U.S. v. Pugh

• Decision Date: 31 May 1994
• Docket Number: No. 93-2745,93-2745
• Citation: 25 F.3d 669
• Parties: UNITED STATES of America, Appellee, v. Atlas Norris PUGH, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 669

25 F.3d 669

UNITED STATES of America, Appellee, v. Atlas Norris PUGH, Jr., Appellant.

No. 93-2745.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 17, 1993.

Decided May 31, 1994.

Daniel O'Brien, Cedar Rapids, IA, argued, for appellant.

Daniel Christopher Tvedt, Cedar Rapids, IA, argued, for appellee.

Before LOKEN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Atlas Norris Pugh, Jr., was convicted by a jury of five drug-trafficking charges. He was sentenced to 168 months of imprisonment. He appeals, arguing that the district court erred by (1) denying his motion to suppress incriminating statements on the ground that law enforcement officers interrogated him after he asserted his right to remain silent, (2) admitting those statements into evidence at trial despite an alleged delay by law enforcement officers in presenting him to a magistrate judge, and (3) finding that he was responsible for 54.2 grams of crack cocaine. We affirm.

I.

On July 24, 1992, Detective Jeff Rayburn received a tip that Pugh would drive from Chicago to Galena, Illinois, the next day with crack cocaine. Detective Rayburn was a member of the Jo Daviess County, Illinois, Sheriff's Department and was assigned to a drug enforcement unit of the Illinois State Police. After receiving the tip, the state police planned to apprehend Pugh so that they could intercept his shipment of drugs and execute an outstanding arrest warrant they had for Pugh. At about 1:30 a.m. on Saturday, July 25, 1992, about two miles east of Galena, Illinois, officers stopped Pugh because he was driving 38 miles per hour in a 30-mile-per-hour zone. Officers arrested Pugh and informed him of his Miranda rights, both orally and in writing. An officer searched Pugh's passenger and found about 4.2 grams of crack cocaine on her person. An officer then obtained her consent to search the car, which she owned, and he found one more rock of crack cocaine.

Pugh was taken to the Jo Daviess County jail. At 4:30 a.m., Detective Rayburn approached Pugh and asked him whether he wanted to cooperate in a drug-trafficking investigation. Pugh said he did not. At noon, Detective Thomas Fessler, a member of the Dubuque, Iowa, Police Department and of a Northern District of Iowa federal drug task force, arrived at the jail. Detective Fessler was accompanied by Thomas Parker, a Dubuque police officer, and was later joined by Detective Rayburn. From November 1991 to July 1992, Detective Fessler had investigated Pugh for drug trafficking in Dubuque (which is about 15 miles west of Galena). During that period, informants had attempted to buy both crack and powder cocaine from Pugh on twelve occasions; they had succeeded on four occasions. So when Detective Fessler arrived at the jail, he asked Pugh whether he wanted to cooperate in Fessler's drug-trafficking investigation. Pugh said he did not. The magistrate judge found that the three officers began to leave but that as they were walking down the hall and away from Pugh, Pugh yelled to them, "F--- it, I might as well get this over with." The three officers returned, and Pugh made statements to them about his drug-trafficking activities in Dubuque.

On August 20, 1992, the government filed an indictment alleging four distribution counts and one conspiracy count. A jury later returned verdicts of guilty on all counts. Pugh appeals from the district court's judgment entered July 8, 1993.

II.

Pugh first argues that the district court should have granted his motion to suppress the statements he made in the Jo Daviess County jail because the officers violated his right to remain silent and his right to counsel. ¹ After conducting an evidentiary hearing, a magistrate judge ² recommended that Pugh's pretrial motion to suppress be denied. A district judge ³ overruled Pugh's objections to the report and recommendation and denied the motion. We review the district court's denial of his motion to suppress for clear error. United States v. McClinton, 982 F.2d 278, 281 (8th Cir.1992).

