United States v. Carter, 10-15413

• Decision Date: 24 July 2012
• Docket Number: No. 10-15413,D.C. Docket No. 1:09-cr-20470-JEM-1,10-15413
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DWIGHT CARTER Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.DWIGHT CARTER Defendant-Appellant.

No. 10-15413

D.C. Docket No. 1:09-cr-20470-JEM-1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Filed: July 24, 2012

[DO NOT PUBLISH]

Appeal from the United States District Court

for the Southern District of Florida

Before MARCUS and BLACK, Circuit Judges, and HODGES,^* District Judge.

HODGES, District Judge:

Dwight Carter appeals from his convictions and sentences for violations of the Hobbs Act, 18 U.S.C. § 1951(a), and other drug and firearms offenses arising out of the robbery and murder of an armored vehicle security guard. After oral argument and careful review of the record, we affirm in all respects..

I

Carlos Alvarado was employed in Miami-Dade County, Florida, as a security guard stationed aboard a Dunbar armored truck transporting cash collections made from various retail establishments. A few minutes before 11:00 a.m. on Monday morning, December 1, 2008, Alvarado's armored truck entered the parking lot of the Dadeland Mall and parked near a store called The Express. Alvarado exited the truck and entered the mall. He was carrying a holstered firearm, a cell phone and a fabric bag marked "Dunbar." He then made several collections from stores in the mall and accumulated over $ 60,000.00 in his bag.

A few minutes before Alvarado entered the mall, witnesses observed two men moving around within and just outside the premises of The Express store. One was described as a large man, the other was described as smaller and thin in stature.¹ Both men were wearing all black attire, and both were using cell phones,apparently talking to each other. Images captured on surveillance cameras corroborated these observations.

As Carlos Alvarado approached the exit of The Express after making his collections, Carter and Emmanuel Maxime rushed into the store with firearms in their hands, yelling at Alvarado to drop his bag and get on the ground. Instead, Alvarado reached for his holstered weapon and Carter responded by shooting at him at least eight or nine times. Four of the shots found their mark, the last three having been fired after Alvarado had fallen to the floor. Carter then grabbed Alvarado's Dunbar bag and he and Maxime fled the scene making a successful getaway. An hour later, Carlos Alvarado was pronounced dead at the hospital.

Subsequent investigation focused attention on Carter and Maxime as suspects. Investigating officers obtained driver's license photographs of both men and created six-person photographic arrays that were shown to four of the eye witnesses who had been at the mall. Two of the witnesses identified Carter and two others identified Maxime as the perpetrators of the crime. In addition, based upon an examination of cellular telephone records, it was determined that at the time of the robbery, Maxime was using a cell phone registered in his name, and Carter was using a cell phone registered in the name of his mother. During the twenty minute period immediately before the robbery, Carter and Maximeparticipated in six separate telephone calls using cellular telephone towers covering the area of the Dadeland Mall.

On May 18, 2009, investigating officers filed a criminal complaint in the district court supported by a probable cause affidavit of one of the investigators. The complaint alleged that Carter and Maxime had violated the Hobbs Act, 18 U.S.C. § 1951(a) – interference with interstate commerce by robbery – and had also violated 18 U.S.C. § 924 (c)(1)(A) by possessing a firearm in furtherance of a crime of violence resulting in the death of another person. After reviewing the complaint and supporting affidavit, a United States Magistrate Judge issued arrest warrants for Carter and Maxime.

At 6:00 a.m. on the morning of May 20, 2009, law enforcement officers arrived at the home of Carter's parents to effect Carter's arrest. Carter was living with his parents at that time together with his girlfriend, Erskaneshia Ritchie.² Carter was arrested at approximately 6:20 a.m. and gave his consent to a search of the house and his car.³

