U.S. v. Marks
| Decision Date | 25 January 2000 |
| Docket Number | 98-6216,V,DEFENDANTS-APPELLANTS,98-6048,PLAINTIFF-APPELLE,Nos. 98-6044,s. 98-6044 |
| Citation | 209 F.3d 577 |
| Parties | (6th Cir. 2000) UNITED STATES OF AMERICA,JAMES D. MARKS (98-6044), MAURICE NAVARRO BROOKS (98-6048), ROBERT LEE AGUON (98-6216), Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 97-00024--Thomas B. Russell, District Judge. [Copyrighted Material Omitted] Terry M. Cushing (argued and briefed), David J. Hale (briefed), Assistant United States Attorneys, Louisville, Kentucky, for Plaintiff-Appellee.
Armand I. Judah (argued and briefed), Louisville, Kentucky, for Defendant-Appellant Marks.
Michael L. Boylan (argued and briefed), Louisville, Kentucky, for Defendant-Appellant Brooks.
Robert Lee Aguon, Frankfort, Kentucky, pro se, Vincent F. Heuser, Jr., (argued and briefed), Louisville, Kentucky, for Defendant-Appellant Aguon.
Before: Nelson, Suhrheinrich, and Gilman, Circuit Judges.
Defendants Maurice Navarro Brooks, James Marks, and Robert L. Aguon appeal their jury convictions and sentences on multiple counts of bank robbery, armed bank robbery, and carrying a firearm during a crime of violence. Defendants raise seven issues.
Brooks committed nine armed bank robberies in and around Louisville, Kentucky, from July through December 1996. Nine people were charged with either participating directly in the robberies or with assisting the principals at different times. Marks allegedly participated in seven of the robberies but was convicted of only six. Aguon participated in the last two robberies.
Brooks, Marks, Aguon, and Bernard Williams committed the ninth robbery on December 20, 1996. As they were leaving the bank, a Louisville police officer drove into the bank parking lot. The four robbers split into pairs. Brooks and Williams fled in Williams' car but were arrested after a high speed chase. Immediately after Brooks' arrest, he asked a police officer how much time he would get and commented that the officer did a "good job."
Meanwhile, Marks and Aguon entered a nearby flower shop where Marks called his stepmother for a ride and bought her a stuffed animal. She picked them up at the florist and drove them to her home. Later, an employee of the florist also found a bag of money on the premises. A few days after the robbery, the flower shop employees identified Marks and Aguon from standard photographic lineups. However, one employee could not identify Aguon.
After leaving the Marks' home, Marks and Aguon traveled to Oklahoma where they stayed with William Hayes. Hayes later testified that Marks and Aguon said that they robbed a bank.
Marks and Aguon were apprehended and arraigned on March 19, 1997. Brooks was arraigned on March 26, 1997. The court scheduled trial for all three defendants for May 19, 1997. Before trial, Defendants filed several motions. Aguon moved for discovery, to suppress photographic identification, to sever, and to enlarge time to file additional motions. Marks also moved for discovery and to sever both defendants and offenses. The district court judge denied the motions to suppress, sever, and for discovery.
After Brooks' original counsel withdrew on April 23, 1997, Brooks' new attorney moved to continue the trial, which the district court rescheduled to August 18, 1997. The district court also made Speedy Trial Act findings. On July 16, 1997, the case was reassigned to another district judge. Brooks then moved to sever, to suppress evidence, and to exclude two of his prior statements. Aguon also moved to exclude his statements when he was arrested and to suppress the photographic lineup identification. The district court denied all these motions.
On August 18, 1997, the morning of trial, Marks, Brooks, and Aguon agreed to plead guilty to all counts and to cooperate completely and fully in the ongoing investigation of the nine bank robberies. The plea agreements were for specific sentences under Federal Rule of Criminal Procedure 11(e)(1)(C). If Defendants failed to cooperate fully, the Government could move for relief from the agreement. The district court accepted the pleas and set sentencing for each Defendant for November 7, 1997.
On October 22, 1997, the Government moved to continue the sentencing because Defendants had not completed their cooperation under the plea agreements. Marks objected to the continuance. Defendants Brooks and Marks responded that they were dissatisfied with their plea agreements and moved to withdraw their guilty pleas. After the district court advised Brooks and Marks of their possible sentences, they reconsidered and maintained their guilty pleas. The district court reset Defendants' sentencing to February 2, 1998.
