USA . Christopher A. McNabb

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 27, 2020
• Docket: 19-14987
• Status: Unpublished

Opinion

Case: 19-14987 Date Filed: 08/27/2020 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14987 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cr-00538-KOB-JHE-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER A. MCNABB, a.k.a. Rudy,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

(August 27, 2020)

Before ROSENBAUM, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM: Case: 19-14987 Date Filed: 08/27/2020 Page: 2 of 10

Christopher McNabb appeals his convictions for being a felon in possession

of a firearm and ammunition, in violation of 18 U.S.C.§ 922(g)(1), and two counts

of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). He

argues that the district court erred in denying his motion to suppress evidence and

in admitting his statements made to law enforcement officers at trial. After review,

we affirm.

I. Background

A federal grand jury indicted McNabb on four counts, charging him with:

(1) being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1)

(Count One), (2) two separate counts of possession of an unregistered firearm, 26

U.S.C. § 5861(d) (Count Two and Count Three), and (3) being a felon in

possession of an explosive, 18 U.S.C. § 842(i)(1) (Count Four). 1 Before trial,

McNabb filed a motion to suppress evidence of the firearms and ammunition that

formed the basis for his indictment, arguing that they were found pursuant to an

illegal search. McNabb argued that although the government obtained a search

warrant to search the residence at 270 McNabb Road, the officers exceeded the

1 Specifically, the indictment charged illegal possession under each count as follows. For Count One, McNabb knowingly possessed a Davis Industries Model P380 .380 caliber pistol, a Bryco Arms Model 38 .380 caliber pistol, and .270 caliber and .25 caliber ammunition, all of which had been shipped and transported in and affecting interstate commerce. For Count Two, McNabb knowingly received and possessed an unregistered Diamondback Arms Model DB-15 .223 Remington caliber firearm. For Count Three, McNabb knowingly received and possessed an unregistered SWD Model M-11 9mm Luger caliber machinegun. For Count Four, McNabb knowingly received and possessed explosives--three shock tube explosive detonators. 2 Case: 19-14987 Date Filed: 08/27/2020 Page: 3 of 10

scope of the warrant by searching other buildings, outbuildings, trailers, and cars

on the lot. He alleged that it was during this illegal search that the government

found the firearms and ammunition underlying his convictions.

At the suppression hearing on April 15, 2019, a Bureau of Alcohol,

Tobacco, Firearms, and Explosives (“ATF”) agent testified that federal agents

obtained a search warrant for the residence at 270 McNabb Road in Jefferson

County, Alabama based on information provided by a reliable confidential

informant that McNabb, a convicted felon, had firearms inside that residence (the

“federal search warrant”). ATF requested assistance from the Jefferson County

Sheriff’s Office because McNabb had a State of Alabama arrest warrant for

possession of a controlled substance. While executing the federal search warrant

on the main residence, they seized numerous firearms, including the firearms

charged in Count One of the indictment. In addition, an individual in the residence

told the federal agents that McNabb was in the nearby log cabin (located on the

property), prompting the federal agents and Jefferson County deputies to enter the

cabin and arrest McNabb. While arresting McNabb, the officers observed in plain

view a pipe used to smoke methamphetamine, and the Jefferson County deputies

obtained a state search warrant for narcotics which covered the log cabin. The

federal agents and Jefferson County deputies then searched the cabin pursuant to

the state search warrant, during which they discovered several firearms and

3 Case: 19-14987 Date Filed: 08/27/2020 Page: 4 of 10

ammunition, including the two firearms charged in Counts Two and Three of the

indictment. At Agent Brantley’s request and after being given Miranda2 warnings,

McNabb, as well as his family members who owned the main residence, provided

written consent for the federal agents to seize the firearms and ammunition in the

log cabin after being given Miranda warnings.

On cross-examination, the ATF agent acknowledged inconsistencies in

several government documents related to the search. As relevant here, documents

prepared after the search indicated that the inventory of items from the log cabin

was completed at 8:00 am, while the search warrant for the log cabin was signed at

8:28 am. McNabb’s counsel then introduced property records, one that stated 270

McNabb Road was owned by David Walker, another that stated it was owned by

Edward McNabb.

After hearing the evidence presented at the suppression hearing, the

magistrate judge submitted a report and recommendation (“R&R”), recommending

that the district court deny McNabb’s motion to suppress. The magistrate judge

stated that McNabb failed to establish standing to challenge the search of the cabin

because he did not have any expectation of privacy in it: he did not own the cabin

and the only evidence he submitted to show that he had some expectation of

privacy in the cabin was that he was sleeping in it. Alternatively, the magistrate

2 Miranda v. Arizona, 384 U.S. 436 (1966). 4 Case: 19-14987 Date Filed: 08/27/2020 Page: 5 of 10

judge stated that McNabb did not establish that either the search of the main

residence (supported by the federal search warrant) or the log cabin (supported by

the state search warrant) was invalid, because he failed to point to any substantive

error in either warrant that called into question the validity of the search or directly

challenge either warrant’s execution. The magistrate judge further noted that any

inconsistencies in the government documents appeared to be merely clerical errors.

While these errors may have “muddied the waters,” they did not support a finding

of any constitutional violation.

At the end of the R&R, the magistrate judge informed the parties that they

were required to file any objections to the R&R within 14 days of its entry. He

further warned the parties that failure to object to the R&R “waives the right to

challenge on appeal those same conclusions adopted in the district court’s order.”

McNabb did not object to the R&R. The district court adopted and accepted the

unopposed R&R and denied McNabb’s motion to suppress.

The case proceeded to trial, during which the government introduced

McNabb’s statements to law enforcement on the day the search warrants were

executed, April 30, 2018 (the “first interview”). McNabb raised the issue of

whether Miranda warnings had been provided, and the government responded with

evidence showing that a Miranda warning had been provided to McNabb. The

government then introduced McNabb’s statements that he made on May 14, 2018,

5 Case: 19-14987 Date Filed: 08/27/2020 Page: 6 of 10

two weeks after the first interview, to federal agents while sitting in their parked

car outside a Target department store (the “second interview”). By the time of the

second interview, McNabb (who was out of jail on bond) had been in

communication with law enforcement and had advised them that he wished to

cooperate. McNabb raised a Miranda issue regarding the second interview, stating

that “cleansing warnings” and a “modified Miranda warning” were required and

had not been given. The government responded that McNabb should have filed a

motion to suppress if he thought the statements were inadmissible. The district

court asked the parties to brief the issue, but ultimately ruled there was no question

as to the admissibility of the statements. McNabb did not pursue any more

arguments on this issue during the remainder of the trial.

The jury returned a verdict of guilty on Counts One, Two, and Three, and a

verdict of not guilty on Count Four. The district court entered judgment against

McNabb on Counts One, Two, and Three, sentencing him to a 120-month term of

imprisonment. This appeal followed.

II. Standard of Review

The district court’s denial of a motion to suppress is a mixed question of fact

and law. United States v. Barsoum, 763 F.3d 1321, 1328 (11th Cir. 2014).

Accordingly, we review a district court’s factual findings for clear error and its

application of law to the facts de novo. Id.

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III. Discussion

A. McNabb Waived His Right to Challenge the District Court’s Ruling on the Motion to Suppress

On appeal, McNabb argues that the district court erred when it denied his

motion to suppress because (1) the search of the log cabin was unlawful, as it

exceeded the scope of the federal warrant and was not otherwise justified, and (2)

he had standing to challenge the search of the log cabin, since he was sleeping

there as an overnight guest. McNabb has waived both these arguments.

Under Rule 59(b)(2) of the Federal Rules of Criminal Procedure, a party

waives the right to review of a magistrate judge’s findings if the party does not file

“specific written objections” within 14 days of being served with the R&R, or

otherwise within the period the court sets. Fed. R. Crim. P. 59(b)(2). Additionally,

Eleventh Circuit Rule 3-1 states that the failure to object to an R&R waives the

right to challenge on appeal the district court’s order based on unobjected-to

factual and legal conclusions if the party was informed of the time period for

objecting and the consequences on appeal for failing to object. 11th Cir. R. 3-1.

Generally, waived claims are not reviewed on appeal, not even for plain error.

