[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 8, 2008
No. 07-15714 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-60149-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 8, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Ricky Jackson appeals his conviction for possession of a firearm by a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal,
Jackson argues that the district court erred in denying his motion to suppress
statements made by Jackson to federal agents, because his Sixth Amendment right
to counsel had attached in a state proceeding for the same offense, and, therefore,
the federal agents violated his Sixth Amendment rights when they questioned him
at length. We conclude that Jackson’s right to counsel had not attached in the
federal case against him when he made incriminating statements to federal
authorities, thus his Sixth Amendment right to counsel was not violated.
Moreover, Jackson had initiated that conversation with federal agents. Thus, the
district court did not err when it denied Jackson’s motion to suppress those
statements. Accordingly, we AFFIRM.
I. BACKGROUND
Jackson was indicted for possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Jackson filed a pre-trial motion to
suppress physical evidence seized on 3 April 2007 and 21 June 2007, as well as
statements that he made to law enforcement officers on 3 April 2007, 1 June 2007
and 21 June 2007, and also requested an evidentiary hearing. Jackson argued in
his motion that his statements made to federal agents on 1 June 2007 during the
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canvassing of his neighborhood and after his arrest on federal charges on 21 June
2007 are inadmissible, since they were made after his Sixth Amendment right to
counsel had attached in a state case based upon the same offense. Jackson also
raised arguments concerning the admissibility of evidence seized and statements
made to Florida state police officers on 3 April 2007, which are not raised on
appeal.
At the evidentiary hearing before a magistrate judge concerning Jackson’s
motion to suppress, Florida Police Officer Aaron Burk testified that on 3 April
2007 he went to the area of Jackson’s residence in response to a 911 call
concerning a gun being fired outside of a residence. Officer Burk testified that
Jackson flagged him down, and following a conversation concerning a .38 that
Jackson said he had shot in the air, Jackson was placed in handcuffs and advised of
his Miranda1 rights, which Jackson waived. The officer said Jackson consented to
a search with Jackson of his residence for injured persons, during which the officer
saw the grip of a shotgun protruding from underneath the bedsheets. A
background check by the officer revealed Jackson was a convicted felon. Jackson
went to state court the day after the shooting, was appointed counsel to represent
him in the pending state matter on 16 May 2007, and the state charges were not
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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dismissed until 29 June 2007.
Federal Special Agent DeVito testified that, during her investigation of
Jackson for the Bureau of Alcohol , Tobacco, Firearms and Explosives (“ATF”) for
a firearms violation by a felon, she went to Jackson’s neighborhood on 1 June 2007
to canvas the neighbors concerning the shooting described above, without
intending to contact the defendant. Agent DeVito testified that, while she was
speaking to the neighbor who lived directly across from Jackson, Jackson exited
his residence and approached the group. She testified that she did not call him over
to them, and when he was a few feet away she asked him whether he was Ricky
Jackson, which he confirmed. Agent DeVito identified herself as an agent with the
ATF and told him they were in the neighborhood to find out if anyone had
witnessed what happened April 3rd regarding a shooting in his backyard, to which
he replied “oh, you mean, when I shot in my backyard?” R3 at 51-52. Agent
DeVito testified that he admitted to shooting a shotgun into the air, hiding the gun
completely under his bedspread, speaking to police officers that arrived on the
scene, and allowing them to go into his house to look for injured people, after he
had initially refused saying they needed a search warrant to go in the house. He
also told her that the police officers found the gun during the walk-through. She
did not take him into custody during this conversation, which primarily took place
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in front of his residence. Jackson invited the federal agents into his backyard and
residence to show them how and where the events of April 3rd had occurred.
Agent DeVito testified that (1) she did not ask him whether he had a lawyer, (2)
call his lawyer, or (3) advise him he had the right to have a lawyer present while
she questioned him, and it did not occur to her that he may have a lawyer until after
she left his residence, although she was aware there was a state proceeding going
on against him.
Agent DeVito also testified concerning the arrest of Ricky Jackson on
federal charges on 21 June 2007, stating that, after he was taken into custody by
the ATF, he was advised of his rights, which he waived by signing a form. Agent
DeVito testified that, following the execution of the form, Jackson did not indicate
that he no longer wished to speak with police. She testified that, while Jackson
was in custody, he discussed in more detail the events on the night of the shooting,
describing how he shot his shotgun into the air once to scare loiterers away, that he
made up the story he told to the Florida police officers about having a .38, how he
agreed to allow the police officers to go into his house to look for injured people,
and that he also saw a portion of the shotgun sticking out of the bedspread when he
went through the house with the police officer. She testified that Jackson told the
federal agents about two boxes of ammunition he had purchased and signed a form
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consenting to the search of his residence for the ammunition, which federal agents
retrieved from his residence.
Jackson testified that when Agent DeVito visited his neighborhood on 1
June 2007, he walked over to Agent DeVito to get a closer look at her. He said
that, when he walked over to Agent DeVito, she asked him whether he minded
answering a few questions, and he said he would answer any question she wanted.
