U.S. v. Barner

• Decision Date: 29 June 2009
• Docket Number: No. 08-10080.,08-10080.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Javado BARNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

572 F.3d 1239

UNITED STATES of America, Plaintiff-Appellee, v. Javado BARNER, Defendant-Appellant.

No. 08-10080.

United States Court of Appeals, Eleventh Circuit.

June 29, 2009.

L. Burton Finlayson (Court-Appointed), Atlanta, GA, for Defendant-Appellant.

William L. McKinnon, Jr., John Andrew Horn, Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before BIRCH and BARKETT, Circuit Judges, and KORMAN,^* District Judge.

KORMAN, District Judge:

Javado Barner appeals from a judgment, entered upon a jury verdict, convicting him of one count of possession of MDMA, commonly known as ecstasy, with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The ecstasy, which was the subject of the count of conviction, was obtained in one of a series of home invasions in the Atlanta area that were committed by Barner and his co-conspirators. While he did not personally participate in the home invasion from which this ecstasy was stolen, he was provided with some of it for the purpose of distribution.

The basic facts underlying Barner's conviction are fairly simple. Nevertheless, the case has had a long and complicated procedural history, including his withdrawal of a plea of guilty to the fourth superseding indictment and a successful appeal by the United States from an order of the district court dismissing the fifth superseding indictment on the ground that "the facts of this case warranted a presumption that [it] resulted from prosecutorial vindictiveness." United States v. Barner, 441 F.3d 1310, 1312 (11th Cir.2006). We presume familiarity with the factual and procedural history, and describe it below only to the extent necessary to address the issues raised in this appeal.

DISCUSSION

Barner challenges the district court's admission of certain confessions and statements, the denial of his motion to dismiss the fifth superseding indictment on the ground it was motivated by actual vindictiveness, and the sufficiency of the evidence. He also raises five separate claims of error relating to his sentence and the application of the Sentencing Guidelines. While we affirm the judgment of conviction, we remand the case for resentencing.

A. The Pretrial Motions

Barner first argues that the district court erred in denying his motion to suppress certain confessions and admissions that he had made on December 19, 2001, December 31, 2001, and February 26, 2002. Although his brief on appeal argues that the district court erred in admitting "four of Barner's statements at trial," the brief does not identify or address the fourth statement that he claims was erroneously admitted. We observe that Barner's arguments in support of the motion to suppress were addressed in the thorough and comprehensive report and recommendation of the U.S. magistrate judge, which was filed after an evidentiary hearing and which the district judge adopted. Because we agree that Barner's motion to suppress was properly denied, we address here only those arguments that require some additional discussion.

The December 19, 2001 Statement

On December 19, 2001, while incarcerated for an unrelated crime, Javado Barner was visited at the Clayton County Jail by Craig Kailimai, of the Atlanta Police Department, then assigned to the Bureau of Alcohol, Tobacco & Firearms. During this interview Barner provided Kailimai with information about several home invasions in the Atlanta area and about his own possession of ecstasy. While Barner denied personal involvement in any of the home invasions, he did admit to having received ecstasy, taken from the home of Michael Ogburn by one of the home invasion participants, which Barner intended to distribute. Although Barner was given his Miranda warnings and signed an acknowledgment that he understood his rights and that he was willing to waive them, he claims that he was not fully advised of the nature of the crime about which he would be questioned. Specifically, he contends that the waiver of his Miranda rights was not knowing and voluntary because Kailimai failed to advise him that he was actually conducting a drug investigation, rather than a home invasion investigation. This argument is without merit.

