U.S. v. Alexander

Citation447 F.3d 1290
Decision Date15 May 2006
Docket NumberNo. 05-6088.,05-6088.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Donnie K. ALEXANDER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

Randal A. Sengel, Assistant United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Before TYMKOVICH, HOLLOWAY, and EBEL, Circuit Judges.

TYMKOVICH, Circuit Judge.

While serving time as a federal prisoner in Oklahoma, Donnie K. Alexander helped his friend, Lonnie Sawyer, assault a fellow inmate. Alexander invoked his Fifth Amendment right to remain silent when first questioned about his role in the fight. Prison officials ceased questioning. However, they later placed Alexander in a cell next to Sawyer, after Sawyer requested an opportunity to convince Alexander that he should discuss his participation in the attack with prison authorities. Following the friends' conversation, Alexander admitted to officials his role in planning and carrying out the assault.

A jury in the Western District of Oklahoma found Alexander guilty of assault resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6). Alexander asks us to reverse his conviction for three reasons: (1) the district court should have suppressed the statements he made to the FBI after Sawyer convinced him to confess his role in the assault; (2) the district court constructively amended the grand jury indictment by instructing the jury on aiding and abetting; and (3) the government did not present sufficient evidence for the jury to conclude that the victim suffered serious bodily injury.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Finding no legal error, we AFFIRM.

I. Background

Donnie K. Alexander and Lonnie Sawyer, friends and inmates at the Federal Correctional Institute in El Reno, Oklahoma (El Reno), planned an attack on Curt Howell, another inmate at El Reno. Sawyer, who admitted to initiating the assault, persuaded Alexander to participate after describing to him the persistent abuse he had suffered at the hands of Howell.

Sawyer and Alexander carried out their plan one evening. Waiting until Howell was returning alone from a shower, Sawyer repeatedly struck Howell with a belt to which he attached two padlocks. Although Howell attempted to avoid the assault, Alexander ran alongside him, both to restrain him and ensure that no other inmates could assist. Alexander never actually beat Howell with the belt; however, he actively engaged in the assault in several ways — (1) punching Howell as he ran alongside him, (2) tackling Howell to the ground, (3) punching Howell as he lay on the ground, and (4) kicking Howell in the head with his steel-toed work boots.

Prison officers identified both Sawyer and Alexander during the assault. In a subsequent investigation by the FBI, the FBI questioned Alexander first. However, he answered no questions, invoked his Fifth Amendment right to remain silent, and was returned to his cell. Alexander never invoked his right to counsel.

The FBI next questioned Sawyer, who waived his Miranda rights and confessed. After implicating Alexander in the assault, Sawyer expressed concern to his FBI interrogators for Alexander. He worried that Alexander's refusal to cooperate might adversely affect Alexander's possibility of receiving a reduced sentence. He emphasized that Alexander refused only because "prison code" forbade him from speaking with the authorities until after Sawyer's confession. Sawyer, therefore, requested to speak with Alexander to convince him to give a statement. The FBI acquiesced and placed the two men in adjoining cells that night; however, they told Sawyer that they would not resume any questioning of Alexander unless Alexander volunteered.

In their cells, Alexander and Sawyer discussed their plight. The conversation focused on Sawyer's concern with being labeled a "snitch," based on his confession to authorities which detailed Alexander's role in the attack. Worried that inmates might harass Sawyer as a consequence of this confession, Alexander agreed to contact the FBI and give them a statement. The FBI returned the following morning. Alexander was again read his Miranda rights; this time, however, he waived his rights, signed an "Advice of Rights" form, and proceeded to make a statement in which he admitted to his participation as a lookout, his attempt to contain Howell during the attack, tackling Howell, and kicking Howell as he lay on the ground. These statements were introduced at trial.

