U.S.A v. Cook

Citation599 F.3d 1208
Decision Date05 April 2010
Docket NumberNo. 08-2297.,08-2297.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Glenn Dell COOK, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

COPYRIGHT MATERIAL OMITTED

Richard C. Williams, (Gregory J. Fouratt, United States Attorney, with him on the briefs), Assistant United States Attorney, Las Cruces, NM, for Plaintiff-Appellant.

Peter Schoenburg, (Marc M. Lowry with him on the brief), of Rothstein, Donatelli Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Albuquerque, NM, for Defendant-Appellee.

Before BRISCOE, McWILLIAMS, and MURPHY, Circuit Judges.

BRISCOE, Circuit Judge.

In this interlocutory appeal, the United States challenges the district court's suppression of statements Defendant Glenn Dell Cook made to a jail-house informant. Also before this court is Cook's motion to dismiss the United States' appeal as untimely filed.

We have jurisdiction over the matter pursuant to 18 U.S.C. § 3731 ("An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence...."). We deny Cook's motion to dismiss the United States' appeal, reverse the district court's order to suppress Cook's statements, and remand for further proceedings.

I

The essential facts of this case are not disputed. On December 30, 2004, cooper ating witness Phillip Gantz was found dead in the early morning hours in a medical unit cell at Doha Ana County Detention Center ("DACDC") in Las Cruces, New Mexico. At the time, Cook and two other inmates were housed in the same cell with Gantz. Cook was incarcerated at the DACDC as a federal pre-trial detainee in connection with a federal drug case.

Investigators with the local sheriff's office responded to the scene, and although the cause of Gantz's death was not apparent, his death was thought to be from natural causes because Gantz was asthmatic. The sheriff's office investigators spoke briefly with Cook and the two other inmates who had also been housed in Gantz's cell. All three stated that they had slept through the night and did not see or hear anything. The next day, after learning from an autopsy that Gantz died from strangulation, the sheriff's office investigators began investigating the case as a homicide and spoke to Cook again and in more detail at the DACDC.1

Two months later, in March 2005, sheriffs office investigators returned to DACDC to follow up on information that one of Cook's cellmates had recently admitted to killing Gantz. While at the DACDC conducting interviews, the sheriff's office investigators had Cook brought from his housing area to an interview room for questioning. Almost immediately after being brought to the interview room, Cook stated that he did not want to speak to the investigators and that he had a right to an attorney. Cook went to the door and asked to be returned to his cell. The interview was terminated and Cook was taken back to his cell.

The next month, in April 2005, the sheriffs office and the FBI received informa-tion from a cooperating informant who also was incarcerated at the DACDC on federal charges. The cooperating informant stated that Cook told him about Cook's role in the Gantz murder, as well as the involvement of Cook's two cellmates. The cooperating informant was never a suspect in Gantz's murder, and he was never implicated in the events surrounding Gantz's death. However, the cooperating informant was himself facing a lengthy federal sentence. The United States promised to recommend leniency for the cooperating informant should he agree to approach Cook and question him about Gantz's murder.

The FBI then became involved in the Gantz murder investigation, and the sheriffs office withdrew shortly thereafter. The FBI was not informed of Cook's March 2005 encounter with the sheriff's office investigators, or that he invoked his Miranda rights during that encounter.

In June 2005, through the efforts of the FBI, the cooperating informant was wired with two recording devices and placed in a cell at the DACDC with Cook. The placement of the cooperating informant and Cook in the same cell was the result of an orchestrated mock "reclassification day" in the DACDC. The cooperating informant asked Cook about the Gantz murder and Cook described the roles that each of the three inmates played in killing Gantz. This recorded statement was suppressed by the district court and is now the subject of this appeal.