In early December, 1997, Co-defendant James Myles, previously a fugitive, was arrested. His trial was set for March 26, 1998. The Government again moved to continue Defendants' sentencing because Marks and Brooks would both testify against Myles. The district court reset the sentencing of Brooks, Marks, and Aguon to April 3, 1998.
On February 27, 1998, Brooks, Marks, and Aguon jointly moved pro se to set aside their plea agreements. They claimed that the Government threatened their family and friends with prosecution if Defendants did not accept the plea bargains and that their defense counsel constantly pressured them to accept the plea agreements. On March 17, 1998, the court heard Defendants' motion and received testimony. The court rejected their claims of coercion, finding their proffered testimony not credible. The court also denied Defendants' motions for new counsel. At the hearing, the Government also stated that it would offer Defendants' incriminating post-plea statements made while they were cooperating with the Government. The district court allowed Defendants to withdraw their pleas, made Speedy Trial Act findings, and set trial for May 18, 1998.
Before trial, Brooks, Marks, and Aguon renewed several motions and also moved to suppress their incriminating post-plea statements. The Government moved to admit the statements, which the district court granted. The court concluded that the exclusionary provision for statements made during plea discussions did not apply to post-plea statements and that Defendants' post-plea statements were otherwise voluntary and, therefore, admissible.
The court also found joinder of Brooks, Marks, Aguon and Myles proper under Federal Rule of Criminal Procedure 8. The district court denied Brooks' motion to suppress his post-arrest statement, "How much time am I going to get for this?" because Brooks did not show that the statement was involuntary. The district court denied Aguon's motion to suppress a photographic identification of him by an employee of the flower shop. Finally, the district court denied Marks's, Brooks's, and Aguon's objections to the Government's intention to introduce evidence of prior bad acts.
On May 19, 1998, the morning of trial, the court reconsidered severance and severed the trial of Aguon and Myles from the trial of Brooks and Marks, with appropriate Speedy Trial Act findings. Brooks and Marks were tried beginning May 19, 1998, and convicted on May 29, 1998. Marks was sentenced to 1875 months, and Brooks was sentenced to 2722 months. The court later corrected their sentences under United States v. Sims, 975 F.2d 1225 (6th Cir. 1992), and reduced them by 480 months to 1395 months and 2242 months respectively.
On July 6, 1998, the morning of trial, Aguon moved to suppress the testimony of witnesses who testified pursuant to plea agreements, which the court denied. Aguon also moved to suppress his post-plea statements to the FBI claiming that they were not voluntary. After taking testimony, the court denied the motion. The jury convicted Aguon on all counts. The district court sentenced Aguon to 438 months.
Defendants contend that their post-plea statements should have been excluded. This Court reviews factual findings about a confession for clear error, but reviews the ultimate question of voluntariness de novo. See United States v. Wrice, 954 F.2d 406, 410-11 (6th Cir. 1992).
Federal Rule of Criminal Procedure 11(e)(6) treats the inadmissibility of pleas, plea discussions, and related statements:
Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(A) a plea of guilty which was later withdrawn;
(B) a plea of nolo contendere;
(C) any statement made in the course of any proceedings under this rule regarding either of the foregoing pleas; or
(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. Fed. R. Crim. P. 11(e)(6).
After Defendants entered their plea agreements, FBI Special Agent Wight spoke to the Defendants with their defense counsel either present or informed of the interview. The court cautioned Defendants about the possible admission of their post-plea statements when they moved to withdraw their pleas.
In this case, the district court found that (1) Defendants' admissions, which the Government wanted to admit, were made after Defendants' plea agreements had been finalized and entered, and (2) the plea negotiations did not extend beyond their signing and filing. The court concluded that Federal Rule of Criminal Procedure 11(e)(6) did not apply because the statements were not made during the plea discussions.
Defendants rely on United States v. Brooks, 536 F.2d 1137 (6th Cir. 1976), and United States v. Herman, 544 F.2d 791 (5th Cir. 1977), for the proposition that...
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