United States v. Mosley

353 F. App'x 49
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 24, 2009
DocketNos. 06-1478, 06-2740, 08-3054
StatusPublished
Cited by2 cases

This text of 353 F. App'x 49 (United States v. Mosley) 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. Mosley, 353 F. App'x 49 (7th Cir. 2009).

Opinion

ORDER

While on supervised release for a 1999 fraud conviction, Derrick Mosley tried to extort money from gospel artist DeLeon Richards-Sheffield, the wife of former New York Yankees player Gary Sheffield. [51]*51Mosley’s attempt led both to the revocation of his supervised release and to new federal convictions for using interstate communications to extort money, 18 U.S.C. § 875(d), and wire fraud, id. § 1343. In these consolidated appeals Mosley challenges the new convictions and the term of reimprisonment he received on revocation of his supervised release.

Mosley’s extortion scheme started with a November 2004 e-mail to Riehards-Shef-field. There he asserted that he possessed a video tape of her having sex with singer-songwriter Robert “R.” Kelly. When Mosley did not receive a reply to his email, he phoned the Yankees’ media-relations department; someone there referred him to Rufus Williams, Sheffield’s agent and manager, and Williams in turn contacted the FBI.

Over the next ten days Williams, now cooperating with the FBI, recorded a series of phone conversations and meetings with Mosley, a self-described minister and community activist. Mosley expressed moral outrage about the tape and asserted that he was worried that disclosure could hurt Richards-Sheffield’s reputation. He opined that she desperately needed spiritual counseling, which he (conveniently) could provide — along with the tape — for $20,000. Mosley reminded Williams that anyone else might have sold the tape to a tabloid, and he threatened to “move forward” if a deal was not struck. He was arrested after giving Williams the number of an account to which he wanted the money wired.

At his trial in November 2005, Mosley did not present any evidence. His lawyer argued that Williams had misunderstood Mosley’s intentions, which were only to help Richards-Sheffield. The jury found the government’s story more persuasive and convicted Mosley; he was sentenced in January 2006 to 27 months in prison and five years of supervised release. The district court ordered Mosley to undergo a mental-health evaluation as a special condition of supervision. Meanwhile, the new convictions prompted the government to move to revoke Mosley’s supervised release from his 1999 bank fraud conviction. A different judge of the district court obliged in June 2006 and imposed a sentence of 15 months in prison and two years’ supervised release; the prison term was to run consecutively to the new sentence, and the supervised release was to be concurrent with Mosley’s supervision on the new convictions. Mosley completed the consecutive prison terms in February 2008 and has started his terms of supervised release.

Mosley is acting pro se in these appeals, but in the district court he was represented by appointed counsel. In the first of his four challenges to the new convictions, Mosley argues that the district court erred in denying his lawyer’s two, ex parte requests for authorization to hire a private investigator. See 18 U.S.C. § 3006A(e). The district court had rejected the requests for several reasons: Mosley, it found, was exaggerating the scope of the charges; he was capable of investigating the case without help; and he had failed to furnish adequate proof of his indigence. Mosley then resubmitted essentially the same skeletal request but with financial information and a list of twelve people he wanted interviewed; the court again denied the motion. It commented that Mosley could hire an investigator himself with the $40,000 in currency that he admitted having in his apartment.

Our review is for abuse of discretion. United States v. King, 356 F.3d 774, 778 (7th Cir.2004). Under the Criminal Justice Act, courts may authorize additional services that are “necessary for adequate representation.” 18 U.S.C. § 3006A(e)(1); [52]*52see United States v. Smith, 502 F.3d 680, 686 (7th Cir.2007), cert. denied, 552 U.S. 1206, 128 S.Ct. 1270, 170 L.Ed.2d 105 (2008). An indigent defendant wanting to hire an investigator must first provide a specific statement explaining the need, United States v. Knox, 540 F.3d 708, 718 (7th Cir.2008), cert. denied, — U.S.-, 129 S.Ct. 1525, 173 L.Ed.2d 656 (2009); United States v. Goodwin, 770 F.2d 631, 634 (7th Cir.1985). If he does so, the court must then assess whether an investigator is likely to help the defendant establish a “plausible defense.” See United States v. Winbush, 580 F.3d 503, 509-10 (7th Cir.2009). These requirements ensure that the government is not asked to fund a “fishing expedition.” Knox, 540 F.3d at 719.

The district judge did not abuse his discretion in denying Mosley’s two requests. Mosley never explained how an investigator could help his case other than to relieve counsel of the task of interviewing potential witnesses. All but a few of the twelve people he had identified had no conceivable link to a plausible defense. Among them were the intended extortion victim and her mother, as well as three persons who possessed the video tape pri- or to Mosley’s arrest; Mosley has yet to explain how sending an investigator to interview those persons could have helped him convince the jury that his intentions were misunderstood. This was an uncomplicated case, and Mosley supplied most of the evidence with his e-mail and recorded statements. Under the circumstances, there is no reason to disturb the district court’s ruling.

Mosley’s second argument is that the district court should have suppressed an oral statement that he made immediately after his arrest. When FBI agents arrested Mosley at his apartment, Special Agent Timothy Keese told Mosley that the charges related to a sex video of Richards-Sheffield and asked for consent to look for the tape. Mosley, who had not yet received Miranda warnings, refused to give consent and added that he “already destroyed the tape.” Later at the FBI office Mosley talked to Agent Keese at length, during an interview that was preceded by Miranda warnings and was not challenged at trial.

Mosley argued that his comment to Special Agent Keese was a response to a pre-Miranda, custodial interrogation, but the district court rejected that contention. We agree with that conclusion; a request for consent to search does not constitute interrogation because it is not likely to elicit an incriminating response. See, e.g., United States v. Bustamante, 493 F.3d 879, 892 (7th Cir.2007); United States v. McClellan, 165 F.3d 535, 544 (7th Cir.1999). Since there was no dispute about the underlying facts, there was also no need for an eviden-tiary hearing before the court ruled on his motion. See United States v. Walker,

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Bluebook (online)
353 F. App'x 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mosley-ca7-2009.