US v. Montes

• Decision Date: 26 March 2010
• Docket Number: No. 08-10932.,08-10932.
• Citation: 602 F.3d 381
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason MONTES; Margarito Armijo, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

602 F.3d 381

UNITED STATES of America, Plaintiff-Appellee, v. Jason MONTES; Margarito Armijo, Defendants-Appellants.

No. 08-10932.

United States Court of Appeals, Fifth Circuit.

March 26, 2010.

COPYRIGHT MATERIAL OMITTED

Leigha Amy Simonton, Asst. U.S. Atty. (argued), Dallas, TX, for U.S Lydia M. Brandt (Court-Appointed), Brandt Law Firm, P.C., Richardson, TX, for Montes.

Before REAVLEY, DAVIS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In a scene reminiscent of the long ago days of Butch Cassidy and the Sundance Kid, Jason Montes ("Montes") and Margarito Armijo ("Armijo") were involved in a bank robbery spree. Much like the now infamous characters, their careers as bank robbers were short-lived and came to an end when they were captured by authorities. They now appeal their convictions and Montes also appeals his sentence. Finding no reversible error, we affirm.

I.

Montes and Armijo, along with others, participated in at least eight armed bank robberies in the Dallas area between July and September 2006 and stole more than one hundred thousand dollars. In most of the bank robberies, the same basic modus operandi was followed. The bank robbers drove to the target location in a stolen, four-door Honda Accord; ran into the bank wearing dark clothes, gloves, and ski masks and carrying guns; demanded money from the tellers and put it in a large, dark-colored duffel bag; and exited the bank within one minute of entering. They drove off in the Accord and left the car— still running, with at least one of the doors open—within a mile of the bank and had someone pick them up, usually in a white Ford Expedition, to continue their escape. Montes participated in the bank robberies by stealing the Hondas the day before the robberies and by entering the bank armed and demanding money. Armijo sometimes entered the banks carrying a gun and other times acted as the pick-up driver who retrieved the robbers at the place where they abandoned the Accord.

Armijo and Montes were indicted on several counts of bank robbery in violation of 18 U.S.C. § 2113(a) and (b) and 18 U.S.C. § 2; conspiring to commit bank robbery in violation of 18 U.S.C. § 371; and possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1). Both moved to suppress their post-arrest written confessions; the district court denied their motions. At trial, they were found guilty on all counts. The court sentenced Armijo to 4,692 months' imprisonment and Montes to 4,705 months' imprisonment.

II.

On appeal, Montes and Armijo raise six points of error which we address in turn.

A.

Armijo first contends that the district court erred by not suppressing his post-arrest written confession because government agents continued to question him after he allegedly asked for an attorney. In reviewing a district court's denial of a defendant's motion to suppress, this court reviews factual findings, including credibility determinations, for clear error, while we review legal conclusions de novo. United States v. Solis, 299 F.3d 420, 435 (5th Cir.2002); United States v. Foy, 28 F.3d 464, 474 (5th Cir.1994). "A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole." United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.2001). Where a district court's denial of a suppression motion is based on live oral testimony, the clearly erroneous standard is particularly strong because the judge had the opportunity to observe the demeanor of the witnesses. Solis, 299 F.3d at 436; Foy, 28 F.3d at 474. We review the evidence in the light most favorable to the prevailing party, which in this case is the government. Solis, 299 F.3d at 436.

It is black letter law that when a suspect who is subject to custodial interrogation exercises his right to counsel, law enforcement officers must cease questioning until counsel is made available to him, unless the accused himself initiates further communication, exchanges or conversations with the officers. Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Generally, an invocation by a suspect of his right to counsel that is ignored by law enforcement officers requires that the suspect's statements made after the request be excluded by the trial court. Id. If a suspect, however, makes an ambiguous or equivocal reference to an attorney there is no requirement that law enforcement cease questioning. See Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (holding that an ambiguous reference to counsel does not invoke the right to an attorney); see also United States v. Scurlock, 52 F.3d 531, 535-37 (5th Cir. 1995). Further, the investigator conducting the questioning has no obligation to attempt to clarify the ambiguous comment of the accused. Davis, 512 U.S. at 461, 114 S.Ct. 2350. Thus, "law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." Id.

