U.S. v. Peters, 04-3913.
| Decision Date | 27 January 2006 |
| Docket Number | No. 04-3913.,04-3913. |
| Citation | 435 F.3d 746 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lawrence P. PETERS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Michelle L. Jacobs, Timothy W. Funnell (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Gary L. Starkman, David T. Meehan (argued), Chicago, IL, for Defendant-Appellant.
Before CUDAHY, KANNE, and ROVNER, Circuit Judges.
Again we find ourselves in the midst of the fallout from Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but this time there is a twist: rather than appealing his sentence, Lawrence Peters seeks to overturn his conviction. Post-Blakely and pre-Booker, it was less than clear whether it was necessary or proper to incorporate into indictments and jury instructions the United States Sentencing Guidelines ("the Guidelines"). During this time period, Peters was indicted, tried, and convicted. Peters appeals, claiming that it was plain error for the superceding indictment and jury instructions to include sentencing matters. Additionally, Peters claims he was deprived of his right to counsel when a federal agent continued a custodial interrogation after Peters claims to have invoked his right to remain silent. For the following reasons, we find that his motion to suppress was properly denied and we affirm Peters's conviction.
In the early morning of December 21, 2003, the Hillstop Convenience Store on the Menominee Indian Reservation in Keshena, Wisconsin, was robbed by a man wearing a ski mask and armed with a section of PVC pipe. A Hillstop employee was preparing for business and had just opened the store's safe when the robber approached the employee, threatened him with the pipe, and said, "Don't move." The robber removed bags containing cash, coins, and checks from the safe. With the bags in hand, the robber pulled telephone wire from the store's wall and locked the employee in the office. A short time later, the employee forced his way out of the office and called the police.
The investigation led police to suspect Peters, but he was nowhere to be found. Several days later, on January 7, 2004, FBI Special Agent Gerald Mullen received a tip that Peters was at home. Mullen relayed the tip to tribal police and made his way to the tribal police department from Green Bay. Pursuant to a federal arrest warrant, Peters was taken into custody at his home by tribal police, including Tribal Investigator Edward (Doug) Snow. Upon his arrest, Peters was transported to the Menominee tribal police station and booked into the tribal jail. After booking, Snow presented him with an Advice of Rights form, which contained Miranda warnings. Peters signed the waiver of rights form.
Peters was then taken to an office for questioning by Mullen and Snow. Once in the office, Mullen explained the nature of federal jurisdiction to Peters and read through the Advice of Rights form one more time. Mullen also explained that Peters would be going to Green Bay for pretrial services to determine whether Peters was financially eligible to have an attorney appointed for him. Mullen then began to discuss the investigation and to interrogate Peters.
Initially Peters denied any involvement with the Hill-stop robbery. Mullen continued interrogating Peters, informing him of the evidence the FBI had against him. Peters referred to the earlier conversation about meeting with pretrial services in Green Bay and added, "I think I would like to get to that now," or words to that effect.1 Mullen then confronted Peters with a statement from Peters's daughter at which point Peters confessed to the robbery. Mullen subsequently prepared a written statement in which Peters admitted to committing the Hill-stop robbery and detailed Peters's activities following the offense. Without asking to see a lawyer, Peters reviewed and signed the confession.
On January 13, 2004, Peters was indicted on one count of willfully taking money from the presence of another by intimidation within the boundaries of an Indian reservation, in violation of 18 U.S.C. § 1153(a) and 18 U.S.C. § 2111. On February 4, 2004, Peters moved to suppress the confession on the ground that he signed it after the agents refused his request for counsel. The matter was referred to Magistrate Judge Aaron Goodstein for an evidentiary hearing, during which Peters admitted he had been arrested many times and that in some of those instances he had invoked his right to counsel to stop interrogations. Basing his decision on Peters's past experiences and the two readings of the Advice of Rights form, the magistrate judge concluded that Peters understood his rights and could have stopped the interrogation as he had done before. The magistrate judge recommended Peters's suppression motion be denied. On March 19, 2004, the district court accepted the magistrate judge's findings of fact and conclusions of law, and denied Peters's motion to suppress. A jury trial was subsequently set for May 4, 2004.
At the request of Peters's counsel, the district court ordered Peters to undergo a competency examination. Peters was found competent to stand trial, but his counsel withdrew, which delayed the trial until August 4, 2004, to afford Peters's successor counsel an opportunity to prepare.
