U.S. v. Valdez

• Decision Date: 01 June 1998
• Docket Number: 97-4050,Nos. 97-4075,s. 97-4075
• Citation: 146 F.3d 547
• Parties: UNITED STATES of America, Appellee, v. Henry R. VALDEZ, Appellant. UNITED STATES of America, Appellee, v. Damion E. JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 547

146 F.3d 547

UNITED STATES of America, Appellee, v. Henry R. VALDEZ, Appellant.

UNITED STATES of America, Appellee, v. Damion E. JOHNSON, Appellant.

Nos. 97-4075, 97-4050.

United States Court of Appeals Eighth Circuit.

Submitted April 16, 1998.

Decided June 1, 1998.

Gary R. Pearson, Lincoln, NE, argued, for Henry R. Valdez.

John C. Vanderslice, Omaha, NE, argued (Jennifer L. Gilg, Omaha, NE, on the brief), for Damion Johnson.

Alan Lee Everett, Lincoln, NE, argued (Thomas J. Monaghan, U.S. Atty., on the brief), for United States of America.

Before McMILLIAN, BOWMAN, ¹ and MURPHY, Circuit Judges.

BOWMAN, Circuit Judge.

Damion Johnson and Henry Valdez were tried jointly for attempted bank robbery, see 18 U.S.C. § 2113 (1994), and using a firearm during a crime of violence, see id. § 924(c)(1) (1994). A jury convicted each on both counts. Following the trial, the District Court ² sentenced Johnson to 97 months' imprisonment on the bank robbery conviction to be followed by 120 months' imprisonment on the weapons conviction and sentenced Valdez to 175 months' imprisonment on the bank robbery conviction to be followed by 120 months' imprisonment on the weapons conviction. Each defendant appeals. For purposes of briefing and argument, the appeals have been consolidated. We affirm.

I.

Shortly after 7:00 a.m. on October 1, 1996, bank president John Barry arrived at Oak Creek Bank in Valparaiso, Nebraska, to open for the business day. Shortly after he unlocked and entered the bank, two men entered and confronted Barry. The two men were wearing over their faces dark stocking caps with jaggedly cut eye holes. One was carrying a shotgun and the other was carrying a bag. The two ordered Barry to open the bank vault and threatened Barry by telling him he would never see his granddaughter again. Before Barry could open the vault, another bank employee entered the bank and discovered the robbery. This prompted the two men to flee, speeding away in a red pick-up truck.

That same morning at approximately 7:30 a.m., a dispatcher alerted Officer Stanley Funky to the attempted robbery that had just occurred and described both the vehicle and the male suspects involved. Officer Funky exited the interstate that he had been patrolling and began traveling a gravel road en route to Valparaiso. At 7:46 a.m., Officer Funky observed two male subjects traveling the opposite direction in a red pick-up truck about six miles south of Valparaiso. Believing that the pick-up truck matched the dispatcher's description, Officer Funky turned around and began following the truck. The truck accelerated, so Officer Funky activated his red lights and siren. A chase ensued that lasted several miles and reached speeds of seventy to eighty miles per hour. In the meantime, two other officers had created a roadblock in the expected path of the pick-up truck. As the truck approached the roadblock, one of the troopers fired a round from his shotgun at the truck. Only then did the truck stop, whereupon Johnson and Valdez were arrested.

Pursuant to the arrest, officers seized from Johnson's pocket a butterfly fold-out knife and from the pick-up truck two black stocking caps with roughly cut eye holes, a cloth duffel bag, and a sawed-off shotgun. The pick-up truck had been reported stolen just a few hours before the robbery took place.

At the police station, FBI Agent Ronnie Ott and Nebraska State Patrol Sergeant Rod Getting informed Valdez of his Miranda rights. Valdez agreed to speak to the officers and signed a written waiver. Soon after the questioning began, Valdez requested an attorney. The interview immediately ceased. A few moments later, Valdez stated that he had changed his mind and wanted to answer questions. Valdez went on to provide a detailed account of the attempted robbery. In this confession, however, Valdez never named the other party with whom he was involved in the robbery. Instead, Valdez referred to the other individual as his accomplice. Valdez admitted that he and his accomplice stole the pick-up truck, purchased the stocking caps, cut eye holes in the stocking caps with a butterfly knife, waited in the bushes at the bank for the bank president to arrive, and then entered the bank in an attempt to execute the robbery.

