U.S. v. Ricks

• Decision Date: 20 May 1987
• Docket Number: No. 86-8569,86-8569
• Citation: 817 F.2d 692
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kevin Anthony RICKS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 692

817 F.2d 692

UNITED STATES of America, Plaintiff-Appellee, v. Kevin Anthony RICKS, Defendant-Appellant.

No. 86-8569.

United States Court of Appeals, Eleventh Circuit.

May 20, 1987.

Stanley M. Baum, Atlanta, Ga., (court-appointed), for defendant-appellant.

Robert L. Parr, Jr., U.S. Atty., Thomas D. Bever, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

HATCHETT, Circuit Judge:

In this criminal appeal, we fix the standard for dismissal of an indictment for prosecutorial misconduct before a grand jury to be a showing that the prosecutor's activities caused "unfairness or actual prejudice." Finding no error in the district court's rulings, we affirm.

FACTS

On November 18, 1985, two armed men robbed the Decatur Federal Savings & Loan Association at Decatur, Georgia. One man positioned himself near the entrance to the savings and loan and held a large automatic hand gun; the other man, armed with a pistol, vaulted the tellers' counter and took approximately $17,000 from the cash drawers. The two men left the bank together. Two bank tellers later identified the appellant, Kevin Ricks, as the man who stood by the door holding the automatic hand gun. From a six-person photo spread, a third teller identified Ricks as one of the robbers.

On December 15, 1985, Federal Bureau of Investigation (FBI) agents arrested Ricks in Atlanta, at A.C. Boldin's apartment. While searching Ricks's person, the FBI agents found a locker key. After receiving Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), warnings, Ricks told the FBI agents that the key belonged to a bus station locker. Ricks's statement was untrue; instead, the FBI agents found that the locker key fit a locker at the Atlanta Amtrak Train Station. After receiving a search warrant, the agents searched the locker and found a large automatic 9 millimeter hand gun. Also during Ricks's arrest, FBI agents asked Ricks whether he wanted to take with him a jacket that was hanging in a closet. Upon receiving an affirmative response, the FBI agents searched the jacket and found pieces of paper with the names, telephone numbers, and addresses of Larry Massey and A.C. Boldin.

PROCEDURAL HISTORY

On January 9, 1986, Kevin Ricks and Larry Massey were indicted by a federal grand jury in the United States District Court for the Northern District of Georgia. The indictment charged one count of aiding and abetting in the robbery of the Decatur Federal Savings and Loan Association, using dangerous weapons and devices, in violation On February 6, 1986, the same grand jury returned a superseding indictment charging Ricks and Massey with the violations charged in the first indictment, but added a second count, charging them with knowingly and willfully using and carrying firearms during the bank robbery, in violation of 18 U.S.C. Sec. 924(c).

of 18 U.S.C. Secs. 2113(a), 2113(d), and 2.

The grand jury also indicted A.C. Boldin for receiving the proceeds of the robbery. Boldin, however, was never prosecuted; Boldin provided the information which led to the arrest of Ricks and Massey and he received immunity in return for this information.

A jury convicted Ricks on both counts. The district court sentenced him to a term of twenty-five years on Count I (bank robbery using a dangerous weapon) and to a term of five years, to run consecutively, on Count II (using and carrying firearms in committing the robbery).

ISSUES AND CONTENTIONS

Ricks raises seven issues on appeal: Whether the district court erred (1) by denying his motion to dismiss the indictment; (2) by denying his motion to suppress the items found in his jacket; (3) by denying his motion to suppress the evidence found at the Amtrak Train Station locker; (4) in its finding that Ricks's Miranda rights were not violated; (5) by failing to find that the photo spread tainted a subsequent in-court identification; (6) in not directing the government to provide Ricks with all Jencks Act material; and (7) by imposing a sentence constituting double jeopardy in violation of the Fifth Amendment by sentencing him to two consecutive terms of imprisonment for the two counts of which he was convicted.