In the interim, Blakely and our United States v. Booker, 375 F.3d 508 (7th Cir. 2004), were decided. As a result, the government sought a superceding indictment and it was returned by the grand jury on July 27, 2004. In the superceding indictment, the robbery charge remained essentially the same, but three sentencing allegations were added. The relevant portion of the superceding indictment read as follows:
Offense Allegations
COUNT ONE
Robbery
THE GRAND JURY CHARGES:
COUNT ONE
a Native American Indian and the defendant herein, within the territorial jurisdiction of the United States, willfully took money from the presence of another by intimidation, specifically, the defendant stole in excess of $30,000 in cash and checks from the Hillstop convenience store after threatening the clerk with a section of PVC pipe and locking the clerk in an office.
All in violation of Title 18, United States Code, Sections 1153(a) and 2111. [on the next page] Sentencing Allegations 1. With respect to Count One of the indictment:
a. The defendant committed the offense while brandishing a dangerous weapon. See U.S.S.G. § 2B3.1(b)(2)(E).
b. The defendant physically restrained a person to facilitate escape. See U.S.S.G. § 2B3.1(b)(4)(B).
c. The defendant took property valued at more than $10,000.00. See U.S.S.G. § 2B3.1(b)(7)(B).
The district court read part of the superceding indictment to prospective jurors during voir dire. However, after a verbatim reading of the allegation involving the violation of 18 U.S.C. §§ 1153(a) and 2111, the district court— without mentioning sentencing—stated that there are Before and after reading the indictment, the district court admonished the prospective jurors that the indictment itself was not evidence and could not be used to infer guilt.
After a two-day trial, the district court instructed the jury as to the robbery charge, and submitted a special verdict form for each of the sentencing allegations. The court cautioned that the questions in the special verdict forms should only be considered if the jury found Peters guilty of robbery. After posing the questions, the special interrogatories concluded:
In order to answer any of these questions "yes," the government must prove beyond a reasonable doubt that the answer to the question should be "yes". If the evidence does not convince you beyond a reasonable doubt that the answer should be "yes", you must answer the question "no."
Peters did not object. The jury found Peters guilty of robbery and answered "yes" to the special interrogatories. Despite failing to object on either issue, Peters moved for a new trial, unsuccessfully, arguing that the sentencing allegations and special verdict questions unfairly prejudiced him.
At sentencing, following our decision in Booker, the district court concluded the Guidelines were advisory and sentenced Peters to 72 months' imprisonment followed by 3 years of supervised release and ordered restitution in the amount of $18,787.29. Alternatively, the district court imposed a mandatory sentence of 110 month imprisonment pursuant to the Guidelines. The Supreme Court subsequently affirmed Booker, 125 S.Ct. at 746, which nullified the 110-month sentence mandated by the Guidelines.
On appeal, Peters seeks to overturn his conviction and obtain a new trial for two reasons: first, the district court should have granted his motion to suppress his confession because he had invoked his right to an attorney; and second, the sentencing allegations in the indictment and jury instructions constituted plain error.
Peters appeals the district court's denial of his motion to suppress his confession, claiming he unambiguously invoked his right to counsel when he said, "I'd like to get to that part now." "In reviewing the district court's decision on a motion to suppress, we review questions of law de novo and questions of fact for...
To continue reading
Request your trial
-
U.S. v. Straker
...nor were comments such as "maybe [I] ought to see an attorney" or "I think I would like to talk to a lawyer"); United States v. Peters, 435 F.3d 746, 751-52 (7th Cir.2006) (observing that circuits have held that a statement such as "I might want to talk to an attorney" or "[d]o you think I ......
-
United States v. Maez
...the jury’s verdict.’ "), quoting United States v. Lane , 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) ; United States v. Peters , 435 F.3d 746, 754 (7th Cir. 2006) (reviewing jury instructions for plain error "in light of the facts of the case and the evidence presented"). But th......
-
U.S. v. Marzook
...that a defendant in a custodial interrogation has the right to an attorney when he unambiguously requests one. United States v. Peters, 435 F.3d 746, 751 (7th Cir.2006) (citing Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981); Davis v. United States, 512 U.......
-
U.S. v. Noel
...479 F.3d 485, 491 (7th Cir.2007), a standard that is particularly limited in the context of jury instructions, United States v. Peters, 435 F.3d 746, 754 (7th Cir.2006). To warrant reversal, "`[t]he error [must] be of such a great magnitude that it probably changed the outcome of the trial.......