II. Proceedings Below

Alexander filed a pretrial motion to suppress the statement he gave to the FBI claiming it resulted from an unlawful interrogation. The district court denied the motion, finding that Sawyer was not acting as an agent of the government when he persuaded Alexander to confess, or, alternatively, that Sawyer's discussion with Alexander did not constitute unlawful police interrogation. At the close of the government's case and after the defense rested, Alexander moved for a judgment of acquittal based on the government's failure to charge him with aiding and abetting in the indictment. He also moved for acquittal based on insufficient evidence to show serious bodily injury. The district court denied both motions.

III. Analysis

Alexander raises three issues on appeal. First, he argues that the district court erred in denying his pre-trial motion to suppress the statement he gave to the FBI. Second, he claims the government's failure to indict him on aiding and abetting, the charge on which he was ultimately convicted, violated his due process rights. Finally, he argues the evidence submitted to the jury was insufficient to show Howell suffered serious bodily injury as defined by 18 U.S.C. § 1365.

A. Self-Incrimination

The Fifth Amendment requires the government to cease questioning a suspect if he invokes his right to remain silent and permits the government to reopen questioning only if the suspect consents. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); United States v. Glover, 104 F.3d 1570, 1581 (10th Cir.1997). Alexander argues the FBI violated this fundamental principle by improperly reinitiating questioning through Sawyer's intervention. The government urges that, to the contrary, because Sawyer's persuasion did not constitute unlawful governmental interrogation, Alexander voluntarily chose to reinitiate questioning with the FBI.

When reviewing a district court's denial of a motion to suppress, we view the evidence in the light most favorable to the prevailing party and accept the court's factual findings unless clearly erroneous. United States v. Johnson, 364 F.3d 1185, 1188 (10th Cir.2004). A finding is clearly erroneous only if no factual support can be found in the record or if it is obvious to this court that an error has occurred. Glover, 104 F.3d at 1579. "The credibility of witnesses, the weight to be given evidence, and the reasonable inferences drawn from the evidence fall within the province of the district court." United States v. Long, 176 F.3d 1304, 1307 (10th Cir.1999).

The seminal case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), stands for the well-known proposition that a suspect in custody has a constitutional right under the Fifth Amendment to remain silent. See U.S. Const. amend. V ("No person . . . shall be compelled in any criminal case to be a witness against himself. . . ."). If a suspect invokes this right, then the admissibility of any further statements by the suspect depends "on whether his right to cut off questioning was scrupulously honored." Mosley, 423 U.S. at 104, 96 S.Ct. 321 (quotation marks omitted). If an individual expresses his desire to remain silent, all interrogation must cease. Id. at 100, 96 S.Ct. 321. In limited circumstances, though, police may reinitiate questioning, but only if four conditions are met:

(1) at the time the defendant invoked his right to remain silent, the questioning ceased; (2) a substantial interval passed before the second interrogation; (3) the defendant was given a fresh set of Miranda warnings; and (4) the subject of the second interrogation [is] unrelated to the first.

Id. at 104-05, 96 S.Ct. 321.

This four-part test is inapplicable, however, if the suspect, and not the police, reinitiates contact and agrees to questioning. Glover, 104 F.3d at 1581. In Glover, we confronted the admissibility of a defendant's confession "where the individual in custody, rather than the police, initiate[d] further discussion." Id. We held that in such a circumstance a defendant's right to remain silent is not violated.

[A] person in custody, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication . . . . According to the [Supreme] Court, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to [an arrestee's] voluntary, volunteered statements and using them against him at trial."

Id. (emphasis in original) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)). Simply stated, a defendant — even if he has asserted the right to counsel — may choose to reinitiate contact with the police so long as the government does not coerce him into doing so.

With these principles in mind, we turn to Alexander's argument that Sawyer — acting on behalf of the government — persuaded Alexander to confess, and in doing so effectively overcame his will through unconstitutional governmental coercion.

1.

An agent of the government, like the government itself, is restrained by the language of the Constitution. Private parties are not. See Colorado v. Connelly, 479 U.S. 157, 166, 107...

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