U.S. v. Scurlock
| Decision Date | 08 May 1995 |
| Docket Number | No. 94-60178,94-60178 |
| Citation | 52 F.3d 531 |
| Parties | 42 Fed. R. Evid. Serv. 132 UNITED STATES of America, Plaintiff-Appellee, v. Mary SCURLOCK, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth H. Coghlan (Court-appointed), Oxford, MS, for appellant.
Paul D. Roberts, Asst. U.S. Atty., Alfred Moreton, U.S. Atty., Oxford, MS, for appellee.
Appeal from the United States District Court for the Northern District of Mississippi.
Before WISDOM, JONES and EMILIO M. GARZA, Circuit Judges.
Mary Scurlock, the defendant/appellant, was convicted by a jury on two counts of mail fraud and acquitted of a charge of conspiracy to commit mail fraud by participating in a scheme to commit money order fraud. Her conviction is the result of her involvement in an altered money order scheme organized by an inmate at Parchman Penitentiary, Mississippi, where Scurlock was employed as a guard. Scurlock seeks review of the denial of her motion to suppress a confession, the admission of documents she contends were not properly authenticated, and her sentence. We AFFIRM her conviction but VACATE her sentence and REMAND for resentencing.
In April of 1993, a grand jury for the Northern District of Mississippi indicted Mary Scurlock and other defendants of conspiracy to commit mail fraud by participating in a scheme to commit money order fraud. Scurlock was also charged with two substantive counts of mail fraud. Scurlock, employed as a prison guard at Parchman Penitentiary, was accused of assisting an inmate, Porter Shorter, in his money order scheme. Shorter would contact his victims through personal advertisements in "lonely hearts type magazines" 1 and try to gain their trust with the promise of a relationship. Then, Shorter would send his victims altered money orders, with an apparent value of $700 but a true value of only $1. The victims would deposit the money orders, return the funds to Shorter, and become liable for the difference between the apparent value of the money orders and their true value. Scurlock allegedly became involved in the plan in 1992 when Shorter became nervous about his wife smuggling the illegal proceeds to him at the prison. According to evidence presented by the government, Scurlock received two Express Mail packages at her personal post office box sent by Shorter's wife. The packages contained approximately $1,200 of illegal profits which Scurlock delivered to Shorter. Scurlock allegedly received $25 to $30 per package for her services.
During the investigation of this scheme, two U.S. Postal Inspectors, Agent Cooper and Agent McCarran, interrogated Scurlock about her involvement. During a work day, Scurlock was asked to meet investigators at the prison's Internal Affairs Office. The defendant arrived at the office in her own vehicle at about 3:50 p.m. At that meeting, the Postal Inspectors had in their possession evidence that Scurlock had received and signed for two packages mailed by Shorter's wife. After Scurlock initially denied any involvement, the investigators told her they believed she was involved and read the defendant her Miranda warnings. Scurlock signed a "Warning and Waiver of Rights" at 4:06 p.m. 2
The investigators continued their interrogation, and Scurlock admitted that she had received packages on behalf of Shorter containing cash which she delivered to Shorter at the prison. The investigators prepared a summary of Scurlock's statement but also had Scurlock repeat her basic confession on tape. According to Scurlock, before her statement was recorded she invoked her right to counsel when, while waiting for Agent McCarran to retrieve the tape recorder, she told Agent Cooper that she needed a lawyer. 3
According to the testimony of the investigators, at the end of the interview, Scurlock asked what would happen to her. The investigators replied by citing the case of another guard convicted on similar charges who received only six months in prison. The investigators contrasted that case with the case of another guard who did not cooperate and was expected to receive a longer sentence. According to Scurlock, this exchange occurred before she admitted involvement in the scheme and the investigators' comments regarding a six month sentence represented an implied promise which rendered her subsequent confession involuntary.
