U.S. v. Shea, 97-1069

• Decision Date: 07 April 1998
• Docket Number: No. 97-1069,97-1069
• Citation: 150 F.3d 44
• Parties: UNITED STATES, Appellee, v. Anthony M. SHEA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 44

150 F.3d 44

UNITED STATES, Appellee, v. Anthony M. SHEA, Defendant, Appellant.

No. 97-1069.

United States Court of Appeals, First Circuit.

Heard April 7, 1998.

Decided July 24, 1998.

David H. Mirsky, by appointment of the Court, for appellant.

Ben T. Clements, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief for appellee.

Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and BOUDIN, Circuit Judge.

TORRUELLA, Chief Judge.

Defendant Anthony M. Shea appeals his four-count conviction stemming from an attempted bank robbery involving two other co-defendants, John Schurko and Nicolas DiMartino. Schurko had pled guilty prior to trial, and Shea and DiMartino were tried together and convicted on all counts before a jury. Shea was sentenced to 382 months of imprisonment.

Shea challenges the district court's denial of his motion to suppress several statements he made after his arrest and of his motion for discovery of any rewards provided to FBI agents who were assigned to investigate him. He also claims that the district court erred in its jury instructions regarding 18 U.S.C. § 924(c), which prohibits the use and carrying of firearms during a crime of violence, and contests the sufficiency of the indictment for the § 924(c) count. Finally, the defendant argues that the government is precluded from asserting that he used and carried a certain semiautomatic weapon which the government had previously attributed to his co-defendant Schurko. We affirm.

I. BACKGROUND

On an appeal from a criminal conviction, we summarize the facts in the light most favorable to the jury's verdict. See United States v. Gonzalez-Maldonado, 115 F.3d 9, 12 (1st Cir.1997).

On August 11, 1995, after several days of planning, Shea, Schurko, and DiMartino attempted to rob the Wakefield Savings Bank in Wakefield, Massachusetts. Their preparations included an initial stakeout of the bank, the theft of the robbery and switch cars, and a dry run of the getaway route from the bank. At about 4:15 p.m. on August 11, Shea, wearing a Halloween mask and driving a Jeep Cherokee, with Schurko in the backseat, approached the bank. When the Cherokee was about 60 to 65 yards from the bank, several cars containing FBI agents confronted Shea, who then attempted to flee. However, Shea's car was forced into a telephone pole.

Agents removed Shea, who was carrying a police scanner and was armed with a fully-loaded Smith & Wesson revolver tucked in his pants, from the driver's seat and Schurko from the rear passenger seat of the Cherokee. In the rear seat, agents recovered a Halloween mask, an Intratec 9-millimeter semiautomatic assault weapon, which was loaded with 42 rounds of ammunition including one round in the chamber, and a magazine full of ammunition to which an additional clip full of ammunition had been attached. DiMartino, who had remained waiting in Shea's Ford Bronco at a parking area about a half mile away from the savings bank, was also apprehended by FBI agents.

Shea was charged in a three-defendant, four-count indictment with conspiracy to commit armed bank robbery under 18 U.S.C. § 371 ("Count One"); attempted bank robbery under 18 U.S.C. §§ 2113(a) & 2 ("Count Two"); use and carrying of firearms during and in relation to a crime of violence, here, attempted bank robbery, under 18 U.S.C. §§ 924(c)(1) & 2 ("Count Three"); and felon in possession of ammunition under 18 U.S.C. § 922(g)(1) ("Count Four"). While Schurko pled guilty prior to trial, Shea and DiMartino were tried together before a jury. The jury found Shea guilty of all counts, and he was sentenced to a total of 382 months of imprisonment.

II. DISCUSSION

A. Post-Arrest Statements

Shea contests the district court's denial of his pretrial motion requesting that the court suppress the following post-arrest utterances of Shea, which were later admitted at trial:

"How did you know I was here?"

"Where did you come from?"

"I should have gone home."

"What do you got me for, a stolen jeep?"

"What am I going to get for bank robbery, forty years? I'll be out when I'm seventy."

