U.S. v. Makes Room

• Citation: 49 F.3d 410
• Decision Date: 01 March 1995
• Docket Number: No. 94-2686,94-2686
• Parties: UNITED STATES of America, Appellee, v. Willard MAKES ROOM For Them, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 410

49 F.3d 410

UNITED STATES of America, Appellee, v. Willard MAKES ROOM For Them, Jr., Appellant.

No. 94-2686.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 16, 1994.

Decided March 1, 1995.

Robert Anderson, Pierre, SD, argued, for appellant.

Dennis R. Holmes, Pierre, SD, argued, for appellee.

Before MAGILL, Circuit Judge, CAMPBELL, Senior Circuit Judge, ^* and LOKEN, Circuit Judge.

MAGILL, Circuit Judge.

Willard Makes Room For Them, Jr. (Makes Room), appeals his conviction and sentence for second degree murder, presenting five issues on appeal. We affirm the conviction and sentence in all respects save one. We reverse the two level enhancement under U.S.S.G. Sec. 3B1.1(c) for leadership role and remand for resentencing.

I. BACKGROUND

This case arises from an unfortunate mix of juveniles, ¹ alcohol and weapons. The events giving rise to the charged offense occurred on the Rosebud Indian Reservation in South Dakota. On the afternoon of November 2, 1993, Makes Room, who was nineteen at the time, and his older brother Dominic began drinking heavily while visiting the reservation. By approximately 10 p.m., the brothers wound up at the home of Phyllis Tools in the nearby town of Parmelee, where they met two juvenile cousins and continued to drink.

A group of eight juveniles was cruising the streets of Parmelee in a Chevrolet Impala that night. After cruising around town and out to a nearby water tower, the group (which included the fourteen-year-old victim) drove by Ms. Tools' house. While driving by, the Impala "spun out" and the occupants threw a stick at the people standing in Ms. Tools' yard. One of Makes Room's cousins identified the car, and the cousins obtained two baseball bats from Ms. Tools' house and placed them in Makes Room's Oldsmobile in preparation for a fight. The Impala drove by Ms. Tools' house again, and then parked on "water tower hill" where it began to flash its headlights. Makes Room, Dominic and the two cousins saw this and drove to water tower hill. On the way, Makes Room's Oldsmobile became stuck in a ditch. Meanwhile, the Impala drove with its lights off from water tower hill into town and back onto an adjacent hill known as Boob's Hill. The Impala, too, became stuck.

Dominic fell down while trying to free the Oldsmobile and was too drunk to get back up. Makes Room and his cousins decided to surprise the juveniles and take their Impala in order to free Makes Room's Oldsmobile. The trio carried the baseball bats and a metal bar, and when they reached the Impala, they found the seventeen-year-old driver jacking it up. The victim was still inside the car, and the other juveniles were standing around the back of the Impala. There was a brief scuffle, and the driver and one of the juveniles ran away, chased by Makes Room's cousins. The cousins returned after losing their quarry. One by one, all the occupants of the Impala, except the victim, fled.

The victim decided to protect himself by locking himself in the Impala. The cousins began smashing the windows of the Impala without knowing that the victim was in the car. When they discovered the victim, Makes Room's older cousin punched him. The younger cousin dragged him out of the car by the hood of his sweatshirt. The victim broke free and fled, but the younger cousin threw the metal bar at him and knocked him down. Makes Room and his cousins each hit the victim with their weapons several times. Makes Room then instructed his younger cousin to hold the victim so that he could hit him with the metal bar. In a wild swing, Makes Room hit both the victim and the younger cousin, who released the victim.

The victim once again fled, but Makes Room caught him and began to beat him. The older cousin attempted to stop the beating, but Makes Room told the cousin to leave him alone. At this point, the two cousins fled. Makes Room later returned to the Oldsmobile, where he found Dominic passed out. The pair ran into a creek bed, where they stayed until the next morning (November 3).