DISCUSSION

A. Motion to Dismiss

Ricks contends that the district court erred by denying his Motion to Dismiss because the prosecutor presented improper information regarding prior convictions to the grand jury. One of the grand jurors asked whether Ricks or Massey had prior convictions. An FBI agent stated that he "knew about one of them," referring to either Ricks or Massey. An Assistant United States Attorney immediately interrupted that colloquy and "stopped the flow of information" before any members of the grand jury were made aware of any actual data on Ricks or Massey. Ricks claims, however, that even though no actual data was communicated to the grand jurors, the damage had already been done by the juror's inquiry and the FBI agent's response. Ricks argues that the Assistant U.S. Attorney then compounded the problem by telling the grand jurors that information on prior convictions is not relevant, "especially since this is a superseding indictment." This comment, Ricks argues, implies that the level of evidence required for indictment was somehow diminished because a previous indictment had been returned.

The decision on a motion to dismiss a grand jury indictment is generally one which falls within the district court's broad field of discretionary powers. United States v. Pabian, 704 F.2d 1533 (11th Cir.1983). This circuit has not established a standard for determining when an indictment should be dismissed because of prosecutorial misconduct before a grand jury. The Fifth Circuit requires a defendant to show "unfair or actual prejudice." United States v. Fulmer, 722 F.2d 1192 (5th Cir.1983). We think the Fifth Circuit's standard is adequate to protect the rights of the accused and also adequate to discourage prosecutorial misconduct. We adopt the "unfair or actual prejudice" standard for the Eleventh Circuit.

The government contends that Ricks has not shown any prejudice in this case. We agree. For Ricks to show that he has been unfairly or actually prejudiced, he must show that the indictment was returned due to the grand jury's assumption that Ricks had a prior criminal record. The trial jury convicted Ricks, without disclosure of any prior criminal record. This conviction, which required that the trial jurors be convinced "beyond a reasonable doubt," makes it highly improbable that the grand jury indictment was based on insufficient probable cause. Furthermore, no improper information was ever communicated to the grand jurors about Ricks. The exchange between the juror and the FBI agent did not cause unfair or actual prejudice. Thus, we find no error in the district court's denial of Ricks's motion to dismiss the grand jury indictment.

B. Motion to Suppress Items Found In Jacket

Ricks contends that the district court erred by denying his motion to suppress because the jacket was not subject to a legitimate search incident to his arrest. He claims that upon being arrested, the FBI agents conducted a security sweep of the entire apartment to determine that no other persons or weapons were present. In searching the apartment, an agent opened a closet where Ricks's jacket was hanging. The agent asked Ricks if he wanted to take the jacket with him. Ricks, not knowing that an affirmative answer would be construed as a consent to search the jacket's pockets, replied in the affirmative. Ricks claims that he never would have requested the jacket if he had known that by doing so he authorized the FBI agents to search its pockets. He argues that it was obvious that no weapons were in the jacket and that a detailed examination of his private and personal belongings was not required for security purposes.

The district court found that the search of Ricks's jacket, leading to the discovery of his wallet, was reasonable because he had no legitimate expectation of privacy, because the search was conducted incident to his arrest, and because the papers listing the names of Massey and Boldin, were discovered during a proper inventory procedure at the FBI office. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). When an arrest is made, the danger always exists that the arrestee will reach for a weapon or attempt to destroy evidence. In Chimel, the Supreme Court held that for personal safety and to prevent the loss of evidence, an arresting officer may conduct a prompt warrantless search of the arrestee and of his "grab area." The grab area has been construed to mean "the area from within which [the defendant] might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694 (1969). In this case, the jacket, while not initially in Ricks's grab area, became subject to a legitimate search when the agent handed it to Ricks, thus placing it within Ricks's grab area. Therefore, we affirm the district court's denial of Ricks's motion to suppress the items seized from his jacket.

C. Motion to Suppress Evidence Seized From the Amtrak Train Station Locker

Ricks contends that the district court erred by denying his motion to suppress because insufficient probable cause existed upon which to base the search warrant for the locker. A.C. Boldin supplied the information which led to a determination of probable cause. Ricks claims that Boldin is unreliable and not worthy of belief.

The government argues that Ricks had the burden of showing by a preponderance of the evidence that the affidavit contained false statements, that the affiant made the statements knowing...