The dichotomy between the home invasion investigation and the drug investigation is artificial. In committing the home invasion robberies, Barner and his co-conspirators targeted drug dealers. Indeed, the indictment alleged that "[t]he conspiracy was to obtain ... drugs, firearms, money and other valuables, and to distribute the drugs and other valuables for profit." More significantly, the Supreme Court has "never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights." Moran v. Burbine, 475 U.S. 412, 422, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); see also Colorado v. Spring, 479 U.S. 564, 576-77, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987). Rather, he must simply be aware that he may remain silent and request a lawyer, and that his statements may be used against him. Moran, 475 U.S. at 422-23, 106 S.Ct. 1135. These rights were explained to Barner in the course of a tape-recorded interview. Consequently, the December 19 statement was properly admitted. See Agee v. White, 809 F.2d 1487, 1494-95 (11th Cir.1987).

The December 31, 2001 Statement

After the December 19, 2001 interview, Barner regularly called Kailimai to provide further information and express his continued interest in cooperating. The following testimony captures the flavor of what was essentially a dialogue that continued after the December 19 interrogation:

Assistant U.S. Attorney: And did Mr. Barner continue to try to give you information about Johnathan Dale and the other defendants in the case?

Kailimai: Yes, he had a willingness. He continued to want to give information so much that he advised me that he would provide names or possible — I think it was possible names and locations of other people that the robbery crew had done home invasions on.

Q: And, so, after Mr. Barner made that offer to provide you with names and locations, did you then go talk to him again at the Clayton County Jail on December 31st of 2001?

A: Yes. I — during one of the conversations, when he said he could provide that, I'd asked him to try and work on it and try to prepare something, and then I would return. And, then, I did return on December 31st and obtain that information.

Barner himself testified that the December 31 meeting with Kailimai took place in the visitors' booth, and that they "talked between the glass to each other, and the first thing, like he said, he asked me did I have the list, and I think I pulled out the list and gave him the names that were on the list." The meeting was "real short."

Barner alleges that his December 31, 2001 statement was taken improperly without Miranda warnings and in violation of his Sixth Amendment right to counsel. Nevertheless, he does not support this claim with any legal argument or citation of authority. We reject his Miranda claim, because Barner had earlier been advised of his rights, and there was no need to do so at a subsequent interview which he initiated.

While "there is no requirement that an accused be continually reminded of his rights once he has intelligently waived them," Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir.1975), a delay of twelve days between interrogation sessions without repetition of the Miranda warnings would give us some pause. Indeed, in Biddy v. Diamond, upon which the U.S. Attorney relies, the defendant was asked whether she remembered the rights that had been administered twelve days earlier, and she responded that she did. Id. Because of this acknowledgment, the Fifth Circuit held that "a further delineation ... of [the defendant's] rights, which she had stated that she understood from prior explanations, would have been needlessly repetitious." Id.

Barner made no such acknowledgment. Nevertheless, other circumstances obviated the need for the reiteration of the Miranda warnings. Of particular significance is the fact that the December 31 interview was initiated by Barner, and was conducted under circumstances that would not ordinarily require Miranda warnings. Although Barner was in jail on another charge at the time, a form of custody that would generally require the administration of the Miranda warnings, Mathis v. United States, 391 U.S. 1, 5, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968), "incarceration does not ipso facto render an interrogation custodial," Leviston v. Black, 843 F.2d 302, 304 (8th Cir.1988). See also Illinois v. Perkins, 496 U.S. 292, 299, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) ("[t]he bare fact of custody may not in every instance require a warning even when the suspect is aware that he is speaking to an official."). On the contrary, "in various settings, the interrogation of jail and prison inmates has been held not to be subject to Miranda." 2 Wayne R. LaFave et al., Criminal Procedure 724 (3d ed.2007).

One such setting is where an incarcerated defendant "initiated the police inquiry," the interview "arose out of [his] desire to speak with the police about the [offense]," and the interview took place, not in a jail cell, but under circumstances which suggested that the defendant was free to terminate the conversation. Leviston, 843 F.2d at 304. The reason for this exception derives from the purpose of the Miranda warnings. As the Supreme Court has explained in an analogous context, Miranda warnings are required because a "[c]ustodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers' will and to confess. It is unlikely that a probation interview [to which the probationer was compelled to submit], arranged by appointment at a mutually convenient time, would give rise to a similar impression." Minnesota v....