Carter was then transported to a county police building and placed in an interview room at 7:47 a.m. for initial processing. At 8:25 a.m. two investigating officers entered the room, removed Carter's handcuffs, and advised him of his Miranda rights. Carter voluntarily signed a Miranda waiver of rights form, and the officers began questioning him.⁴ The interview was interrupted twice during the morning for breaks requested by Carter. At 11:40 a.m., after one of the breaks, Carter was shown a voluminous chart depicting all of the cellular telephone calls that had been made during December 1, 2008, by the four participants including their respective geographic locations at the time of the calls. At that point Carter began to cry and orally confessed to his guilt as the person who had shot and killed Alvarado. At 12:15 p.m. after his oral confession, the interrogating officers began reviewing with Carter the details of the crime and his participation in it. At 1:17 p.m. Carter asked for a break to eat,⁵ and the interview was interrupted until 1:54 p.m. Carter then agreed to give a formal audio and videotaped statement under oath, and that was done after he was informed about, and once again waived, his Miranda rights. Later in the afternoon, the investigating officers tookCarter to the location he had described as the place he had disassembled and disposed of the murder weapon, and another location where he had burned the Dunbar fabric bag. Corroborating evidence was found at both locations. Carter was then taken before a United States Magistrate Judge for an initial appearance the next day.

A superseding indictment was later returned against Carter and Maxime containing six counts. Count One charged a conspiracy, and Count Two charged a substantive offense, to obstruct, delay and affect commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. Count Three charged a violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(j)(1) by using and carrying a firearm during and in relation to a crime of violence, and by murdering another person in the course of committing such offense. Those three counts were included in, and constituted the entirety of, the original indictment.⁶ Counts Four, Five and Six were added by the superseding indictment and charged Carter alone with a conspiracy and a substantive offense, respectively, involving possession with intent to distributecocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).⁷

At jury trial, Carter was convicted of all six counts of the superseding indictment. At sentencing, the district court imposed maximum, consecutive sentences as to all counts resulting in an aggregate commitment term of life plus 105 years.

II

A. Denial of Motion to Suppress. Carter moved to suppress his confession and the physical evidence seized following his arrest. Acting on a report and recommendation of a Magistrate Judge, the district court denied the motion and Carter's confession, including the videotaped statement made during the afternoon of the day of his arrest, was admitted during the trial. Carter claims that this was error and he presents on appeal the same issues he argued in supportof the motion to suppress in the district court,⁸ only one of which requires discussion.⁹

Carter asserts that there was unreasonable delay in producing him before a judicial officer in violation of Federal Rule of Criminal Procedure 5(a) and 18 U.S.C. § 3501(c), and that his confessions should have been suppressed because they were made during a period of illegal detention resulting from that unreasonable delay. In the context of the facts of this case, this argument has two aspects. The first involves the admissibility of Carter's oral confession made before noon, within six hours after his arrest; and the second involves the admissibility of the audio-video, transcribed repetition of his confession given during the afternoon, more than six hours following his arrest.

The current state of the law governing these issues has evolved from the Supreme Court's decision in McNabb v. United States, 318 U. S. 332, 63 S. Ct.608 (1943). The McNabb defendants were arrested by federal officers between one and two o'clock on a Thursday morning. They were then subject to intense interrogation, off and on, for 48 hours until they had made complete confessions about two o'clock Saturday morning. Only then were they placed on track for an appearance before a judicial officer. Exercising its supervisory authority over federal courts without establishing a constitutional requirement or any general rule of thumb concerning the permissible length of post arrest interrogations, the Supreme Court held that the confessions in the case before it should have been suppressed, saying only "that a decent regard for the duty of courts as agencies of justice and custodians of liberty forbids that men should be convicted upon evidence secured under the circumstances revealed here." 318 U.S. at 347, 63 S. Ct. at 616.

Less than a year after McNabb the Supreme Court decided United States v. Mitchell, 322 U.S. 65, 64 S. Ct. 896 (1944). The court of appeals in Mitchell, relying upon McNabb, had excluded a confession made immediately after the defendant's arrest because the defendant was then detained for another eight days before being presented to a magistrate. The Supreme Court reversed, explaining that McNabb had been mis-applied. Mitchell's confession, otherwise voluntary, was not made during a period of unreasonable delay and illegal detention as inMcNabb, and his confession was held to have been properly admitted at his trial. The extended detention after his confession was simply not relevant to the admission of the confession given before the detention became tainted. 322 U.S. at...