U.S. v. Worjloh

• Decision Date: 08 October 2008
• Docket Number: Docket No. 06-3129-cr.
• Citation: 546 F.3d 104
• Parties: UNITED STATES of America, Appellee, v. Gehabae WORJLOH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

546 F.3d 104

UNITED STATES of America, Appellee, v. Gehabae WORJLOH, Defendant-Appellant.

Docket No. 06-3129-cr.

United States Court of Appeals, Second Circuit.

Argued: February 11, 2008.

Decided: October 8, 2008.

Sally Butler, Bayside, N.Y., for Defendant-Appellant.

Christina Dugger, Assistant U.S. Attorney (Emily Berger, on the brief), for Benton J. Campbell, U.S. Attorney, Eastern District of New York, Brooklyn, N.Y., for Appellee.

Before: B.D. PARKER, RAGGI, and HALL, Circuit Judges.

PER CURIAM:

Gehabae Worjloh appeals from a judgment of conviction entered on July 7, 2006 in the United States District Court for the Eastern District of New York (Garaufis, J.). Worjloh was convicted following a jury trial of one count of conspiring to distribute and possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, one count of possession with intent to distribute 5 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and one count of possessing a firearm in relation to the charged conspiracy in violation of 18 U.S.C. § 924(c)(1). Worjloh was sentenced principally to 360 months' imprisonment. On appeal, he contends that various evidentiary rulings of the district court were in error, the district court provided an improper jury instruction, and that his sentence was unreasonable. We find that his contentions have no merit and affirm the judgment of the district court. However, we will vacate Worjloh's sentence and remand for re-sentencing in light of United States v. Regalado, 518 F.3d 143 (2d Cir.2008).

BACKGROUND

At trial, the government established that on March 29, 2002, New York City Police Department ("NYPD") officers executed a search warrant for 530 Hegeman Avenue in Brooklyn, New York. Police officers found a New York state identification card linking Worjloh to an apartment unit where narcotics, narcotics paraphernalia — including drug packaging materials, a 9 mm handgun, and 9 mm ammunition were recovered. He was arrested outside of the building shortly thereafter. After Worjloh requested that an item of jewelry be retrieved from his vehicle, police officers discovered another 9 mm handgun behind the driver's seat in the vehicle. Worjloh was indicted on state charges including criminal possession of a controlled substance criminal possession of a weapon, and criminally using drug paraphernalia. He made no statements to police officers about his arrest.

The government maintained that in 2001, several federal law enforcement agencies began jointly investigating a narcotics distribution organization that sold cocaine and crack cocaine in the East New York section of Brooklyn. Federal agents determined that Worjloh, his co-conspirator Adrian Payne, and various other individuals, sold crack cocaine from Worjloh's home at 530 Hegeman Avenue in Apartment 2F. On January 29, 2003, federal agents executed a warrant for his residence and recovered several bags of crack cocaine, a .22 caliber handgun, and a silencer. Worjloh was arrested on site and interviewed by federal agents. Worjloh contends that during questioning, his request for his attorney was denied. Following that request, he made several inculpatory statements which were introduced at trial about his crack cocaine distribution activities. Shortly thereafter, state authorities dismissed his pending state charges and a federal indictment was returned which, according to Worjloh, contained "offenses arising out of the evidence recovered during the 2002 New York State search warrant, the warrantless search of the appellant's vehicle and the 2003 federal search warrant."

At trial, the government introduced physical evidence from the two searches, as well as photographs, and telephone records. In addition, NYPD detectives and cooperating witnesses testified regarding Worjloh's participation in the narcotics conspiracy as well as his extensive relationship in narcotics distribution with Adrian Payne. During the defense case, Worjloh testified that he had not sold drugs and only had a social relationship with Adrian Payne. Moreover, he claimed that he had not been present in Brooklyn immediately prior to the 2002 search, despite testimony to the contrary by the government's witnesses. The jury convicted Worjloh on all counts. He was sentenced to 300 months on the two drugs counts — conspiring to distribute 50 grams or more of cocaine base and possessing with intent to distribute 5 grams or more of cocaine base to run consecutive with a sentence of 60 months on the count charging possessing a firearm in relation to the conspiracy.

