F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 5 1998 TENTH CIRCUIT PATRICK FISHER Clerk UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4130 (District of Utah) MOUNIR NAFKHA, (D.C. No. 95-CR-220C)
Defendant-Appellant,
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WASHINGTON LEGAL FOUNDATION; AMERICANS FOR EFFECTIVE LAW ENFORCEMENT; INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE; CITIZENS FOR LAW AND ORDER; JUSTICE FOR ALL; LAW ENFORCEMENT ALLIANCE OF AMERICA; SAFE STREETS COALITION; CRIMINAL JUSTICE LEGAL FOUNDATION,
Amici Curiae.
ORDER AND JUDGMENT *
Before KELLY, HOLLOWAY, and HENRY, Circuit Judges.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Defendant Mounir Nafkha was convicted on five counts of armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d); four counts of carrying and
using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c); and
two counts of possessing a firearm after a felony conviction, in violation of 18
U.S.C. § 922(g). The charges against Mr. Nafkha stemmed from a series of five
bank robberies in the Salt Lake City area.
After his arrest, Mr. Nafkha was interrogated by FBI Special Agent
Michael S. Rankin and Salt Lake City Police Detective David Glen Timmerman.
On appeal, Mr. Nafkha argues that (1) the confession obtained from that
interrogation was involuntary and inadmissible at trial; (2) the five bank robbery
counts were impermissibly joined in one indictment, and the felon-in-possession
counts should not have been joined with the other counts; and (3) the district
court failed to take proper corrective action after admitting prejudicial and
inadmissible hearsay. We exercise jurisdiction under 28 U.S.C. § 1291 and
affirm.
2 DISCUSSION
I. Confession
Mr. Nafkha contends that his confession was involuntary and inadmissible
under Miranda v. Arizona, 384 U.S. 436 (1966), and related cases. 1 Whether a
statement was voluntary is a question of law subject to de novo review, although
we accept the district court’s factual findings unless they are clearly erroneous.
See United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996). However,
one of Mr. Nafkha’s Miranda objections — that relating to the officers’ initial
failure to administer Miranda warnings — will be reviewed only for plain error
because Mr. Nafkha did not raise the issue in the district court. See Fed. R. Crim.
P. 52(b).
A. Initial Failure to Administer Miranda Warnings
Mr. Nafkha first contends that his interrogation statements were
inadmissible because he was initially questioned without the benefit of Miranda
warnings. Before Mr. Nafkha was advised of his Miranda rights, he was asked
1 The disposition of this appeal does not require us to consider whether 18 U.S.C. § 3501 overrules Miranda. As in our prior cases, the confession here was obtained in full compliance with Miranda and related cases, making consideration of section 3501 unnecessary. Moreover, the outcome in this case is governed by the Supreme Court’s “totality of the circumstances” test under Miranda, see, e.g., Colorado v. Spring, 479 U.S. 564, 573-74 (1986), which does not differ from the analysis amici would have us employ under section 3501.
3 whether officers would be in danger if they entered a motel room where suspected
bank robbers were believed to have been staying; Mr. Nafkha answered no. See
Aplt’s App. III, at 11 (Magis. J.’s Rep. & Rec., dated Apr. 5, 1996) [hereinafter
“Rep. & Rec.”]; see also Tr. of Suppr. Hr’g (Feb. 13, 1996) at 8 [hereinafter
“Suppr. Tr.”]. After Mr. Nafkha was advised of his Miranda rights, he was asked
about the latest bank robbery, and he implicated himself and others in that
robbery and in four others. See Rep. & Rec. at 11-13; see also Suppr. Tr. at 15-
25.
Mr. Nafkha’s statement about the motel room was not obtained in violation
of Miranda because no evidence of that statement was admitted at trial. See
Miranda, 384 U.S. at 439 (“[W]e deal with the admissibility of statements . . . .”).
Nor were Mr. Nafkha’s post-warning statements inadmissible merely because of
the initial failure to advise him of his rights. “[A] suspect who has once
responded to unwarned yet uncoercive questioning is not thereby disabled from
waiving his rights and confessing after he has been given the requisite Miranda
warnings.” Oregon v. Elstad, 470 U.S. 298, 318 (1985). The question is whether
any subsequent waiver of Miranda rights was voluntary, knowing, and intelligent.
