United States v. Todd

• Decision Date: 09 August 2022
• Docket Number: 18-4161
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. THOMAS JONATHAN TODD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
THOMAS JONATHAN TODD, Defendant-Appellant.

No. 18-4161

United States Court of Appeals, Fourth Circuit

August 9, 2022

UNPUBLISHED

Submitted: July 12, 2022

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O'Grady, Senior District Judge. (1:17-cr-00024-LO-1)

ON BRIEF:

Steven P. Hanna, Richmond, Virginia; Mark Diamond, Richmond, Virginia, for Appellant.

G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before HARRIS and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed in part, vacated in part and remanded by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Thomas Jonathan Todd was found guilty of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a) (Count One); attempt to commit Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a) (Count Two); use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Three); attempt to possess marijuana with intent to distribute (Count Four); use of a firearm during a drug trafficking crime, in violation of § 924(c) (Count Five); possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Six); possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g) (Count Seven); and possession of a stolen firearm (Count Eight). On appeal, he challenges his convictions and sentence on numerous grounds. We vacate Todd's conviction on Count Three, affirm the remaining convictions, and remand for resentencing.

I.

Todd first argues that his § 924(c) conviction for use of a firearm during a crime of violence (Count Three) must be vacated because the predicate offenses, conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery, do not qualify as crimes of violence.^[1] "To sustain a conviction under 18 U.S.C. § 924(c), the government must prove that the defendant (1) used or carried a firearm and (2) did so during and in relation to a crime of violence." United States v. Fuertes, 805 F.3d 485, 497 (4th Cir. 2015) (internal

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quotation marks omitted). Under the force clause in Section 924(c)(3)(A), a "crime of violence" is a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another."^[2] 18 U.S.C. § 924(c)(3)(A).

We have held that conspiracy to commit Hobbs Act robbery is not a crime of violence under the force clause of § 924(c)(3)(A). United States v. Simms, 914 F.3d 229, 233-34 (4th Cir. 2019) (en banc). Further, the Supreme Court has recently held that attempted Hobbs Act robbery is also not a crime of violence under the force clause. United States v. Taylor, 142 S.Ct. 2015 (2022). Accordingly, we vacate Todd's § 924(c) conviction for use and brandishing of a firearm during a crime of violence (Count 3) and remand for resentencing. See United States v. Ventura, 864 F.3d 301 (4th Cir. 2017) (adopting sentencing package doctrine).

II.

Todd filed motions to suppress various of his statements, and on appeal, he asserts that the district court erred by denying his motions. In reviewing motions to suppress statements, we review the district court's factual findings for clear error and its legal determinations de novo, while viewing the evidence in the light most favorable to the Government. United States v. Dire, 680 F.3d 446, 473 (4th Cir. 2012).

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a. Todd's statements immediately after arrest.

In the district court, Todd sought to suppress seemingly spontaneous statements that he made to an officer in the minutes after his arrest. In the Government's response to this part of Todd's motion, the Government explained that it did not intend to introduce those statements at trial, and at the suppression hearing, Todd stated that, due to the Government's representation, he was not proceeding on the issue. Todd does not allege that the Government violated this promise, and the record shows that the statements were not admitted. Accordingly, Todd's argument regarding these statements fails.

b. Videotaped June 24 custodial interrogation.

Shortly after his arrest, Todd was transported to the police station where officers interviewed him. After receiving Miranda^[3] warnings, Todd made statements. On appeal, Todd contends that the officers lied to him by stating that they did not know whether or not he would be charged and misled him by telling him that he was required to talk to them.

The record shows that Todd was clearly informed that he did not have to speak with the officers. He was given the proper warnings, and he expressed his desire to talk to the officers. Moreover, the officers informed Todd of the charges that they were investigating and did not impermissibly mislead him. See United States v. Clenney, 631 F.3d 658, 668 (4th Cir. 2011) (holding that Miranda does not require that the police inform the suspect of the charges against him); see also Bobby v. Dixon, 565 U.S. 23, 28 (2011) ("[T]he Court has refused to find that a defendant who confesses voluntarily, after being falsely told that

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his codefendant has turned State's evidence, does so involuntarily."); Colorado v. Spring, 479 U.S. 564, 573-74 (1987) (failure of police to supply suspect with nature or scope of investigation does not render waiver involuntary). We therefore concluded that the district court properly declined to suppress these statements.

c. Custodial, audiotaped interrogation on June 24.

After Todd's initial interview, he was transported to a detention center and was then brought before a magistrate judge. Once Todd was processed, he requested to speak with one of the officers again. The discussion was audio recorded, and Todd made a lengthy, unprompted statement about a stolen firearm. The officer then began asking questions, and Todd responded.

On appeal, Todd contends that, because he had been brought before a magistrate judge, he was entitled to have counsel present prior to any questioning. The Sixth Amendment right to counsel attaches at the commencement of formal legal proceedings against a suspect. See Michigan v. Jackson, 475 U.S. 625, 629 (1986). The Sixth Amendment, therefore, prohibits police-initiated interrogation of an accused without the presence of his attorney once he has asserted such. Id. at 629-30. The same "voluntary, knowing, and intelligent" waiver standards applies to Sixth Amendment rights as well, and a waiver of Fifth Amendment rights under Miranda also waives the Sixth Amendment right to counsel. Montejo v. Louisiana, 556 U.S. 778, 786-87 (2009) (citing Patterson v. Illinois, 487 U.S. 285 (1988)). Moreover, "[p]olice are not required to rewarn suspects from time to time." Berghuis v. Thompkins, 560 U.S. 370, 386 (2010).

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Here, only a few hours had passed since Todd was read and waived his rights. Todd does not aver that he ever asserted his right to an attorney during questioning, and the record does not support such a finding. In fact, the record shows that Todd initiated the challenged questioning. We conclude that the totality of the circumstances had not changed so seriously from when the prior warnings were given that the waiver was no longer knowing and intelligent. See Wyrick v. Fields, 459 U.S. 42, 47 (1982). Accordingly, the district court correctly denied the motion to suppress.

d. June 28 custodial interrogation.

After police searched Todd's car, they found marijuana, cocaine, over 800 rounds of ammunition, a pipe with grains of gunpowder on the cap threads, a bag of gunpowder, and an ignition mechanism. This evidence inevitably led to an arrest warrant for new charges, and Todd-who had been released on bail-was rearrested several days later.

Todd contends that the officer rearrested him for the purpose of conducting another interview without counsel. Todd does not specify whether the interview violated...