When Jackson was asked about signing the waiver form given to him by federal
agents on 21 June 2007, Jackson testified that he would do anything with her, and
that, yes, he signed the form.
At the hearing Jackson, through counsel, argued that the statements he made
to federal agents must be suppressed, since the federal and state charges were
identical and concerned the same offense, his right to counsel attached to the
offense and the federal agent knew or should have known that he was already
represented by counsel for this offense. Jackson also argued that it was not
sufficient to “Mirandize” him on 21 June 2007, since he was represented by
counsel, and they should have specifically discussed the fact he had a lawyer and
ask him whether he wanted that lawyer present. Id. at 131-132. In a “Notice of
Supplemental Authority in Support of Motion to Suppress,” which was filed after
the evidentiary hearing, Jackson noted that the Supreme Court held in Texas v.
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Cobb, 532 U.S. 162, 172-173, 121 S. Ct. 1335, 1343 (2001), that the Sixth
Amendment right to counsel attaches to offenses that, even if not formally charged,
would be considered the same offense under Blockburger v. United States, 284
U.S. 299, 304, 52 S. Ct. 180, 182 (1932).
The magistrate issued a report and recommendation (“R&R”),
recommending, among other matters, the denial of Jackson’s motion to suppress
his statements to federal agents on 1 June 2007 and 21 June 2007, since Jackson’s
right to counsel had attached only in connection with the state charges and Jackson
had initiated the June 1 conversation with the federal agents. Jackson objected to
the magistrate judge’s findings, arguing that at the time he was questioned by
federal agents his right to counsel had attached in connection with the state and
federal charges, since both charges had essentially the same elements. The
government responded, urging the application of dual sovereignty to the Sixth
Amendment right to counsel issue.
The district court adopted the R&R and denied Jackson’s motion to
suppress, since his right to counsel had only attached in the state case. Jackson
pled guilty in the federal case to possession of a firearm by a convicted felon,
reserved the right to appeal the adverse determination of his Motion to Suppress,
and was sentenced to 180 months of imprisonment.
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II. DISCUSSION
On appeal, Jackson argues that the district court erred in denying his motion
to suppress statements made by Jackson to federal agents, since his Sixth
Amendment right to counsel had attached in a state proceeding for the same
offense; therefore, the federal agents violated his Sixth Amendment rights when
they questioned him at length about the same offense. Jackson notes that the
Second Circuit held that “[n]owhere in Cobb, either explicitly or by imputation, is
there support for a dual sovereignty exception to its holding that when the Sixth
Amendment right to counsel attaches, it extends to offenses not yet charged that
would be considered the same offense under Blockberger,” United States v. Mills,
412 F.3d 325, 330 (2d Cir. 2005). Jackson recognizes that his position is barred by
our holding in U.S. v. Burgest, 519 F.3d 1307, 1310 (11th Cir. 2008); however, he
raises it on appeal in order to preserve it for further review by the Supreme Court.
When considering a district court’s denial of a motion to suppress, we
review its findings of fact for clear error and its application of the law to those facts
de novo. United States v. Newsome, 475 F.3d 1221, 1223 (11th Cir.) (per curiam),
cert. denied, 128 S. Ct. 218 (2007). We construe all facts in the light most
favorable to the prevailing party, in this case, the government. Id. at 1223-24. Any
evidence obtained by unconstitutional searches and seizures is inadmissible. Mapp
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v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691 (1961). Although the doctrine
initially was applied in the context of the Fourth Amendment, it also applies to
evidence seized in contravention of the Fifth and Sixth Amendments. United
States v. Terzado-Madruga, 897 F.2d 1099, 1113 (11th Cir. 1990).
“The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the
accused shall enjoy the right ... to have the Assistance of Counsel for his defence.’”
See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 2207 (1991)
(quoting U.S. Const. amend. VI). The Sixth Amendment right to counsel “is
offense specific.” McNeil, 501 U.S. at 175, 111 S. Ct. at 2207. “It cannot be
invoked once for all future prosecutions, for it does not attach until a prosecution is
commenced, that is, at or after the initiation of adversary judicial criminal
proceedings – whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.” Id. (quotations and citations omitted).
“Incriminating statements pertaining to other crimes, as to which the Sixth
Amendment right has not yet attached, are, of course, admissible at a trial of those
offenses.” Id. at 176, 111 S. Ct. at 2208 (quotations and citations omitted).
“[W]here conduct violates laws of separate sovereigns, the offenses are distinct for
purposes of the Sixth Amendment right to counsel.” United States v. Burgest, 519
F.3d 1307, 1310 (11th Cir. 2008) (holding that questioning by federal agents did
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not violate the defendant’s Miranda rights, because, at the time of the questioning,
he had only been charged under state law, not federal law). In Burgest, we adopted
the First Circuit’s reasoning in United States v. Coker, 433 F.3d 39, 44 (1st Cir.