The basis for the suppression motion was that these statements were made while Shea was in custody but prior to his being advised of his Miranda rights. We review de novo the district court's application of Miranda jurisprudence to the challenged statements. See United States v. Ventura, 85 F.3d 708, 710 (1st Cir.1996). For the first time on appeal, Shea also objects to the admission of his responses to questions regarding his name and whether he had any weapons. As to these utterances, "we review for plain error and reverse only if an 'obvious' or 'clear' error exists that affects 'substantial rights.' " United States v. Guerrero, 114 F.3d 332, 341 (1st Cir.1997).

All of the statements at issue were elicited under the following circumstances. As Shea was being arrested, Special Agent Mark Little asked him his name and whether he had any weapons or needles. Shea provided his name and stated that he only had a scanner. While he was being arrested, Shea was also heard saying that he should have gone home and asking how the agents knew he was there. After Shea was secured and his guns seized, he was turned over to Special Agent Todd Richards to be transported to the FBI office. As Richards was placing Shea in the car, Shea stated: "What am I going to get for bank robbery, forty years? I'll be out when I'm seventy." On route back to the FBI office, Shea asked the agents, "What do you got me for, a stolen jeep?"

Law enforcement officers must inform suspects of their Miranda rights prior to "custodial interrogation." See Ventura, 85 F.3d at 710. It is essentially undisputed that Shea was in the custody of FBI agents at the time he made the challenged statements. Thus, we focus our inquiry on whether the defendant was subjected to interrogation. The Supreme Court has determined that the term "interrogation" refers not only to direct questioning, "but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In other words, Miranda warnings are required "whenever a person is subjected to either express questioning or its functional equivalent." Id. at 300-301, 100 S.Ct. 1682.

We understand Shea's argument to be that the number of FBI agents and degree of force used to arrest Shea somehow amounted to the functional equivalent of interrogation. Therefore, Shea contends that he should have been informed of his Miranda rights immediately upon his arrest. We disagree.

As to the statements at issue in his motion to suppress, the defendant fails to identify any specific acts or statements by FBI agents which were "reasonably likely to elicit an incriminating response from [him]." Innis, 446 U.S. at 301, 100 S.Ct. 1682. No evidence suggests that the FBI coerced Shea into making these statements. Indeed, the record shows that all of these statements were spontaneous utterances, which we deem to be admissible. See United States v. Rogers, 41 F.3d 25, 31 (1st Cir.1994) (affirming admission of statements that were "voluntary and spontaneous"); United States v. Taylor, 985 F.2d 3, 7 (1st Cir.1993) (allowing admission of statements made from conversation "spontaneously initiated" by suspect); United States v. Voice, 627 F.2d 138, 144 (8th Cir.1980) (finding no Miranda violation where officer did "no more than record defendant's spontaneous responses"). Accordingly, we affirm the district court's denial of the suppression motion.

We also rule that the district court did not clearly err in admitting Shea's answers to questions regarding his name and whether he had any weapons. The FBI agent's inquiry about the suspect's name falls squarely within the exception established in Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), for routine booking questions. See id. at 601, 110 S.Ct. 2638 (questions regarding suspect's name, address, height, weight, eye color, date of birth and current age did not qualify as custodial interrogation). Furthermore, Shea's answer to the agent's question whether he had any weapons is admissible under the public safety exception to Miranda established in New York v. Quarles, 467 U.S. 649, 659, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (finding exception to Miranda for "questions [by police] necessary to secure their own safety or the safety of the public").

Shea responds that the question was not motivated by a concern for public safety because Agent Little's testimony suggests that he would have searched the defendant completely regardless of Shea's answer. However, we note the context in which the question was asked: the agent had just apprehended an individual suspected of attempting to commit a violent crime, armed bank robbery. The arresting agent's question would have facilitated the securing of any weapons on Shea's person whether or not the agent intended to conduct a search of the suspect. Finding no clear error, we affirm the admission of Shea's response.

B. Merit Awards to FBI Agents

Shea asserts that the district court erroneously denied his motion for the discovery of money or rewards provided to certain FBI agents, who were assigned to investigate the defendant. Relying on Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Shea contends that since the requested information was materially exculpatory, the government violated his Fifth Amendment due process rights by failing to disclose such information. We review a district court's denial of a discovery motion for abuse of discretion. See United States v. Phaneuf, 91 F.3d 255, 260 (1st Cir.1996).

In Brady, the Supreme Court held "that the suppression by the prosecution of evidence...