178 F.3d 994 (8th Cir. 1999), 98-3578NI, Moore v. United States

Docket Nº:98-3578NI
Citation:178 F.3d 994
Opinion Judge:RICHARD S. ARNOLD, Circuit Judge.
Party Name:Ira Jerome Moore, Appellant, v. United States of America, Appellee
Attorney:Counsel who presented argument on behalf of the appellant was John L. Lane of Cedar Rapids, IA. Counsel who presented argument on behalf of the appellee was C.J. Williams, AAG, of Cedar Rapids, IA.
Judge Panel:Before RICHARD S. ARNOLD and HANSEN, Circuit Judges and STROM, [1] District Judge.
Case Date:May 28, 1999
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 994

178 F.3d 994 (8th Cir. 1999)

Ira Jerome Moore, Appellant,

v.

United States of America, Appellee

No. 98-3578NI

United States Court of Appeals, Eighth Circuit

May 28, 1999

Submitted: March 9, 1999.

Page 995

Counsel who presented argument on behalf of the appellant was John L. Lane of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee was C.J. Williams, AAG, of Cedar Rapids, IA.

Before RICHARD S. ARNOLD and HANSEN, Circuit Judges and STROM, 1 District Judge.

OPINION

Page 996

RICHARD S. ARNOLD, Circuit Judge.

Ira Jerome Moore was convicted of attempted bank robbery in violation of 18 U.S.C. § 2113(a), interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2312, and conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371. The District Court 2 sentenced him as a career offender to a term of imprisonment of 210 months and was ordered to pay restitution of $ 528.00. He appeals his conviction and sentence on five grounds. We affirm.

I.

We first briefly state the facts surrounding the crimes and will provide greater detail below as each issue warrants. Moore and his co-defendant, Terry Fisher, began what the government characterized as a " multi-state crime spree" when they stole a van from a church parking lot in Vidalia, Georgia, with the intention of driving out West. The two got as far as Arkansas when they decided to switch vehicles. They then stole a white compact car from a used-car lot in Bono, Arkansas. According to Fisher's testimony, the two had very little money when they left Georgia, and by the time they reached Arkansas, they had resorted to " panhandling" for gas money. Fisher stated that Moore suggested several times during their trip that they rob a bank along the way in order to raise funds for their journey. Moore told Fisher that he had robbed a bank in Georgia a few years before, that it was easy, and that he had gotten away with it. They continued on in the second stolen vehicle and shortly arrived in Imboden, Arkansas. Fisher testified that upon driving into Imboden they noticed two banks on the highway, and Moore commented that " it would be real easy to do it right [here]." Moore then directed Fisher to write out a demand note. Moore took the note and walked to

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a nearby bank, but returned to the car a short time later and reported that the bank was closed for President's Day.

After driving around Missouri for a few days, they drove into Iowa, where they stopped to visit Fisher's 87-year-old aunt. The aunt fed them breakfast and lent Fisher a hundred dollars. When they left, Moore took a pellet gun he had found in the aunt's garage. They then filled the car with gas and proceeded to Tama, Iowa, where they checked into a motel on February 19, 1998. They spent the evening losing most of the hundred dollars at a nearby Indian casino and left the next morning with only ten or fifteen dollars. There were renewed discussions that morning about the possibility of robbing a bank, and somewhere along the way they stopped at a machine shop, borrowed a hack-saw, and sawed off the barrel of the pellet gun " to make it look more realistic."

Later that same day, February 20, 1998, they arrived in New Providence, Iowa, and decided to pull what would be their final caper. Moore, who had his face covered by a stocking cap, entered the Hardin County Savings Bank and pointed the sawed-off pellet gun at Alan Staples, the bank's only customer at the time, and Kay Clampitt, the teller and sole employee of the bank. Staples and Clampitt both testified that at first they thought it was a joke, and that after briefly looking over to Moore, they resumed their discussion about epoxy paint and simply ignored Moore's demand for money. Moore quickly left, and he and Fisher drove away. Clampitt then decided to call the police, and Moore and Fisher were stopped a short time later. Police searched the car, found the demand note from the attempted robbery in Imboden four days earlier, and arrested them both.

