United States v. Toles

297 F.3d 959, 2002 U.S. App. LEXIS 12481, 2002 WL 1365590
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 25, 2002
Docket01-5009
StatusPublished
Cited by127 cases

This text of 297 F.3d 959 (United States v. Toles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Toles, 297 F.3d 959, 2002 U.S. App. LEXIS 12481, 2002 WL 1365590 (10th Cir. 2002).

Opinions

MURPHY, Circuit Judge.

I. INTRODUCTION

Defendant-Appellant Elliot C. Toles was charged with various offenses in Tulsa, Oklahoma in a superceding indictment. At the conclusion of a jury trial, Toles was found guilty of multiple counts each of interference with interstate commerce, using or brandishing a firearm during a crime of violence, and bank robbery. In addition, he was convicted of aiding and abetting in connection with each of the above offenses. On appeal, Toles argues that (1) police investigators obtained incriminating statements from him in violation of the Fifth and Sixth Amendments; (2) the district court’s restriction on the cross-examination of a witness violated his Confrontation Clause rights; (3) there was insufficient evidence to sustain his convictions under the Hobbs Act and 18 U.S.C. § 924(c); (4) the prosecutor’s improper remarks during closing statements constituted reversible error; and (5) there was cumulative error. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

II. BACKGROUND

During the evening hours of June 30, 1999, Toles was arrested with DeMarques Morris and Sh-Pone Harris in connection with an armed robbery of a Burger King restaurant in Wichita, Kansas. Toles was taken to the FBI building in Wichita. FBI Special Agent Randy Ewy and Sergeant Michael Hennessy of the Wichita Police Department interviewed Toles for several hours into the early hours of July 1. After signing a waiver of rights, Toles mentioned other robberies in Kansas and Oklahoma. [964]*964After this first interview, Toles was taken to the Sedgwick County Adult Detention Facility (“SCADF”) to spend the night.

Sometime prior to July 2, 1999, Toles was formally charged for his participation in the Kansas robberies.1 He was represented by counsel in that matter. On July 2, Wichita Police Department Detective Steven Nevil, on assignment with the FBI Violent Crime Task Force, and FBI Special Agent Pritchett accompanied Toles to a scheduled court appearance on the Kansas charges. At the Wichita federal courthouse, Pritchett told Nevil that Toles wanted to speak with Nevil. Nevil and Pritchett escorted Toles to a restroom. After signing a waiver of rights form, Toles indicated that he was responsible for the robberies of a tag agency2 and a bank in Tulsa. The interview in the bathroom was cut short by Toles’ scheduled court appearance, but Nevil had at some point given Toles a business card and stated that he could call Nevil collect at the FBI if he had anything further to discuss.

A few hours after the arraignment, Toles placed a collect call from the SCADF to Detective Nevil. After Nevil arranged a meeting with Toles at the SCADF and advised him of his rights, Toles made statements implicating himself in four robberies in Tulsa, the indicted charges in this case. Toles further stated that a fake beard and mustache and a note were used during one of the robberies.

Toles was indicted and tried with co-defendant Morris for the robberies of the Northside Tag Agency, a Homeland grocery store, and branches of the Bank of Oklahoma and the American State Bank. At trial, Harris testified as a government witness pursuant to a grant of use immunity. The district court did not permit Toles to cross-examine Harris about the details of a plea agreement Harris had entered into in the Kansas prosecution. Toles was found guilty of two counts of violating the Hobbs Act, 18 U.S.C. § 1951, two counts of 18 U.S.C. § 924(c), and two counts of bank robbery, 18 U.S.C. § 2113(a).3

III. DISCUSSION

A. Motion to Suppress Incriminating Statements

Toles argues that the district court’s refusal to suppress his post-arrest statements, in which he incriminated himself in the Oklahoma robberies, violated his Fifth and Sixth Amendment rights. Specifically, Toles alleges that two separate discussions with FBI agents on July 2 violated his Sixth Amendment right to counsel because Toles had already been formally charged and was represented by counsel. He further alleges that the statements were not voluntarily given, in violation of the Fifth Amendment. After conducting an eviden-tiary hearing, the district court denied Toles’ motions to suppress.

[965]*9651. Sixth Amendment Right to Counsel

In reviewing the district court’s order granting or denying a motion to suppress, this court accepts the district court’s factual findings unless clearly erroneous and considers the evidence in the light most favorable to the district court’s determination. United States v. Caro, 248 F.3d 1240, 1243 (10th Cir.2001). “We are mindful that at a hearing on a motion to suppress, the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge.” Id. (quotation omitted).

A defendant’s Sixth Amendment right to counsel attaches when formal judicial proceedings, such as a formal charge, preliminary hearing, indictment, information, or arraignment, have been initiated against him. See United States v. Gouveia, 467 U.S. 180, 187-88, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). The Sixth Amendment right to counsel, however, is offense-specific and does not prevent law enforcement from questioning a defendant about unrelated or uncharged criminal activity. See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).4

In this case, Toles had been charged for the Kansas crimes at the time he gave both July 2 statements, but formal criminal proceedings had not been brought against him for the Oklahoma crimes. Thus, Toles’ Sixth Amendment right to counsel had not attached with respect to the unindicted Oklahoma crimes.

2. Voluntariness of Incriminating Statements

Toles also alleges that the two statements he gave to Detective Nevil on July 2, 1999 were involuntary, in violation of his Fifth Amendment due process rights. He argues that the incriminating statement he gave to law enforcement in a courthouse restroom before his arraignment on the Kansas crimes was the result of law enforcement’s high-pressure tactics, Toles’ lack of sleep in the preceding forty-eight hours, and his youth and limited intelligence.5

This court reviews de novo the voluntariness of a statement, although specific underlying findings of fact are reviewed for clear error. See United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir.1999).

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Cite This Page — Counsel Stack

Bluebook (online)
297 F.3d 959, 2002 U.S. App. LEXIS 12481, 2002 WL 1365590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-toles-ca10-2002.