See id.; see also Spring, 479 U.S. at 573. For the reasons stated below, we
conclude that Mr. Nafkha’s decision to sign a waiver of his Miranda rights, see
Rep. & Rec. at 13; Suppr. Tr. at 22-23, was voluntary, knowing, and intelligent.
4 B. Length and Conditions of Interrogation
Mr. Nafkha contends that he was subjected to “[i]ntense and lengthy
questioning.” Aplt’s Br. at 37. Protracted police interrogation can be “so
inherently coercive that its very existence is irreconcilable with the possession of
mental freedom by a lone suspect against whom its full coercive force is brought
to bear.” Ashcraft v. Tennessee, 322 U.S. 143, 154 (1944). However, we do not
think Mr. Nafkha’s interrogation was impermissibly coercive. Mr. Nafkha was in
an interview room at the Salt Lake City Police Department from roughly 4:00
p.m. to 10:30 p.m. See Rep. & Rec. at 11, 14; Suppr. Tr. at 8, 11. However,
aside from the single, aforementioned question about the danger to officers in
entering the motel room, see Rep. & Rec. at 11; Suppr. Tr. at 8, no interrogation
occurred until approximately 7:00 p.m, see Rep. & Rec. at 11; Suppr. Tr. 10-11.
In the meantime, while Mr. Nafkha was alone, waiting to meet with the officers,
he was asked at least twice whether he needed to use the restroom or wanted
anything else. See Suppr. Tr. at 9-10. After the interrogation began, Mr. Nafkha
was again asked periodically whether he needed anything, and, upon request, he
was given a soft drink, cigarettes, and use of the restroom. See Rep. & Rec. at
14; Suppr. Tr. at 11, 20, 77. Moreover, Mr. Nafkha did much of the interrogating
himself, probing the officers to find out how much they knew about the bank
robberies. See Rep. & Rec. at 12; Suppr. Tr. at 18. These circumstances hardly
5 show the kind of coerciveness that has been condemned in other cases. See, e.g.,
Ashcraft, 322 U.S. at 153 (noting that suspect was interrogated by officers almost
continuously for thirty-six hours).
C. State Case and Federal Sentencing
Mr. Nafkha contends that the officers tried to intimidate him into
confessing by warning him that he would face serious weapons charges if he did
not cooperate. Mr. Nafkha also says that the officers tried to bully him by
claiming that his attorney had, in a pending state case, negotiated a plea bargain
that was unfavorable to him.
The district court found that “[t]here was no disparagement of counsel’s
representation of” Mr. Nafkha. Rep. & Rec. at 13. The district court further
found: (1) that “no threats or promises were made to” Mr. Nafkha, id. at 12; (2)
that Agent Rankin discussed the United States Sentencing Guidelines, but only in
response to Mr. Nafkha’s questions, see id.; and (3) that although Agent Rankin
mentioned the possibility of a sentence reduction for acceptance of responsibility,
he said that he could not predict the sentence that Mr. Nafkha or any other
defendant would receive, see id.
The district court’s findings are supported by the record and are not clearly
erroneous. See Suppr. Tr. at 18-20, 30-32, 54, 58-59. Although the findings are
based on the officers’ testimony, which differed somewhat from Mr. Nafkha’s,
6 see id. at 75, we cannot say that the district court committed clear error in
believing the officers rather than Mr. Nafkha. The district court was in a much
better position than we are to judge the credibility of the witnesses at the
suppression hearing. See United States v. Waupekenay, 973 F.2d 1533, 1536
(10th Cir. 1992).
D. Invocation of Right to Counsel
In his final Miranda objection, Mr. Nafkha contends that his confession was
inadmissible because the officers failed to honor his request for counsel. When a
suspect invokes the right to counsel recognized in Miranda, 384 U.S. at 469-73,
the interrogating officers must cease questioning him about the offense until his
attorney is present or until he re-initiates the conversation himself. See Edwards
v. United States, 451 U.S. 477, 484-85 (1981). This procedure is “designed to
prevent police from badgering a defendant into waiving his previously asserted
Miranda rights.” Michigan v. Harvey, 494 U.S. 344, 350 (1990).
