United States v. White

68 F. App'x 535
Court of Appeals for the Sixth Circuit·Decided June 5, 2003·No. No. 01-3866·Published·Cited by 3 cases

Opinions

COHN, District Judge.

This is a criminal case. Defendant-Appellant Kenneth Earl White (White) appeals from his jury conviction on two counts of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), for which he was sentenced to 160 months imprisonment. White presents four issues on appeal: (1) whether his statement to police should have been suppressed because he was not given proper Miranda warnings; (2) whether the evidence is sufficient to support his conviction; (3) whether a judgment of acquittal should have been granted; and (4) whether the district court gave confusing and contradictory jury instructions. For the reasons that follow, we affirm Wfiiite’s conviction.

I. BACKGROUND

On January 11, 2001, a group of Ohio police officers began surveilling a known stolen car, a 1994 Chevy Blazer, located in an apartment parking lot. When officers approached the Blazer, they discovered it was unlocked. At that point, Officer James Amendolar, a Deputy Sheriff with the Stark County Sheriffs Department en[537]*537tered the Blazer to hit the hood latch and open the hood. Amendolar then disconnected some wires to disable the Blazer. Officers did not observe any activity regarding the Blazer that day. The next day, January 12, 2001, an officer saw White enter the Blazer and attempt to start it, which of course was unsuccessful. When an officer ordered him out of the car, White again attempted to start the car and was again unsuccessful. White eventually exited the car and was arrested following a foot chase. Upon his arrest, Amendolar found two car keys and a remote in White’s right pocket. One of the keys fit the Blazer. The other key belonged to a 1998 Lincoln Townear, which was also stolen and located in the same parking lot. In addition, officers found a loaded .38 caliber Smith & Wesson in the glove box of the Lincoln, and a loaded .357 Ruger and .22 Harrington Richardson in the center console of the Blazer.

White pled guilty in Ohio state court to attempted theft of the Blazer. He was later charged in federal court in a 2 count indictment for being a felon in possession of a firearm. Count 1 related to the two guns in the Blazer and Count 2 related to the gun in the Lincoln.

White’s theory at trial was that he only attempted to steal the Blazer and the evidence failed to show that he had actual possession of the guns sufficient for conviction. At trial, the government introduced two statements White made to Amendolar while in custody. The first statement was made on January 12, 2001, the day of White’s arrest and after White was given his Miranda rights. White told Amendolar that he “went there to steal a car.” Amendolar reminded White of the charges against him, at which point White said he wanted to “think about it” before he would talk any further. This statement was admitted at trial without objection.

Amendolar returned to speak with White three days later, on January 15, 2001. When White was placed in the interview room, Amendolar asked him if he had time to think about what they had talked about on the 12th. Amendolar then reminded White that he (Amendolar) had previously read him his Miranda rights, but did not re-Mirandize him at that time. White then told Amendolar that “when I checked inside of the Blazer, I should have found the keys and the guns in the console.”

At trial, White’s counsel objected to the admission of White’s second statement. At side bar, the district court asked the government to clarify whether or not Amendolar had re-Mirandized White. Amendolar then testified before the jury that “he had a discussion” with White about his Miranda rights, reminding White that Amendolar had previously read him his rights on January 12th. Amendolar further testified that in response, White “just sat there and looked at me like he understood what I was saying.” White’s counsel again objected, which the district court overruled. Amendolar then testified as to White’s second statement that the keys and the guns should have been in the console of the Blazer. After recounting White’s statement, Amendolar testified that he then told White that the keys were in the ignition to the Blazer when White was arrested and were not in the Blazer prior to that time. At that point, White told Amendolar that he wanted to speak with an attorney and Amendolar ended the interview.

II. ANALYSIS

A. Miranda violation

We review a district court’s factual findings for clear error and its legal conclusions de novo. See United States v. Crowder, 62 F.3d 782, 785 (6th Cir.1995). “The [538]*538courts have generally rejected a per se rule as to when a suspect must be read-vised of his rights after the passage of time or a change in questioners.” United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir.1995). This Circuit has applied a totality of the circumstances approach when addressing the issue of a delay between reading Miranda rights and a custodial interview, considering the following factors articulated in United States v. Weekley, 130 F.3d 747, 750 (6th Cir.1997) (citations omitted):

(1) the time elapsing between arrest and arraignment of the defendant[;] (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession[;] (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him[;] (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

Primarily at issue here is whether the Miranda rights given by Amendolar to White following his arrest were still in effect when White was interviewed by Amendolar three days later. Applying the above factors to the circumstances surrounding the White’s second statement to Amendolar, we find that the district court properly denied White’s request to suppress the statement. White was clearly aware of his rights on January 12th and understood those rights. He was questioned both times by the same police officer, who reminded him of his rights on the 15th. Although there was a three day delay between the questioning, the delay was largely due in response to White’s request to have time to think about it. There is no evidence that anything affected White’s understanding of his rights between the 12th and the 15th. Indeed, the fact that White asserted his right to stop the questioning and to speak with an attorney on the 15th demonstrates awareness of his rights. There is also no evidence of coercion or promises of leniency. In fact, Amendolar testified that White asked Amendolar whether speaking to him would help him, Amendolar replied that he could make a recommendation to the prosecutor but did not promise White anything.

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United States v. White, 68 F. App'x 535 (6th Cir. 2003).

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