U.S. v. Toles

• Decision Date: 25 June 2002
• Docket Number: No. 01-5009.,01-5009.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Elliot C. TOLES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

297 F.3d 959

UNITED STATES of America, Plaintiff-Appellee, v. Elliot C. TOLES, Defendant-Appellant.

No. 01-5009.

United States Court of Appeals, Tenth Circuit.

June 25, 2002.

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Thomas Scott Woodward, First Assistant United States Attorney, (David E. O'Meilia, United States Attorney, with him on the briefs), Tulsa, OK, for Plaintiff-Appellee.

William D. Lunn, Tulsa, OK, for Defendant-Appellant.

Before BRISCOE and MURPHY, Circuit Judges, and VANBEBBER, Senior District Judge.^*

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. After 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 evidentiary hearing, the district court denied Toles' motions to suppress.

1. 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). When the government obtains incriminating statements through acts, threats, or promises which cause the defendant's will to be overborne, it violates the defendant's Fifth Amendment rights and the statements are inadmissible at trial as evidence of guilt. See United States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997) (citing Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)). The determination of voluntariness is based on the totality of circumstances. Gonzales, 164 F.3d at 1289. Relevant circumstances embrace both the characteristics of the accused and the details of the interrogation. Id. Such factors include (1) the age, intelligence, and education of the defendant; (2) the length of detention; (3) the length and nature of the questioning; (4) whether the defendant was advised of his constitutional rights; and (5) whether the defendant was subjected to physical punishment. Glover, 104 F.3d at 1579 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).

After reviewing the entire record, this court concludes that Toles' statements on July 2 were freely and voluntarily given. At both the bathroom and SCADF interviews, Toles was advised of his constitutional rights and in each instance he signed a written waiver of rights. Although Toles alleges that the agents did not inform him about the nature of the charges against him and their consequences, a defendant's confession is not coerced merely because law enforcement did not inform the defendant of all the potential charges that could be brought. See United States v. Nguyen, 155 F.3d 1219, 1222 (10th Cir.1998).

In both instances, Toles was lucid and responsive to questioning. Toles concedes that there was no evidence of the use or threat of physical punishment. At the time of the interviews, Toles was twenty-one and had completed the ninth grade prior to receiving his Graduate Equivalency Diploma while incarcerated for other crimes. Detective Nevil testified at trial that, based on his interactions with Toles, nothing suggested that he had a limited intelligence. Moreover, Toles had previously been convicted of a felony, indicating that he had previous experience with the criminal justice system. Thus, there is no evidence indicating that Toles was "unusually susceptible to coercion because of age, lack of education, or intelligence." Id. at 1222 (quotation omitted).

Furthermore, the district court's finding that there was no evidence of any threat, coercion, undue influence, or promise made in exchange for Toles' statements is not clearly erroneous. Detective Nevil testified that he did not make any promises to Toles in the courthouse restroom. Indeed, Nevil testified at trial that it was Toles who broached the subject of the Oklahoma crimes. Although Toles testified that he made the bathroom statement after discussing the benefits of cooperation and the possibility of having all the charges run concurrently, the district court's determination necessarily meant that it credited...