The district court found that Mr. Nafkha “never made a request to talk to or
call his attorney, he was [merely] asking if he had that right.” Rep. & Rec. at 13.
We do not think the district court’s factual finding was clearly erroneous. See
United States v. Hernandez, 93 F.3d 1493, 1501 (10th Cir. 1996) (holding that
claims of failure to administer Miranda warnings are to be reviewed for clear
7 error); United States v. Giles, 967 F.2d 382, 386 (10th Cir. 1992) (reviewing
defendant’s claim that he had requested counsel under a clear error standard).
At the suppression hearing, both Agent Rankin and Detective Timmerman
testified that during the interrogation Mr. Nafkha said something to the effect of:
“Can I speak to Ron?” — meaning Ronald J. Yengich, his attorney. See Suppr.
Tr. at 21-22, 53. The officers further testified that they believed that Mr. Nafkha
was simply asking whether he had the right to contact his attorney. See Suppr.
Tr. at 24, 38-39, 54-55.
A request for counsel must not be “ambiguous or equivocal.” Davis v.
United States, 512 U.S. 452, 459 (1994). A suspect “must articulate his desire to
have counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney.”
Id.
We do not think Mr. Nafkha was sufficiently clear. We think the officers
reasonably believed that he was not asking to speak with his attorney, but rather
asking whether he had that right. See United States v. March, 999 F.2d 456, 461
(10th Cir. 1993) (comparing equivocal requests for counsel with defendants’ mere
statements or questions).
After Mr. Nafkha mentioned his attorney, the officers proceeded
appropriately. “[W]hen confronted with an equivocal request for counsel, the
8 interrogating officers must cease all substantive questioning and limit further
inquiries to clarifying the subject’s ambiguous statements.” March, 999 F.2d at
461. Here, Agent Rankin responded to Mr. Nafkha’s inquiry about his attorney
by saying: “[O]f course you can [talk to your attorney].” Rep. & Rec. at 13.
Agent Rankin continued: “As we explained to you when we advised you of your
rights, you have the right to contact your attorney whoever that may be.” Suppr.
Tr. at 22 (Test. of Agent Rankin) (paraphrasing statement he made to Mr. Nafkha
during interrogation); see also id. at 53 (Test. of Detective Timmerman) (same).
This explanation was followed by a short period of silence, as Mr. Nafkha
appeared to be considering his options, after which he signed a waiver of his
Miranda rights and submitted to questioning. See Rep. & Rec. at 13-14; see also
Suppr. Tr. at 22, 53.
Mr. Nafkha’s account of the interrogation differed from the officers’: He
testified that he demanded flatly to speak with Mr. Yengich, and that the officers
ignored him and kept asking about the bank robberies. See Suppr Tr. at 67, 74.
However, we cannot say that the district court committed clear error in believing
the officers rather than Mr. Nafkha; as we explained above, the district court was
in a much better position to judge the witnesses’ credibility.
In sum, we hold that (1) because Mr. Nafkha’s sole, un-Mirandized
statement (a one-word answer to a question about officers’ safety) was not
9 admitted at trial and because Mr. Nafkha’s subsequent confession was made after
the officers had administered proper Miranda warnings, the officers’ initial failure
to advise Mr. Nafkha of his Miranda rights does not warrant reversal; and (2)
because the district court’s factual findings regarding the circumstances leading
up to this confession were not clearly erroneous, Mr. Nafkha’s decision to waive
his Miranda rights was free and voluntary.
II. Joinder of Charges
Mr. Nafkha raises two issues with respect to the joinder of charges. The
first issue concerns the bank robbery counts; the second, the felon-in-possession
counts.
Mr. Nafkha did not object to the joinder of these charges in the district
court. Therefore, we review only for plain error. See Fed. R. Crim. P. 52(b).
