U.S. v. Mendoza-Cecelia

• Decision Date: 24 June 1992
• Docket Number: T,No. 90-5815,MENDOZA-CECELI,90-5815
• Citation: 963 F.2d 1467
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonardoerry Lee Greenberg, Hector Favio Marin-Hernandez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1467

963 F.2d 1467

UNITED STATES of America, Plaintiff-Appellee, v. Leonardo MENDOZA-CECELIA, Terry Lee Greenberg, Hector Favio

Marin-Hernandez, Defendants-Appellants.

No. 90-5815.

United States Court of Appeals, Eleventh Circuit.

June 24, 1992.

Mario S. Cano, Coral Gables, Fla., for Mendoza-Cecelia.

Henry M. Bugay, Miami, Fla., for Greenberg.

Hector L. Flores, Alison Marie Igoe, Asst. Federal Public Defenders, Miami, Fla., for Marin-Hernandez.

Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Lynn D. Rosenthal, Linda Collins Hertz, Carol E. Herman, Asst. U.S. Attys., Ft. Lauderdale, Fla., for U.S.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT, Circuit Judge, JOHNSON ^* and HENDERSON, Senior Circuit Judges.

JOHNSON, Senior Circuit Judge:

Defendants-appellants Terry Greenberg ("Greenberg"), Hector Favio Marin-Hernandez ("Marin-Hernandez") and Leonardo Mendoza-Cecelia ("Mendoza-Cecelia") appeal their convictions on charges arising from trafficking in marijuana. Greenberg also appeals his sentence. For the reasons which follow, we affirm appellants' convictions and Greenberg's sentence.

I. STATEMENT OF THE CASE

On November 19, 1988, Greenberg, Marin-Hernandez, Mendoza-Cecelia and three others left Santa Maria, Colombia, aboard the Apache III, a 37-foot fishing vessel of United States registry. The vessel was laden with approximately 6,500 pounds of marijuana and was destined for Key West, Florida. After extensive surveillance, a detachment of United States Coast Guard officers aboard a United States Navy vessel detained the crew of Apache III within several miles of the Grand Cayman Islands. The Coast Guard quickly discovered the marijuana and arrested the crew. The crew was held on the Navy vessel and questioned the following day. Greenberg subsequently made incriminating statements on separate occasions to a Coast Guard officer, to a Customs official and to a magistrate judge.

On December 6, 1988, the six crew members were indicted for possession with intent to distribute marijuana, in violation of 46 U.S.C.A. §§ 1903(a) and (g) (West Supp.1992) and 18 U.S.C.A. § 2 (West 1969) (Count I), and for conspiracy to distribute marijuana, in violation of 46 U.S.C.A. §§ 1903(j) and (g) (West Supp.1992) (Count II). On June 29, 1990, a jury convicted Greenberg and Mendoza-Cecelia on both counts of the indictment and Marin-Hernandez on Count II only. ¹ Greenberg received two concurrent sentences of 365 months imprisonment and a five-year term of supervised release; Mendoza-Cecelia received two concurrent sentences of 121 months imprisonment and a five-year term of supervised release; Marin-Hernandez was sentenced to a 210-month term of imprisonment and a five-year term of supervised release.

II. ANALYSIS

Appellants raise the following claims on appeal: (1) the government denied Greenberg his right to counsel as guaranteed by the Sixth Amendment and as recognized under the Fifth Amendment in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) an eighteen month delay prior to the commencement of trial violated Greenberg's right to a speedy trial under both the Speedy Trial Act and the Sixth Amendment; (3) the government's violation of the Posse Comitatus Act required dismissal of the indictment; (4) the district court committed reversible error by refusing to issue an instruction to the jury that incorporated Greenberg's defense theory; (5) the district court erroneously sentenced Greenberg as a career offender; (6) the proffered evidence was insufficient to convict Marin-Hernandez and Mendoza-Cecelia; (7) the district court's failure to sever Mendoza-Cecelia from the trial deprived him of his Sixth Amendment right of confrontation. We address each of these contentions in turn.

A. Motion to Suppress

Greenberg made incriminating statements during interrogation by law enforcement personnel and in his initial appearance before a magistrate judge. He argues that his two inculpatory statements to law officers were made subsequent to his equivocal invocation of his Fifth Amendment right to counsel and therefore were obtained in violation of the Miranda-Edwards doctrine. See id., Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Greenberg cites the Sixth Amendment in likewise asserting that the magistrate judge's failure to provide him with the assistance of counsel during his initial appearance justified suppression of his admission of guilt; alternatively, he argues that the illegality of his two prior statements rendered his statement before the magistrate judge inadmissible as "fruit of the poisonous tree."