The next morning, the pair returned to Ms. Tools' house, and Makes Room began drinking again. At approximately 11 p.m. the night of November 3, Makes Room was arrested on unrelated tribal bench warrants. He was taken to Bureau of Indian Affairs jail and held there overnight. The next morning, Makes Room was offered breakfast, but he only drank coffee. At approximately noon, FBI Special Agent Paul Pritchard and another agent interviewed Makes Room. The interview took place in a large well-lighted room. Makes Room was not restrained during the interview, and no threats or promises were made to him.

Agent Pritchard informed Makes Room of the nature of the investigation, and of Agent Pritchard's role as investigator. Agent Pritchard informed Makes Room of his Miranda rights both orally and in writing and asked if Makes Room would be willing to participate in an interview. Makes Room agreed to participate in the interview and signed a standard waiver form. Makes Room told Agent Pritchard that he was not intoxicated and Agent Pritchard observed that Makes Room was sober, uninjured, alert and attentive. Then, over an approximately two-and-one-half-hour period, Makes Room made a general confession. Makes Room was arrested later that day on a second degree murder charge. When asked to identify the murder weapon the next day, Makes Room invoked his Miranda right to have counsel present.

Makes Room filed a motion to suppress statements made during his interview with the FBI investigators, which was denied. On April 19, 1994, a jury trial was conducted before the Honorable Lawrence L. Piersol. The jury returned a verdict of guilty on the charged offense of second degree murder. Due to scheduling difficulties, the case was transferred to the Honorable John B. Jones for sentencing. On June 28, 1994, a sentencing hearing was held, and Makes Room was sentenced to a term of 192 months imprisonment. Makes Room timely appealed his conviction and his sentence.

II. DISCUSSION

Makes Room presents five arguments on appeal. First, Makes Room argues that the district court erred when it refused to suppress his statements made during custodial interrogation by FBI agents. Second, Makes Room argues that Judge Jones abused his discretion when he refused to transfer the case to Judge Piersol, who presided over the trial, for sentencing. Third, Makes Room argues that the district court clearly erred in refusing a two level reduction for acceptance of responsibility under Sec. 3E1.1(a). Fourth, Makes Room argues that the district court clearly erred in refusing a one level reduction for acceptance of responsibility under Sec. 3E1.1(b)(1). Finally, Makes Room argues that the district court clearly erred in giving a two level enhancement for his leadership role in the offense under Sec. 3B1.1(c). Having carefully reviewed the record and the applicable law, we affirm on the first four issues. We reverse the enhancement for leadership role and remand for resentencing.

A. The trial court properly admitted statements made during custodial interrogation.

Makes Room does not indicate whether his involuntariness argument is based upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or the Fifth Amendment "proper." ² Because we hold that Makes Room knowingly and voluntarily waived his Miranda rights and his Fifth Amendment rights (by confessing), we need not resolve this ambiguity. We review waivers of both types of rights under the same standard. We accept the district court's factual findings unless they are clearly erroneous. We review the ultimate determination that the accused knowingly and voluntarily waived these rights de novo. United States v. Bordeaux, 980 F.2d 534, 538 (8th Cir.1992) (Fifth Amendment); United States v. Jones, 23 F.3d 1307, 1313 (8th Cir.1994) (Miranda rights).

We consider the totality of the circumstances, including the factors specifically enumerated by statute, in order to answer the ultimate question whether the accused's will was overborne. Bordeaux, 980 F.2d at 538; Jones, 23 F.3d at 1313. We begin by reviewing the statutory factors bearing on the voluntariness evaluation. 18 U.S.C. Sec. 3501(b) provides:

(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.

Applying these factors, we find that less than one full day passed between Makes Room's arrest and his arraignment. Agent Pritchard informed Makes Room of the nature of the charge, and of Agent Pritchard's role as investigator. Makes Room was told that his potential involvement in the victim's death was the subject of the investigation. The fact that Makes Room did not take the situation as seriously as perhaps he should have does not make his waiver or his confession involuntary. See Rachlin v. United States, 723 F.2d 1373, 1378 (8th Cir.1983) (confession of suspect in counterfeiting investigation who cavalierly admitted involvement not involuntary). Makes Room was advised in writing and orally...