Once in police custody and subject to interrogation, a person must be informed of his constitutional right to remain silent. Miranda v. Arizona, 384 U.S. 436, 473 [86 S.Ct. 1602, 1627, 16 L.Ed.2d 694] (1966). If the right is asserted, the interrogation must cease. When a suspect invokes the right, however, the police are not entirely prohibited from reinitiating questioning. Michigan v. Mosley, 423 U.S. 96 [96 S.Ct. 321, 46 L.Ed.2d 313] (1975). Nothing "in the Miranda opinion can sensibly be read to create a per se proscription by any police officer on any subject, once the person in custody has indicated a desire to remain silent." Id. at 102-03 . Instead, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.' " Id. at 104 . In Mosley, the Supreme Court relied on three factors to determine whether the police "scrupulously honored" the person's right of silence: "(1) there was an immediate cessation of questioning upon defendant's request; (2) a 'significant amount of time' had passed since the last session and a new set of [Miranda] warnings was given; and (3) the second interrogation involved inquiries concerning a separate crime." United States v. House, 939 F.2d 659, 662 (8th Cir.1991) (citing Mosley).

McClinton, 982 F.2d at 281 (alteration in original).

While Pugh was in custody, he twice asserted his right to remain silent. He changed his mind after the second time, but he argues that officers violated his right to remain silent when they continued to interview him. We disagree. The first Mosley factor is present because each time Pugh asserted his right, law enforcement officers immediately ceased questioning. The second Mosley factor also is present. Officers waited seven-and-one-half hours before approaching Pugh the second time. See Hatley v. Lockhart, 990 F.2d 1070, 1074 (8th Cir.1993) (approving two-hour interval); McClinton, 982 F.2d at 282 (approving seven-hour interval). The officers informed Pugh of his right to appointed counsel at the noon encounter. Although the officers did not give Pugh a complete set of fresh Miranda warnings at the noon encounter, their failure to inform Pugh of his right to remain silent or that any statement could be used against him is immaterial because Pugh actually asserted these rights and the officers respected the assertion by terminating the interview and walking away. A complete set of Miranda warnings would have served Pugh no better. See Stumes v. Solem, 752 F.2d 317, 321 (8th Cir.), cert. denied, 471 U.S. 1067, 105 S.Ct. 2145, 85 L.Ed.2d 502 (1985). Likewise, the third Mosley factor is present because the topics of the two proposed interviews were different. Detective Rayburn first asked Pugh about drug-trafficking in Illinois, while Detective Fessler later asked Pugh about drug-trafficking in Dubuque, Iowa. See McClinton, 982 F.2d at 282 (holding that third factor is present where two interviews are conducted by officers from different jurisdictions); cf. Hatley, 990 F.2d at 1074 (holding that "a second interrogation is not rendered unconstitutional simply because it involves the same subject matter discussed during the first interview"). Thus, the magistrate judge did not err by finding that law enforcement officers "scrupulously honored" Pugh's assertions of his right to remain silent.

The magistrate judge further found that law enforcement officers did not " 'wear down [Pugh's] resistance' in order to change [his] version of the facts." McClinton, 982 F.2d at 282 (quoting Mosley, 423 U.S. at 105-06, 96 S.Ct. at 327). We agree. Pugh was not denied his right to remain silent when he made statements about his drug-trafficking activities. In sum, the district court did not err when it denied Pugh's pretrial motion to suppress because of an alleged violation of his right to remain silent.

III.

Pugh next argues that his incriminating statements should have been suppressed because the government failed to timely present him to a federal magistrate judge for an initial appearance. The government responds that Pugh did not preserve this issue for appeal. We note that Pugh did not raise the issue in his motion to suppress, in his memorandum in support of his motion to suppress, or in his objections to the magistrate judge's report and recommendation. At the beginning of the suppression hearing, Pugh's counsel merely stated, "I don't know if this is an issue." (Suppression Tr. at 4.) Pugh's counsel later asked witnesses questions that are somewhat relevant to this issue, but counsel never asked for a ruling. Because counsel's tentative statement is insufficient to properly present the issue to the district court, we review for plain error. See Fed.R.Crim.P. 52(b); United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508 (1993); United States v. Montanye, 996 F.2d 190, 192 (8th Cir.1993) (en banc).

Pugh's primary contention is based on Fed.R.Crim.P. 5(a), which states that arresting officers "shall take the arrested person without unnecessary delay before the nearest available federal magistrate," and on a statute that provides, in part:

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 custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to...