Moore was convicted after a jury trial that lasted four days. Fisher, who had signed a plea agreement, testified against Moore. Joseph Hartwig, a prisoner housed in the same cellblock with Moore, also testified for the government as to conversations he overheard while in jail, in which Moore admitted his crimes.

II.

Moore's first argument on appeal relates to the validity of a prior conviction in a Georgia state court which was used to qualify him as a career offender under U.S.S.G. § 4B1.1. This conviction resulted from a guilty plea entered by Moore pro se to three counts of burglary in 1987. Moore now claims this conviction was obtained in violation of his Sixth Amendment rights because his waiver of counsel was not knowing and voluntary. He says his lawyer did not advise him of any lesser included offenses, or of any potential defenses to the charges.

Generally, defendants may not collaterally attack prior convictions used for sentencing enhancements. See Custis v. United States, 511 U.S. 485, 487, 128 L.Ed.2d 517, 114 S.Ct. 1732 (1994) (sentence enhanced under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)). There is a limited exception, however, if the prior conviction was obtained in violation of the defendant's right to counsel. Id. at 496 (recognizing " that failure to appoint counsel for an indigent defendant [is] a unique constitutional defect" ). See also United States v. Strange, 102 F.3d 356, 362 (8th Cir. 1996). Under this exception, the government has the initial burden of proving the fact of conviction, and then the defendant must show that the conviction was constitutionally infirm. Strange, 102 F.3d at 362-63. The District Court found that Moore had failed to meet this burden. Whether a defendant has validly waived his constitutional right to counsel is a question involving application of constitutional principles to the facts as found, and is reviewed de novo. Wilkins v. Bowersox, 145 F.3d 1006, 1011 (8th Cir. 1998).

To forgo the assistance of an attorney validly, the defendant must make a voluntary, knowing, and intelligent waiver

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of his right to counsel. Berry v. Lockhart, 873 F.2d 1168, 1170 (8th Cir. 1989). In determining whether the waiver was knowingly and intelligently made, courts must consider the particular facts and circumstances surrounding each case, including the background, experience, and conduct of the accused. " While we prefer that the defendant be given a 'specific on the record warning of the dangers and disadvantages of self-representation'," the lack of such a warning does not necessarily render the waiver invalid. Berry, 873 F.2d at 1170 (quoting Meyer v. Sargent, 854 F.2d 1110, 1115 (8th Cir. 1988)).

The transcript of the entry of the guilty plea and a form called a " Transcript," wherein Moore acknowledged being advised of his various rights, were both introduced at Moore's federal sentencing hearing. The transcript indicates that the trial judge in Georgia engaged in a fairly extensive colloquy with Moore and his co-defendant at the time, Barney Carter, regarding their decisions to waive counsel. The judge told them that they had the right to be represented and the right to have counsel appointed at no cost. The judge also explained that " representing yourself is a dangerous act in that you may not know all the law that you might need to know in order to adequately defend yourselves or to properly present all the legal defenses that might be available to you." (Appellant's App. at 30.) Both Moore and Carter acknowledged they understood these rights and still wished to represent themselves. The Georgia judge further inquired into the defendants' mental status.

The Court: Now are you each able to hear and understand the questions that I'm asking you? By

Defendant Carter: Yes sir. By Defendant Moore: Yes sir. By the Court: Are you presently taking any medication or are you otherwise under the influence of any drugs or alcohol? By Defendant Carter: No sir. By Defendant Moore: No sir but I was. By the Court: You were what? By Defendant Moore: Under cocaine. By the Court: When was this? By Defendant Moore: This was during the time that I done this- the burglaries. By the Court: But what I'm trying to find out now is whether or now [sic] you're responsible for these decisions that you're making. In other words do you understand what we're doing here today and are you able to make judgments and decisions...

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