II.

Valdez raises two issues separate from those raised by Johnson. Valdez first argues that his confession was not voluntary and therefore should not have been admitted as evidence against him. Valdez claims that, after he requested counsel and the interrogation ceased, the officers held up some papers and stated that Johnson had already told them everything. Only then, Valdez contends, did he change his mind and decide to talk. Valdez further claims that he confessed to the robbery without being readvised of his Miranda rights. The government contends, however, that the agents never held up papers indicating that Johnson had already spoken with them. Rather, when the interrogation was initially terminated, the government claims that the agents stood up to leave, and it was then that Valdez stated that he had changed his mind and wanted to talk. The government further asserts that Valdez was readvised of his Miranda rights and waived them a second time.

The voluntariness of a confession is a question of law and thus entitled to de novo review. See Miller v. Fenton, 474 U.S. 104, 115, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). A district court's factual findings about the circumstances surrounding a confession, however, are reviewed only for clear error. See United States v. Hornbeck, 118 F.3d 615, 618 (8th Cir.1997). To determine the voluntariness of Valdez's confession, the District Court held a Jackson v. Denno ³ hearing wherein both Agent Ott and Valdez testified as to their version of the facts surrounding the confession. ⁴ The court specifically found Valdez to be "totally incredible," Trial Tr. at 428, and therefore believed the government's version. We find no clear error in the District Court's findings of fact, and our de novo review of the legal issue of the voluntariness vel non of Valdez's confession proceeds on the basis of those findings.

Valdez began making a confession to the officers after he had been informed of his Miranda rights and he had signed a written waiver. Valdez then asked for an attorney, and the interrogation ceased. Once an accused requests counsel, no further interrogation may take place until counsel has been made available or "unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Further, the communication initiated by the accused satisfies Edwards only if it relates to the investigation. See Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (plurality opinion). In this case, Valdez himself initiated further communication by telling the agents as they were leaving the room that he had changed his mind and wanted to answer questions. Moreover, it was clear that Valdez wanted to talk about the attempted robbery. Valdez then was readvised of his Miranda rights, waived them again, and confessed to the attempted robbery. We hold that Valdez's confession was made knowingly and voluntarily. ⁵

The second issue Valdez separately raises relates to his sentencing: whether the District Court erred in denying him a downward departure based on diminished capacity. The sentencing guidelines provide:

If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity[,] ... a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense....

U.S. Sentencing Guidelines Manual § 5K2.13 (1995). To be considered for a downward departure under this section, the defendant must have committed a nonviolent offense. Valdez argues that, because the shotgun used in the attempted robbery was not loaded and his accomplice was carrying the weapon, his commission of the robbery should be considered nonviolent. We reject this argument and hold that Valdez was not entitled to a downward departure for diminished capacity. See United States v. Mayotte, 76 F.3d 887, 889 (8th Cir.1996) (holding that "[defendant's] commission of the offense of bank robbery precludes any 'diminished capacity' reduction" under § 5K2.13).

III.

Johnson raises two arguments apart from those set forth by Valdez. First, under a theory different from Valdez's, Johnson takes issue with the admissibility of Valdez's confession. At trial, the substance of Valdez's confession was offered through the testimony of Agent Ott. The court instructed the jury both before it heard Ott's testimony and after the trial, as part of the jury instructions, not to consider the confession as evidence against Johnson. Ott also told the jury that Valdez would not identify in his confession the person who accompanied him during the robbery. And just as Valdez had done in giving his confession, Ott referred to the unidentified companion as Valdez's accomplice. Thus, Johnson's name never had to be redacted from Ott's testimony because Valdez never had mentioned Johnson by name in his confession. The only part of Valdez's confession relevant to this discussion was the reference to Valparaiso as being the accomplice's home town, which Ott omitted from his testimony.

Johnson contends that the confession was admitted in violation of his Sixth Amendment right to confront and cross-examine witnesses against him. More specifically, Johnson alleges a Bruton violation. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Supreme Court held that limiting instructions are not constitutionally adequate when "powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately...