United States v. Bobby Lee McKinley

84 F.3d 904, 1996 WL 269991
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 11, 1997
Docket95-1605
StatusPublished
Cited by24 cases

This text of 84 F.3d 904 (United States v. Bobby Lee McKinley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bobby Lee McKinley, 84 F.3d 904, 1996 WL 269991 (7th Cir. 1997).

Opinion

ILANA DIAMOND ROVNER, Circuit Judge.

After the district court denied his motion to suppress, Bobby Lee McKinley entered a conditional plea of guilty to the charge of causing altered securities (thirty-five American Express money orders) to be transported in interstate commerce in violation of 18 U.S.C. §§ 2 & 2314. In sentencing McKinley to a prison term of eighty-seven months, the district court departed upward from the applicable range under the Sentencing Guidelines after finding that McKinley’s criminal history category significantly underrepresented his actual criminal history. As *906 further support for its departure, the court pointed to the fact that McKinley had repeatedly involved vulnerable juvenile females in his criminal endeavors. In this appeal, McKinley challenges the denial of his motion to suppress and the propriety of the upward departure at sentencing. We affirm.

I.

A.

After his indictment on the current charges, McKinley moved to suppress incul-patory statements he had made to FBI Special Agent Charles G. Southworth in the course of an interview at a Minnesota prison on July 18, 1994. A magistrate judge conducted a hearing on McKinley’s motion and issued findings of fact and conclusions of law which were adopted by the district judge. The facts described here are largely undisputed and are based on the factual findings of the lower courts.

Early in 1994, Agent Southworth learned from local authorities that someone had cashed forged money orders in Eau Claire, Wisconsin. Southworth began investigating and learned that thirty-five American Express money orders had been cashed and that the face amount of each had been changed from $3.00 to $300.00. McKinley soon became a suspect, and Southworth learned that McKinley was then jailed in Tennessee on unrelated state charges. As a result, Southworth sent a communication to the FBI’s office in Jackson, Tennessee, asking an agent there to attempt to contact McKinley. In late May or early June 1994, Agent Gary Boutwell called Southworth to report his findings. 1 Boutwell had learned that McKinley was being held on state forgery and impersonation charges relating to his use of a false credit card. At McKinley’s arraignment on those charges, the Tennessee court had appointed Pam Drewery, a public defender, to represent him, and Boutwell had contacted Drewery on May 27, 1994. The agent first informed Drewery that the FBI was investigating McKinley in connection with altered money orders cashed in Wisconsin, and he asked Drewery for permission to interview McKinley. Drewery responded that at that time, she did not want her client interviewed by the FBI with regard to the encashment of altered money orders or any other matter. She told Boutwell, however, that she would inform him when her representation of McKinley ended.

Near the end of June or the beginning of July 1994, Boutwell called Southworth with an update. Boutwell reported that he had received a call from Drewery on the 21st or 22nd of June informing him that the Tennessee case had been adjudicated and that her representation of McKinley had ended. At about the same time, Boutwell also had received a call from McKinley himself, who expressed an interest in speaking with the agent. Southworth could not recall, however, whether Boutwell had been available when McKinley called or whether the agent had only received a message to that effect. 2 Boutwell finally told Southworth that McKinley had been transferred out of Tennessee and that Boutwell had been unable to speak with him before the transfer.

Southworth subsequently learned that McKinley had been transferred to a state prison in Stillwater, Minnesota. Southworth then called the Minnesota prison and spoke to Allan Kirschner, McKinley’s ease manager. The agent described the nature of his investigation and asked Kirschner to inquire whether McKinley would be willing to speak with him. McKinley apparently realized that he had no obligation to speak with South-worth, but he indicated to Kirschner that he knew of the FBI’s investigation and that he would be willing to speak with the agent. Kirschner relayed this information to South-worth.

Southworth traveled to Stillwater to meet with McKinley on July 13, 1994. 3 McKinley *907 was being held in the prison’s segregation unit, which meant that he was confined to his cell except for occasional visits to the shower and the exercise yard. Under prison policy, segregation prisoners were handcuffed when transferred to or from those locations, although the cuffs would be removed upon arrival. If a segregation prisoner was required to leave his cell for any other reason, he would be cuffed the entire time. As a result, McKinley was handcuffed during his interview with Southworth on July 13. That interview took place in a large conference room furnished with a table and chairs. The conference room had windows to the outside and a window in the door. Kirsehner attended the interview and was seated at the head of the table. McKinley was seated across from Southworth. Southworth never explicitly told McKinley that he was free to leave the conference room, although he indicated that if McKinley terminated the meeting, Southworth would leave. McKinley never asked to leave or to terminate the meeting, nor did he request any food or beverage.

The meeting between Southworth and McKinley lasted forty-six minutes, and Kir-schner likened their exchange to a tennis match, with each attempting to achieve his own goals. After Southworth described for McKinley the evidence he had gathered, McKinley explained that he had heard much of this before. He told Southworth that deputies from a Minnesota sheriffs department had already confronted him at Stillwater, which had prompted McKinley to contact an attorney. Southworth asked whether McKinley was currently represented or whether he wanted an attorney present, and McKinley responded “no” to both queries. Southworth eventually advised McKinley of his Miranda rights and presented him with a preprinted waiver form. Southworth read the form to McKinley, who then appeared to read it himself. McKinley signed the form and then made incriminating statements about the Eau Claire money orders.

The district court refused to suppress these statements for three reasons. First, the court rejected McKinley’s contention that Drewery had invoked his right to counsel in all future discussions about the altered money orders when she informed Boutwell on May 27 that she did not want the FBI talking to McKinley about the altered money orders or any other matter. The court found that Drewery had only invoked McKinley’s right to silence at that time. The court found, moreover, that even if Drewery’s statement could be construed as a continuing invocation of the right to counsel, McKinley had subsequently waived that right when he called Boutwell and expressed an interest in speaking with him. In so finding, the court rejected McKinley’s contention that the government’s proof on this point was inadequate because it was based on double hearsay offered only through Southworth.

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Bluebook (online)
84 F.3d 904, 1996 WL 269991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bobby-lee-mckinley-ca7-1997.