United States v. Lewis, 492 F.3d 1219, 1221 (11th Cir. 2007) (en banc). Eleventh

Circuit Rule 3-1 allows a limited exception of review for plain error where the

interests of justice require it. See 11th Cir. R. 3-1.

7 Case: 19-14987 Date Filed: 08/27/2020 Page: 8 of 10

We decline to review McNabb’s suppression arguments because he waived

any right to challenge this issue on appeal by failing to object to the magistrate

judge’s R&R recommending the denial of his motion to suppress. The magistrate

judge informed McNabb of the time period for objecting and the consequences for

failing to do so. McNabb nevertheless failed to object to the R&R within that

period and thus waived any right to challenge it on appeal. See 11th Cir. R. 3-1;

see also Fed. R. Crim. P. 59(b)(2).

In his reply brief, McNabb argues that we should exercise our discretion as

permitted by Eleventh Circuit Rule 3-1 and review his claims for plain error. We

decline to do so for three reasons. First, issues raised for the first time in a reply

brief are waived. . See United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir.

2002). By not arguing for the Rule 3-1 plain error review in his initial brief,

McNabb has waived that argument as well. Second, Rule 3-1 allows such review

only when “in the interests of justice.” McNabb has not demonstrated that the

interests of justice require such a review. Finally, McNabb’s claim does not

survive the rigors of plain error review, given the multiple warrants and the

consent form signed by the occupants of the residence.3

3 Under plain error review, this Court, at its discretion, may correct an error where “(1) an error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).

8 Case: 19-14987 Date Filed: 08/27/2020 Page: 9 of 10

B. McNabb’s Challenge to the Admission of His Statements Fails Because He Was Not in Custody

McNabb also argues on appeal that the district court erred in admitting at

trial a recording of his statements obtained by ATF agents during an interview on

May 14, 2018, a few weeks after his arrest and the search of his home. McNabb

argues that this interrogation, which took place within an ATF vehicle outside a

Target store, was custodial in nature and thus required Miranda warnings. We

disagree.

Persons subject to “custodial interrogation” are entitled to receive Miranda

warnings before statements they make can be used against them at trial. Berkemer

v. McCarty, 468 U.S. 420, 434 (1984). However, not every interrogation by a

police officer is custodial in nature. See id. at 440–41. To assess whether someone

was in “custody” for purposes of Miranda protection, a court must ascertain

whether a reasonable person would have felt he or she was not free to leave the

interview. See Howes v. Fields, 565 U.S. 499, 509 (2012). Even if someone might

not feel free to leave, however, such as an inmate questioned at the prison where he

is serving his sentence, Miranda does not apply unless the interview involves “the

same inherently coercive pressures as the type of station house questioning at issue

in Miranda.” Id.

Here, a reasonable person would have felt free to leave, and also the

interview lacked the coercive pressure needed to trigger the Miranda requirement. 9 Case: 19-14987 Date Filed: 08/27/2020 Page: 10 of 10

McNabb was not in federal custody at the time of his May 14, 2018 interview.

McNabb met the federal agents at a Target near his home. The meeting was

arranged because McNabb had informed ATF that he wished to cooperate. Thus,

McNabb voluntarily attended the meeting in a public location. A reasonable

participant in such an interview would have felt free to leave, and the

circumstances of the interview were not inherently coercive. Thus, Miranda

warnings were not required, and the district court did not err in admitting the

statements. Howes, 565 U.S. at 509.

Accordingly, for the reasons explained above, we affirm. 4

AFFIRMED.

4 McNabb also asserts that his counsel was constitutionally ineffective for failing to raise objections to the R&R. In the interest of avoiding piecemeal litigation and because ineffective- assistance claims are better suited for a timely § 2255 motion upon which a record can be established specifically on the issue of ineffective assistance, we decline to address McNabb’s ineffective-assistance claim at this time. See Massaro v. United States, 538 U.S. 500, 504 (2003) (explaining that “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance”); United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (“We will not generally consider claims of ineffective assistance of counsel raised on direct appeal where the district court did not entertain the claim nor develop a factual record.”). Here, the issue was not raised below, and there is no record developed for us to evaluation such a claim. McNabb is free assert this claim in a § 2255 motion. 10