U.S. v. Carter

Decision Date25 September 1990
Docket NumberNo. 89-3516,89-3516
Citation910 F.2d 1524
Parties30 Fed. R. Evid. Serv. 1087 UNITED STATES of America, Plaintiff-Appellee, v. Steven CARTER, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

David E. Bindi, Asst. Atty. Gen., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Matthew F. Kennelly, Cotsirilos, Crowley, Stephenson, Tighe & Streicker, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., and RIPPLE, Circuit Judges, and CRABB, Chief District Judge. 1

CRABB, Chief District Judge.

Defendant Steven Carter was charged in a two-count indictment under 18 U.S.C. Sec. 2113(a) with robbing the Acme Continental Credit Union in Chicago on January 9, 1989 and again on January 20, 1989. The jury returned verdicts of guilty on both counts. Defendant was sentenced pursuant to the United States Sentencing Guidelines as a career offender to consecutive sentences of 240 months on Count I and 22 months on Count II. Defendant challenges his convictions, alleging pre-trial and trial errors, and he disputes the district court's classification of him as a career offender under the Sentencing Guidelines. We affirm defendant's convictions on both counts and we affirm the district court's sentence based on its determination that defendant is a career offender under the guidelines.

I. FACTUAL BACKGROUND

The evidence adduced at trial establishes the following facts.

On January 9, 1989, a robbery took place at the Chicago branch of the Acme Continental Credit Union, located on the fifth floor of the CNA Insurance building in Chicago. The robber gained access to the area behind the teller counter through an unlocked security door separating that area from the lobby, struck two of the tellers with his fist, grabbed cash from one of the cash drawers, and fled with $14,198.

On January 20, 1989, the same credit union was robbed in a manner similar to that on January 9. On this occasion, as the robber fled, he was chased by a man who saw him run into the stairwell. This person followed the robber out of the building and down the street, saw him get into a car, and noted the license number.

A trace on the license number established that the car belonged to defendant. He had purchased it with cash a few days after the first robbery.

Both the Chicago Police Department and the Federal Bureau of Investigation conducted investigations into these robberies. Joseph Doorley was the FBI agent assigned to the case. In late January or early February, Doorley learned that the Chicago Police Department planned to place a hold on defendant when he next reported to his parole officer in Chicago. Defendant was on parole from a prior conviction and was required to report to his parole officer on February 16, 1989. 2 Upon learning this, Doorley determined that he would wait to see whether the Chicago police would be able to arrest defendant on that date.

At approximately 2:30 p.m. on February 16, 1989, the Chicago police arrested defendant at the parole office. Although Doorley had planned to be at the parole office with the Chicago officers, he was unable to be there because he was out of town fulfilling a training obligation.

Defendant was brought to the police station about an hour after his arrest at the parole office, together with his fiance, Lashan Riggins, who was four months pregnant with his child. Upon arriving at the station, defendant was questioned briefly by Chicago Police Detective Steve Glynn and denied any involvement in either robbery. He was then placed in a lineup where he was identified by five of the credit union employees, by the man who chased him out of the building, and by another person who had seen him in the building on January 9.

Assistant State's Attorney Kathryn Gallanis arrived at the police station shortly after the lineup identifications. At 8:45 p.m., Gallanis and Glynn interviewed Lashan Riggins for fifteen minutes. The interview resulted in a written, signed statement. Next, Gallanis and Glynn questioned defendant. When they told him he had been identified, defendant confessed to both robberies. He asked that they tell his parole officer that he had cooperated. At 11:45 p.m., defendant read through written statements that Gallanis had prepared, made some corrections, and then signed them. Afterward, defendant was allowed to speak privately with Riggins for a few minutes before being taken to lockup. All told, approximately nine hours elapsed between defendant's arrest and his decision to confess.

The next morning, agent Doorley learned that defendant had been arrested by the Chicago police. Doorley had defendant transferred to federal custody.

Prior to trial, defendant filed a motion to suppress the confessions on the ground that they were involuntary because of the length of time he had been held in custody before being brought to a magistrate, and because they were coerced by the threat that his fiance would be charged with robbery if he did not confess.

At the hearing on this motion, Detective Glynn testified that defendant had asked about Riggins on three occasions while in custody. The first was during the initial questioning prior to the lineup. Defendant asked where Riggins was and Glynn responded that she was in an upstairs room and was fine. The second was after the lineup. Defendant asked whether Riggins would be charged with anything. Glynn told him that he did not know because the assistant state's attorney had not finished investigating her. However, Glynn admitted that he knew that the assistant state's attorney had no intention of prosecuting Riggins at the time he made this statement. The third occasion occurred after defendant had confessed. Glynn told him that he soon would be allowed to speak with her privately.

Defendant testified at the hearing that Glynn told him three or four times between the first interview and the lineup that Riggins would be in trouble, and would have her baby in jail, if he did not confess. Also, according to defendant, after the lineup Glynn repeated that threat twice more. The second post-lineup threat was made right before defendant confessed. Defendant was told that Riggins would be charged unless he confessed. Defendant testified that at that point, his only concern was to get Riggins out.

Riggins testified that after she was brought to the police station, she was told by Glynn that she had been identified as a participant in a robbery, and that if she did not cooperate she would have her baby in jail. This threat was repeated at least once more. On cross-examination, she testified that when she spoke to defendant at the police station, he told her he confessed in order to get her out, but she admitted to previously telling an assistant United States attorney and an FBI agent that defendant confessed to her that he had committed the robberies.

The district court denied defendant's motion to suppress the confessions. It ruled that the delay in bringing defendant before a magistrate was a factor to be considered in determining the voluntariness of the confessions, but that it was not decisive for two reasons. First, the delay was justified by the need to complete the investigation: to determine whether the witnesses could make an identification, and, if so, to allow a period for interrogation of defendant. Second, assuming the delay was unnecessary, it had no measurable influence on defendant's decision to make the statements.

With respect to the alleged threats made to defendant regarding Riggins's fate, the court found that Glynn was telling the truth about his conversations with defendant about Riggins and that defendant was lying. Also, a finding was made that Riggins herself was not threatened. The court found that in Riggins's initial contact with Glynn, she was informed that a woman may have been involved in the second robbery, but that the statement was offered as information, not as a threat, and that it was made before Glynn reached his conclusion that Riggins was not involved.

II. DISCUSSION
A. Admissibility of Defendant's Confessions

Defendant argues that the district court erred in refusing to suppress his confessions because they were made after he was in custody for more than six hours, but before his presentment to a magistrate, in violation of his rights under McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), Fed.R.Crim.P. 5(a), and 18 U.S.C. Sec. 3501(c). In the alternative, defendant argues that his confessions were inadmissible because they were induced by threats to have his pregnant fiance charged if he did not cooperate. Both of defendant's arguments are unavailing.

1. Delay in Presentment

In McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), the Supreme Court ruled that once a defendant is arrested, he must be taken before a judicial officer without unnecessary delay for the purpose of having him advised of his rights and for a prompt determination of probable cause, and that failure to do so would result in suppression of any statements the defendant made while in custody. 3 In an effort to limit the effect of the McNabb-Mallory rule, Congress enacted 18 U.S.C. Sec. 3501. Subsection (a) provides that confessions given voluntarily are admissible, and subsection (b) lists several factors that are to be considered in determining voluntariness, including length of time in custody before presentment. Subsection (c) provides that delay in presentment alone shall not render inadmissible a confession made within six hours of arrest:

In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the...

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