thus, he contends, his statements to Newman should have
been suppressed. See Edwards v. Arizona, 451 U.S. 477 (1981);
Maryland v. Shatzer, 130 S. Ct. 1213 (2010). We agree with the
government, however, that Taylor has waived this argument by
failing to raise it as a distinct ground in support of his
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motion to suppress. See United States v. White, 584 F.3d 935
(10th Cir. 2009), cert. denied, 130 S. Ct. 1721 (2010):
Rule 12(b)(3)(C) of the Federal Rules of
Criminal Procedure requires that a party raise a
motion to suppress before trial. A party who fails to
do so “waives any Rule 12(b)(3) defense, objection, or
request,” although “[f]or good cause, the court may
grant relief from the waiver.” Fed.R.Crim.P. 12(e).
This waiver rule applies not only when a defendant
fails to file any pretrial motion to suppress, but
also when a defendant fails to assert a particular
argument in a pretrial suppression motion that he did
file . . . . To avoid waiving a particular argument,
the party must make “sufficiently definite, specific,
detailed and nonconjectural factual allegations
supporting his suppression claim” in his pretrial
motion.
Id. at 948 (emphasis added; citations omitted); see also United
States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005)(“Therefore,
in the context of a motion to suppress, a defendant must have
advanced substantially the same theories of suppression in the
district court as he or she seeks to rely upon in this Court.”);
United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976)(“The
Government very properly points out that the failure to assert a
particular ground in a pre-trial suppression motion operates as
a waiver of the right to challenge the subsequent admission of
evidence on that ground.”), cert. denied, 430 U.S. 906 (1977).
We can discern no good cause for Taylor’s failure to have raised
this issue below; accordingly, we decline to consider it on
appeal.
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Taylor next challenges the district court’s decision
not to suppress the firearm found in his residence. We review
the district court’s findings of fact for clear error and its
legal conclusions de novo. United States v. Uzenski, 434 F.3d
690, 704 (4th Cir. 2006). Taylor’s argument -- that the firearm
was actually found during the sweep of his residence following
his arrest, which he contends was illegal -- is not persuasive.
Taylor offers no reason to upset the court’s findings that the
pre-warrant sweep of his residence was limited to ensuring that
no one else was present, and that the firearm was found when
officers were executing a search warrant that did not refer to
the prior sweep.
Finally, Taylor contends that the district court erred
in declining to give a justification instruction. “A district
court commits reversible error in refusing to provide a
proffered jury instruction only when the instruction “(1) was
correct; (2) was not substantially covered by the court's charge
to the jury; and (3) dealt with some point in the trial so
important, that failure to give the requested instruction
seriously impaired the defendant's ability to conduct his
defense.” United States v. Passaro, 577 F.3d 207, 221 (4th Cir.
2009) (internal quotation marks omitted), cert. denied, 130 S.
Ct. 1551 (2010). This court “review[s] the district court’s
decision to give or refuse to give a jury instruction for abuse
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of discretion.” Id. To be entitled to a required instruction,
the party must establish a sufficient evidentiary foundation.
United States v. Lewis, 53 F.3d 29, 33 n.8 (4th Cir. 1995).
The court did not err in declining to give the
justification instruction. To be entitled to the instruction,
Taylor was required to “produce evidence which would allow the
factfinder to conclude” that, among other things, he was under
an “unlawful and present threat of death or serious bodily
injury,” that he did not “recklessly place himself in a
situation where he would be forced to engage in” the conduct,
and that he “had no reasonable legal alternative.” United
States v. Ricks, 573 F.3d 198, 202 (4th Cir. 2009) (internal
quotation marks omitted). The only evidence Taylor offered as a
basis for the instruction, however, was his statement to Officer
Newman that his former girlfriend had the firearm in her
waistband, and that he did not feel threatened by her. As the
district court cogently reasoned, such evidence, even if
accepted by the jury, does not provide a sufficient foundation
for the instruction.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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