Under “plain error” analysis, we inquire: (1) Was there error? (2) If so, was the
error “plain” (i.e., “clear,” “obvious”)? (3) Did the error affect “substantial
rights” (i.e., was the error prejudicial; did it affect the outcome of the district
court proceedings)? (4) Did “the error seriously affect[] the fairness, integrity or
public reputation of judicial proceedings” (i.e., did it result in “a miscarriage of
justice”)? See United States v. Olano, 507 U.S. 725, 732-35 (1993).
10 A. Bank Robbery
Mr. Nafkha objects to the joinder of the five bank robbery counts in a
single indictment. Rule 8(a) of the Federal Rules of Criminal Procedure allows
for the joinder of two or more offenses if they are “of the same or similar
character.” Fed. R. Crim. P. 8(a). However, the district court may sever counts
that are properly joined if it appears that the defendant is prejudiced by their
joinder. See Fed. R. Crim. P. 14. When joinder of offenses is based upon their
“same or similar character,” prejudice to the defendant is more likely because the
jury may use evidence of one crime to infer a criminal disposition on the part of
the defendant from which is found his guilt of the other crime or crimes charged.
See United States v. Muniz, 1 F.3d 1018, 1023 (10th Cir. 1993).
Mr. Nafkha relies principally on Drew v. United States, 331 F.2d 85 (D.C.
Cir. 1964). Although the Drew court held that joinder in that case was indeed
prejudicial, the court also noted that “[t]he federal courts . . . have, however,
found no prejudicial effect from joinder when the evidence of each crime is
simple and distinct.” Id. at 91. Likewise, we have suggested that prejudice does
not exist unless the evidence is “too confusing or unfairly overlapping.” Muniz, 1
F.3d at 1023.
Drew found error (although not plain error) in the joinder of two robbery
offenses because they were confusingly similar: both were committed against
11 stores named High’s, and both were committed by an African-American wearing
sunglasses. See 331 F.2d at 92-94. In our case, three of the five banks had the
same name (First Security). See Aplt’s App. I, at 1-4 (Superseding Indictment,
dated Nov. 22, 1995). Also, the robbers in each instance were dressed the same
way and acted in the same manner: as the government itself notes, all the banks
were subject to “‘takeover’ robberies by glove[d] and gun wielding robbers who
wore masks and parked a car right outside the bank entrance.” Aple’s Br. at 33-
34.
Nevertheless, we do not think the offenses were so similar as to present a
risk of confusion. As in another case where we found no prejudice from joinder,
“[t]he offenses took place on different dates at different locations, and different
witnesses and evidence were presented on each count.” Muniz, 1 F.3d at 1023.
Accordingly, we do not think the district court committed error, plain or
otherwise, in failing to sever the bank robbery counts.
B. Felon-in-Possession
Mr. Nafkha objects to the joinder of the felon-in-possession counts with the
other counts. The felon-in-possession counts required the government to prove
that Mr. Nafkha had been “convicted . . . of, a crime punishable by imprisonment
for a term exceeding one year.” 18 U.S.C. § 922(g)(1). “[E]vidence of the name
or nature of the prior offense generally carries a risk of unfair prejudice to the
12 defendant.” Old Chief v. United States, 117 S. Ct. 644, 652 (1997). The jury
may “generaliz[e] a defendant’s earlier bad act into bad character and tak[e] that
as raising the odds that he did the later bad act now charged (or, worse, as calling
for preventive conviction even if he should happen to be innocent momentarily).”
Id. at 650.
For this reason, we have endorsed the “use of a redacted record, stipulation,
affidavit, or other similar technique whereby the jury is informed only of the fact
of a prior felony conviction, but not of the nature and substance of the
conviction.” United States v. Wacker, 72 F.3d 1453, 1472 (10th Cir. 1995)
(emphasis supplied), cert. denied, 117 S. Ct. 136 (1996). In this case, Mr. Nafkha
refused the government’s offer to stipulate to the fact of his prior conviction. See
Trial Tr. (Apr. 19, 1996) at 4, 70-71. See also United States v. Dean, 76 F.3d
329, 333-34 (10th Cir. 1996) (finding no prejudice where the defendant made a
strategic choice not to stipulate to redaction from the prior judgments of specific
references to the nature of the convictions). Mr. Nafkha contends on appeal that
the evidence introduced as to his prior conviction made joinder of the felon-in-
possession counts unfairly prejudicial.