Cook and his two cellmates were eventually charged in a five-count indictment with offenses related to the murder of Gantz. Cook subsequently filed a motion to suppress all statements made to the cooperating informant, and the district court held a hearing on the motion. Cook argued that after he invoked his Miranda rights in March 2005, the United States improperly reinitiated contact with him in June 2005 when the FBI arranged for the cooperating informant to talk to Cook about the Gantz murder, arguing that the United States' conduct violated Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), Edwards v. Arizona 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and United States v. Alexander, 447 F.3d 1290 (10th Cir.2006). Cook also argued that the challenged statement was involuntary because Cook believed the cooperating informant's motivation in asking about the Gantz murder was to determine if Cook was cooperating with the government, which the cooperating informant could then expose within the DACDC.

The United States argued that at the time of the challenged statement, Cook viewed the cooperating informant as a fellow inmate and was therefore not in a police-dominated atmosphere so as to implicate the concerns underlying Miranda. The United States also argued that Cook was not in Miranda custody at the time of the challenged statement and therefore Miranda and Edwards did not apply.

The district court entered an order granting Cook's motion to suppress on September 29, 2008. The district court found: (1) in March 2005, Cook unequivocally invoked his right to counsel and right to remain silent, and never subsequently waived those rights; (2) the cooperating informant was an agent of the government when he questioned Cook in June 2005; (3) the cooperating informant's questioning of Cook violated the Constitution because reinitiation of interrogation after invocation of Miranda rights is constitutionally prohibited; (4) although a substantial interval had passed between the March 2005 questioning and the cooperating informant's questioning in June 2005, Cook was not given fresh Miranda warnings, and the subject of the June 2005 questioning wasthe same as the March 2005 questioning. Based upon these findings, the district court concluded that the government violated Miranda when it re-initiated questioning of Cook and granted Cook's motion to suppress his June 2005 statements.

On October 6, 2008, the United States filed a motion to reconsider. The United States stated that it filed the motion "to clarify that its arguments also include that (1) there was no custodial interrogation and thus Miranda did not apply and, regardless, (2) there was a break in custody between the invocation and the statement and thus Edwards did not apply." Aplt App. at 186. The district court entered an order denying the motion to reconsider on November 4, 2008. On December 2, 2008 the United States filed a notice of appeal. Shortly thereafter, Cook filed his motion to dismiss the United States' appeal as untimely filed.

II
A. Appellate Jurisdiction

A timely notice of appeal is "mandatory and jurisdictional." Bowles v Russell, 551 U.S. 205, 209, 127 S.Ct. 2360 168 L.Ed.2d 96 (2007). The United States had thirty days to appeal the district court's order. 18 U.S.C. § 3731; see also Fed. R.App. P. 4(b)(1)(B). In a criminal case, a timely motion for reconsideration defined as one filed within the time to appeal, postpones the time to appeal until the court disposes of the motion. See United States v. Healy, 376 U.S. 75, 78, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964). A timely motion for reconsideration renders the original judgment non-final for purposes of appeal as long as the motion for reconsideration is pending, whether the issue involved is factual or legal. United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976).

In United States v. Ibarra, 502 U.S. 1, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991), the Supreme Court reversed this court's decision that the government's timely motion to reconsider based on grounds previously abandoned by the government did not postpone the time to appeal. The Supreme Court reaffirmed the general rule it had set forth in Healy. Id. at 6-7, 112 S.Ct. 4. The Court stated:

[T]here is no certain way of deciding in advance which motions for reconsideration have the requisite degree of merit, and which do not. Given this, it is far better that all such motions be subsumed under one general rule—the rule laid down in Healy. Without a clear general rule litigants would be required to guess at their peril the date on which the time to appeal commences to run. Prudent attorneys would be encouraged to file notices of appeal from orders of the district court, even though the latter court is in the course of considering a motion for rehearing of the order. Less prudent attorneys would find themselves litigating in the courts of appeals whether a motion for reconsideration filed in the district court had sufficient potential merit to justify the litigant's delay in pursuing appellate review. Neither development would be desirable.

Id. at 7, 112 S.Ct. 4 (internal citations omitted). With the strong preference for the clear, general rule of Healy in mind, we turn to the motion for reconsideration in this case.

Here, Cook argues that the government's motion was not a true motion for reconsideration and therefore did not postpone the time in which to appeal. Cook contends that the motion merely sought...

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