In this case, Armijo signed a waiver which detailed his ability to invoke his right to counsel at any time and end questioning. During the suppression hearing, government agents testified that after Armijo waived his rights they asked "if he wanted to tell his side of the story." Armijo began discussing his crimes and "there came a point when the agents asked him to write out a statement." At that point, the agents testified that Armijo said something to the effect of, "Maybe I should get an attorney" or "Do I need an attorney?" The officers testified unequivocally that the request was "vague" and "wasn't a demand;" Armijo never "affirmatively said he wanted an attorney." After hearing Armijo's contrary testimony, the district court found that since Armijo did not clearly invoke his right to counsel, as required, his post-arrest statements made after his ambiguous request for an attorney were admissible. We see no reason to disturb that conclusion.

Generally, our finding that the district court's determination that Armijo's reference to an attorney was ambiguous would end our inquiry. However, Armijo argues that, because he presented evidence at the suppression hearing that he had a learning disability, the district court should have held that his ambiguous statements requesting an attorney sufficiently invoked his right to counsel and required cessation of the interview. Nothing in our review of the record supports Armijo's claim. Instead, the record shows that Armijo's alleged learning disability did not impair his ability to understand and unequivocally invoke his right to counsel when two of the same government agents, who later interviewed him post-arrest, tried to question him at an earlier time concerning the same bank robberies for which he has now been convicted. This clearly supports the district court's finding that Armijo understood his rights and could have unambiguously invoked his right to counsel but failed to do so.

B.

In his second issue, Armijo argues that the district court improperly instructed the jury on the firearms offenses. He also argues that the jury instructions are "convoluted and extremely hard to understand." In assessing a jury instruction, this court considers whether it is a "correct statement of the law," United States v. Pompa, 434 F.3d 800, 805 (5th Cir.2005) (internal quotation marks omitted), whether it "clearly instructs jurors," id., and whether it is "factually supportable," United States v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir.2003). Because Armijo failed to object at trial, we review the contents of the district court's jury instruction for plain error. See United States v. Partida, 385 F.3d 546 (5th Cir.2004).

The relevant statute of conviction punishes "any person who, during and in relation to any ... crime of violence ... carries a firearm." 18 U.S.C. § 924(c)(1). Notably, the district court adopted our pattern jury instructions and instructed the jury as follows:

Title 18, United States Code, Section 924(c)(1), makes it a crime for anyone to use or carry a firearm during and in relation to a crime of violence or to possess a firearm in furtherance of such a crime.

For you to find a defendant guilty of this crime, you must be convinced that the government has proven each of the following beyond a reasonable doubt:

First: That the defendant committed the crime alleged in Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, or 35. I instruct you that bank robbery, attempted bank robbery, and conspiracy to commit bank robbery are crimes of violence; and

Second: That the defendant knowingly used or carried a firearm during and in relation to, or knowingly possessed a firearm in furtherance of, the defendant's alleged commission of the crime charged in Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, or 35. To prove the defendant "used" a firearm in relation to a crime of violence, the government must prove that the defendant actively employed the firearm in the commission of Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, or 35, such as a use that is intended to or brings about a change in the circumstances of the commission of Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, 25, 27, 29, 31, 33, or 35.

To prove the defendant "carried" a firearm, the government must prove that the defendant carried the firearm in the ordinary meaning of the word "carry," such as by transporting a firearm on the person or in a vehicle. The defendant's carrying of the firearm cannot be merely coincidental or unrelated to the crime of violence.

To prove the defendant possessed a firearm "in furtherance," the government must prove that the defendant possessed a firearm that further, advances, or helps forward the crime of violence.

"In relation to," means that the firearm must have some purpose, role, or effect with respect to the drug trafficking crime.

Armijo was charged with section 924...