Before trial, the defendant made a motion to suppress her statements to the investigators alleging that the confession was involuntary and that the recorded statement was obtained after she had invoked her right to counsel in violation of Miranda. The trial court denied this motion. After a one week trial, the jury found Scurlock not guilty on the count of conspiracy but guilty on the two counts of mail fraud. The defendant was sentenced to 24 months in prison. The sentence was based on a determined loss of value of $10,186 and increases for more than minimal planning, abuse of a position of trust, and a finding that the victims were vulnerable. The defendant now appeals both the conviction and sentence.
The defendant argues that her incriminating statements to the Postal Inspectors investigating the scheme were involuntary because of the agents' comments to her regarding the sentence she could expect to receive. Specifically, Scurlock alleges that the agents made an implied promise of a six month sentence if she confessed and threatened her with a longer sentence if she refused to cooperate. The government, in response, argues that the discussion regarding sentences occurred after Scurlock's statements and could not, therefore, have had any impact on her decision to cooperate. Even assuming the chronology of events occurred as the defendant testified, the government argues that the agents simply responded to Scurlock's questions by citing examples of sentences that other similarly situated guards had received but that no promises or threats were made.
The trial court held a hearing on the defendant's motion to suppress at which both Postal Inspectors and the defendant testified regarding the interrogation at the Internal Affairs Office. The trial court concluded in its factual findings that the exchange regarding the sentence Scurlock could expect took place after the interrogation was completed. Further, the trial court determined that the agents discussed the possible sentence but "carefully avoided any promises of leniency to Ms. Scurlock". 4 On appeal, we must accept the findings of fact of the trial court unless we find that they are clearly erroneous. 5 The ultimate question of voluntariness is a legal question which we review de novo. 6
A confession is voluntary if, "under the totality of the circumstances, the statement is the product of the accused's free and rational choice". 7 To be considered voluntary, a confession cannot be the product of "official overreaching, in the form either of direct coercion or subtle forms of psychological persuasion". 8 The government carries the initial burden of showing by a preponderance of the evidence that the defendant waived her rights and that the statements she made were voluntary. 9
In this case, after hearing the testimony of Scurlock and the two investigators, the trial court determined that the conversation between Scurlock and the investigators regarding an expected sentence occurred after Scurlock admitted involvement in the mail order scheme. Thus, any implied promise could not have affected Scurlock's decision to cooperate. We find that the district court's decision to credit the testimony of the government witnesses over the defendant was not clearly erroneous. Further, even if the order of events were reversed, "a truthful and noncoercive statement of the possible penalties which an accused faces may be given to the accused without overbearing one's free will". 10 This Court concludes that the district court did not err in finding that Scurlock's confession was voluntary.
Scurlock also challenges the admissibility of the taped version of her statement because she alleges that before that recording was made, she invoked her right to counsel and questioning should have stopped. The full exchange, according to Scurlock's testimony at the suppression hearing, was that Agent Cooper told her that she would be indicted for her participation in the scheme. Scurlock's response was that she needed a lawyer. Agent Cooper then gave Scurlock the district attorney's business card and suggested that once Scurlock employed a lawyer, he or she should contact the district attorney listed on the card. Her recorded confession was taped after this exchange. The government responds by arguing that Scurlock was not in custody at the time of the interview and that she did not invoke her right to counsel at any time.
Scurlock is correct when she asserts that if, after waiving the right to counsel, an accused invokes the right to have counsel present during further questioning, all questioning must cease. 11 The Supreme Court has recently held, however, that the right to counsel must be clearly invoked by the accused. 12 That is, if a suspect who is the subject of questioning makes an ambiguous comment from which a reasonable police officer "would have understood only that the suspect might be invoking the right to counsel, our precedents do not require cessation of questioning". 13 Further, the investigator conducting the questioning has no obligation to attempt to clarify the ambiguous comment of the accused. 14 Thus, "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney". 15
In this case, the defendant signed a waiver which detailed her ability to invoke her right to counsel at any time and end the questioning. The comment Scurlock made regarding an attorney was after she admitted involvement in the scheme and after she...
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