1. Statements to Interrogating Officers

The Coast Guard apprised Greenberg of his Miranda rights upon arresting him on the Apache III. Greenberg was then brought to the Navy vessel U.S.S. Stump. The next day, Coast Guard officers read Greenberg his Miranda rights before removing him to another part of the vessel for interrogation. At the beginning of this session, Greenberg stated, "I don't know if I need a lawyer--maybe I should have one, but I don't know if it would do me any good at this point." The interrogating officers continued their questioning without responding to Greenberg's statement. Greenberg subsequently agreed to make both a written and videotaped confession. Later in the United States, Greenberg made an incriminating statement during interrogation by Customs Agent Robert Abramson.

The district court found that Greenberg's comment during the first interrogation session was ambiguous enough not "to cause law enforcement officers to pause or inquire further." Greenberg disagrees, contending that his comment constituted an equivocal request for counsel sufficient to preclude all further questions except those directed to ascertaining whether he indeed desired counsel. This Court reviews de novo the lower court's interpretation of the applicable legal standard. See United States v. Alexander, 835 F.2d 1406, 1408 (11th Cir.1988).

Once a suspect makes a request for an attorney, all questioning must cease and may not resume until an attorney is present, unless the suspect initiates an exchange with the authorities and knowingly and intelligently waives the right that he had invoked. Minnick v. Mississippi, --- U.S. ----, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990); Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 492-93, 83 L.Ed.2d 488 (1984); Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). This "rigid prophylactic rule," Smith, 469 U.S. at 95, 105 S.Ct. at 492-93, is triggered by both explicit and equivocal requests for counsel:

When a [suspect] makes an equivocal request for an attorney during a custodial interrogation, 'the scope of that interrogation is immediately narrowed to one subject and one subject only. Further questioning thereafter must be limited to clarifying that request until it is clarified.' Any statement taken by the state after the equivocal request for counsel is made, but before it is clarified as an effective waiver of counsel, violates Miranda.

Owen v. Alabama, 849 F.2d 536, 539 (11th Cir.1988) (quoting Thompson v. Wainwright, 601 F.2d 768, 771 (5th Cir.1979)).

The threshold inquiry is therefore whether Greenberg's statement to the interrogating officers constitutes an equivocal request for an attorney. The Miranda Court defined broad parameters for finding a request for counsel: the accused invokes the right by "indicat[ing] in any manner and at any stage of the process that he wishes to consult with an attorney before speaking." Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612-13, 16 L.Ed.2d 694 (1966). This Circuit has recently defined a qualifying "equivocal request" as "an ambiguous statement, either in the form of an assertion or a question, communicating a possible desire to exercise [the] right to have an attorney present during questioning." Towne v. Dugger, 899 F.2d 1104, 1109 (11th Cir.1990) (emphasis added). In Towne, the suspect during interrogation did no more than make the bare inquiry, "officer, what do you think about whether I should get a lawyer?" Id. at 1107. The district court held that "a common sense interpretation of Towne's question mandated a finding that he was not actually requesting counsel." Id. The Towne court reversed, finding that defendant had sufficiently conveyed to the interrogating officer that he was "contemplating exercising his right to have an attorney present." Id. at 1109. Because the officer did not attempt to clarify or discuss defendant's right to counsel, the court found a violation of Miranda. Id.; see also United States v. Cherry, 733 F.2d 1124 (5th Cir.1984) (defendant made equivocal request when he said, "Maybe I should talk to an attorney before I make a further statement," and then later asked the officer, "Why should I not get an attorney?"); United States v. Fouche, 833 F.2d 1284 (9th Cir.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d 218 (1988) (defendant made equivocal request when he first asked to be allowed to call an attorney, but then instead called his wife for advice and later asked the officer, "What should I do?"). ²

Greenberg's statement to the interrogating officials--"I don't know if I need a lawyer, maybe I should have one, but I don't know if it would do me any good at this point"--clearly reveals that he was "contemplating exercising his right to have an attorney present." Towne, 899 F.2d at 1109. Having indicated a "possible desire" for an attorney, see id., Greenberg made a qualifying equivocal indication.

The prophylactic reach of Miranda required the interrogating officer to clarify immediately Greenberg's equivocal statement: "where an accused gives ambiguous, vague, indefinite, or indecisive signals," the interrogating officer must "follow[ ]up questioning to clarify his or her wishes." Towne at 1109-10. Because the officer instead...