Worjloh filed several pre-trial suppression motions that are at issue on this appeal. In those motions, he sought to suppress items recovered during the 2002 search by NYPD officers, claiming that a gun taken from his vehicle was the fruit of a warrantless search and that his January 2003 post-arrest statements at the police station violated the Fifth and Sixth Amendments because he was questioned by officers without the assistance of counsel. He also argued that the 2002 search warrant relied on false statements and stale information. The district court denied all of his pre-trial motions without an evidentiary hearing, as well as his subsequent motion to reconsider. Post-trial, Worjloh requested a Franks hearing claiming that the affiant in support of the state search warrant provided false testimony, and filed new motions to suppress evidence recovered during the 2002 search of his home and vehicle, as well as his post-arrest statements. The court denied his post-trial motions without a hearing.

DISCUSSION

Worjloh now brings several claims related to his prior evidentiary motions. He also contends that the district court improperly instructed the jury and engaged in judicial fact-finding.

I. Motions to Suppress

When reviewing a district court's ruling on a motion to suppress evidence, we review the court's factual findings for clear error, viewing the evidence in the light most favorable to the government. The district court's legal conclusions are reviewed de novo. See United States v. Rodriguez, 356 F.3d 254, 257 (2d Cir.2004). As an initial matter, Worjloh argues the district court erred in denying his motions to suppress inculpatory statements which, he avers, were obtained in violation of his Fifth and Sixth Amendment rights to counsel. We are not persuaded. Worjloh's claim with respect to his Fifth Amendment right to counsel is without merit as he waived that right when he reinitiated the conversation with the federal agents after having requested counsel. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). With respect to his Sixth Amendment claim, we recognize that voluntarily reinitiating conversation with the agents under these circumstances would be insufficient to waive any Sixth Amendment rights, see Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), if those Sixth Amendment rights had attached at the time of interrogation. However, because no federal charges had been brought against Worjloh at the time that he was questioned by federal officials, no Sixth Amendment right to counsel had attached as to the then uncharged federal conduct. See McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).

Worjloh relies on our holding in United States v. Mills, 412 F.3d 325 (2d Cir.2005), to support his claim that his statements made in the course of the federal investigation must be suppressed because, in connection with the pending state investigation, his Sixth Amendment rights had attached and he was represented by counsel. In fact, Mills does not reach that far. In Mills, we noted the government's concession that the state's interrogation of the defendant had violated the Sixth Amendment with respect to the pending state charges. Id. at 326. We ruled that the information obtained by state officials was not admissible in the subsequent federal prosecution because "Sixth Amendment violations are offense specific and, consequently, evidence obtained in violation of the Sixth Amendment is not admissible in subsequent prosecutions for the `same offense.'" Id. at 330 (emphasis added). Moreover, in Mills, the federal indictment occurred as a result of the state arrest and interrogation as illustrated by the government's submission of federal firearms charges virtually identical to the pending state firearm charges.

Here, federal prosecutors did not seek to offer any evidence obtained by state officials in violation of the Sixth Amendment. Instead, they sought only to introduce statements made in the course of the federal interrogation, an interrogation that was unquestionably independent of the state arrest and investigation. Thus, the facts underlying our determination in Mills are not present here. See id. at 328 (noting that "[t]he issue on this appeal is whether statements taken by local police, in violation of a defendant's right to counsel as to previously charged state offenses but prior to the filing of federal charges for the same crime, can be admitted in the federal prosecution" (emphasis added)). Although Worjloh's state charges were pending at the time that he was interrogated by the federal agents, any Sixth Amendment rights related to the state offenses would not serve to restrict the ongoing investigation into uncharged federal crimes where, as here, that investigation is not tied to the state's conduct. Consequently because the federal interrogation was not conducted in violation of the Sixth Amendment and the questioning of Worjloh at issue was done exclusively by federal agents, there is no need to consider whether the state and federal prosecutions arose from the "same offense."¹ See Mills, 412 F.3d at 330.

We now make clear that Mills' holding is limited to situations in which federal prosecutors seek to...