2005):
[a]fter carefully examining Cobb, we conclude that the dual
sovereignty doctrine applies for the purposes of defining what
constitutes the same offense in the Sixth Amendment right to counsel
context. In doing so, we reject the reasoning of the Second Circuit in
Mills and adopt the reasoning of the Fifth Circuit in Avants. The
court in Mills stated that “[n]owhere in Cobb, either explicitly or by
imputation, is there support for a dual sovereignty exception” in the
Sixth Amendment right to counsel context. Mills, 412 F.3d at 330.
This statement, in our view, does not give adequate consideration to
the Court’s statement that it saw “no constitutional difference between
the meaning of the term ‘offense’ in the contexts of double jeopardy
and of the right to counsel.” Cobb, 532 U.S. at 173, 121 S. Ct. 1335,
149 L.Ed.2d 321. If the Court intended to incorporate only the
Blockburger test into its Sixth Amendment jurisprudence, then its
statement in Cobb would make no sense, as there would be a
difference in the meaning of the term “offense” in the contexts of
double jeopardy and of the right to counsel.
519 F.3d at 1310. In a later case, we cited Burgest in holding that the defendant’s
statements to federal agents, after he had been assigned an attorney for state
charges, need not be suppressed, since under Burgest the dual sovereignty doctrine
applied; therefore, his Sixth Amendment counsel rights had not been violated.
United States v. Harris, 526 F.3d 1334, 1340 (11th Cir. 2008) (per curiam).
In the absence of questioning by law enforcement, the we have held that
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“[v]oluntary and spontaneous comments by the accused, even after Miranda rights
are asserted, are admissible evidence.” Cannady v. Dugger, 931 F.2d 752, 754
(11th Cir. 1991). Further, “[i]ncriminating statements made in the course of casual
conversation are not products of a custodial interrogation.” United States v.
Satterfield, 743 F.2d 827, 849 (11th Cir. 1984). We will consider a
communication initiated by the accused where the accused’s agent approaches the
police. See United States v. Gonzalez, 183 F.3d 1315, 1324 (11th Cir. 1999)
(finding no Sixth Amendment violation), overruled on other grounds, United States
v. Diaz, 248 F.3d 1065, 1107 (11th Cir. 1999).
In this case, it is undisputed that Jackson’s Sixth Amendment right to
counsel attached to the state court proceeding for the felon-in-possession of a
firearm charge at the time the federal agents interviewed him on 1 June 2007 and
21 June 2007; however, Jackson’s prior right to counsel for the charged state
offense did not attach to Jackson’s uncharged federal felon-in-possession of a
firearm charge, since the federal offense was separate from the state offense under
the dual sovereignty doctrine, which Burgest held applies in the Sixth Amendment
context. 519 F.3d at 1310. Consequently, the district court did not err when it
admitted (1) Jackson’s statements to Agent DeVito on 1 June 2007, (2) his
statements to federal agents on 21 June 2007, and (3) the ammunition federal
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agents seized from his home, since Jackson’s Sixth Amendment rights had not yet
attached to the federal offense the agents were investigating.
Assuming, arguendo, that we were to conclude that the district court erred in
finding that Jackson’s Sixth Amendment right to counsel had not attached to the
federal offense, we would hold that the district court did not err in denying
Jackson’s motion to suppress his incriminating statements to Agent Devito on 1
June 2007, since his statements were otherwise admissible. Jackson’s statements
to Agent Devito on 1 June 2007 may be considered under our ruling in Gonzalez,
since Jackson, on his own initiative, approached Agent Devito, who identified
herself as a federal agent. 183 F.3d at 1324. His voluntary and spontaneous
incriminating statements during that conversation are admissible under Cannady.
931 F.2d at 754. Additionally, since this conversation was not the product of a
custodial interrogation—during the entire conversation he was free to leave and at
no time did he indicate he wished to end the conversation – the incriminating
statements he made during that conversation are admissible under Satterfield. 743
F.2d at 849.
Finally, even if we were to conclude that the district erred in denying
Jackson’s motion to suppress his incriminating statements, the error was harmless
beyond a reasonable doubt. See United States v. Turner, 871 F.2d 1574, 1581-82
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(11th Cir.1989). In light of the record, even in the absence of his statements to
federal agents, the evidence against Jackson would have been sufficient to support
his conviction. Jackson does not challenge on appeal that a Florida police officer
found a shotgun in plain view in Jackson’s apartment during a voluntary search of
his apartment and a record check established that Jackson was a felon. Thus,
because the record demonstrates that the evidence of guilt was overwhelming, any
error in admitting Jackson’s statements to federal agents was harmless.
III. CONCLUSION
For the reasons stated above, we hold that the district court did not err when
it denied Jackson’s motion to suppress incriminating statements that he made to
federal agents. Accordingly, we AFFIRM.
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