We disagree. Despite Mr. Nafkha’s failure to enter into a stipulation, the
evidence admitted did not allow the jury to learn the name and nature of his prior
conviction. The conviction documents in Mr. Nafkha’s prior case were not given
13 to the jury; the documents were admitted for the limited purpose of establishing
the fact of a prior felony conviction. See Trial Tr. (Apr. 19, 1996) at 85. Neither
Mr. Nafkha’s parole officer, nor the prosecutor examining him, mentioned the
name or nature of Mr. Nafkha’s prior offenses. See id. at 147-48. Moreover, the
government’s mention of the prior conviction in closing argument was brief and
limited to establishing the fact of the conviction as an element of the felon-in-
possession offenses. See Trial Tr. (Apr. 22, 1996) at 51. These circumstances
are virtually identical to those in other cases where we found no showing of
prejudice. See, e.g., United States v. Valentine, 706 F.2d 282, 290 (10th Cir.
1983).
Furthermore, the district court instructed the jurors that they should
consider the prior conviction only as an element of the felon-in-possession counts
and not as evidence of criminal propensity. See Aple’s Supl. App. at 1 (Instr. No.
29). Mr. Nafkha cites a case from the Second Circuit that suggests limiting
instructions are insufficient to cure the risk of prejudice posed by joinder of
felon-in-possession counts. See United States v. Jones, 16 F.3d 487, 493 (2d Cir.
1994). However, in this circuit, we “look for the presence of limiting
instructions” as a safeguard against prejudice. United States v. Patterson, 20 F.3d
809, 816 (10th Cir. 1994); accord Valentine, 706 F.2d at 290 n.7. Consequently,
we conclude that there was no showing of prejudice and, therefore, no plain error.
14 III. Detective Timmerman’s Testimony
During trial, Detective Timmerman testified that Kissione Netane (a ten-
year-old boy who witnessed the robbers escaping after one of their heists) had
identified Mr. Nafkha from a police array of photographs. See Trial Tr. (Apr. 19,
1996) at 81-82. After Detective Timmerman’s testimony, the district court
refused to admit the photo array into evidence, apparently on the ground that the
police lacked sufficient reason to include Mr. Nafkha’s photo in the array. See id.
at 82-83.
On appeal, Mr. Nafkha argues that Detective Timmerman’s testimony was
prejudicial and inadmissible hearsay, and that the district court erred in failing to
declare a mistrial or, at least, instruct the jury to disregard the testimony.
Because Mr. Nafkha did not raise such objections at trial, we review only for
plain error. See Fed. R. Crim. P. 52(b).
However, we need not reach the issue of whether Detective Timmerman’s
testimony was inadmissible hearsay, because this testimony was not the only
evidence linking Mr. Nafkha to the bank robberies and, thus, was not unduly
prejudicial. In addition to the confession discussed above, there was also
evidence that the vehicle in which Mr. Nafkha was found matched the description
of the vehicle involved in one of the bank robberies. See Trial Tr. (Apr. 19,
1996) at 122, 124 (Test. of Officer David Clair Cracroft). Furthermore, the
15 vehicle in which Mr. Nafkha was found contained masks, guns, and other
evidence of his guilt. See id. at 139, 140 (Test. of FBI Special Agent Daniel
Richard Ward). Thus, even if the district court had erred in admitting Detective
Timmerman’s testimony, this testimony was merely cumulative and, therefore, no
prejudice could have resulted from its admission. See United States v. Campbell,
937 F.2d 404, 408 (10th Cir. 1991). Accordingly, the district court did not
commit plain error by failing to give the jury a limiting instruction regarding
Detective Timmerman’s testimony.
CONCLUSION
For the foregoing reasons, we conclude that: (1) Mr. Nafkha’s confession
was voluntary and admissible under Miranda and related cases; (2) the five bank
robbery counts were properly joined in a single indictment and trial, and the
felon-in-possession counts were properly joined with the other counts; and (3) the
district court did not commit plain error by failing to take corrective action after
allowing Detective Timmerman’s testimony about the photo array. Accordingly,
we AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Robert H. Henry Circuit Judge