United States v. Brian Shreeves ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4671
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN SHREEVES,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
J. Frederick Motz, Senior District Judge. (1:13-cr-00682-JFM-1)
Submitted: August 23, 2017 Decided: October 4, 2017
Before NIEMEYER and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles N. Curlett, Jr., LEVIN & CURLETT LLC, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, David Metcalf, Seema Mittal, Assistant
United States Attorneys, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On December 12, 2013, a federal grand jury returned an indictment charging Brian
Shreeves with conspiracy to distribute and possess with intent to distribute 100 kilograms
or more of marijuana, in violation of 21 U.S.C. § 846 (2013). The next day, Shreeves
was arrested at the Fallon Federal Building in Baltimore, Maryland, where he was
attending an immigration interview with his wife and his immigration lawyer, Steven
Kreiss, as part of Shreeves’ efforts to adjust his immigration status to that of a lawful
permanent resident. When the door to the interview room opened, law enforcement
agents were waiting and placed Shreeves under arrest and escorted him out of the
building, while his wife and immigration attorney exited a different way. Shreeves
subsequently moved to suppress the statements he made following his arrest, and the
district court denied the motion. A jury convicted Shreeves of the single count in the
indictment, and the district court sentenced him to 66 months’ imprisonment. Shreeves
timely appeals, challenging the district court’s denial of his motion to suppress these
statements.
When considering the denial of a motion to suppress, we review the district court’s
legal conclusions de novo and its factual findings for clear error. United States v.
Giddins, 858 F.3d 870, 878-79 (4th Cir. 2017). We construe the evidence in the light
most favorable to the prevailing party, in this case the Government. United States v.
Stover, 808 F.3d 991, 994 (4th Cir. 2015), cert. denied, 137 S. Ct. 241 (2016).
Shreeves contends that the district court erred in admitting his postarrest
statements, arguing that they were obtained in violation of his Sixth Amendment right to
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counsel. “A criminal defendant’s Sixth Amendment right to counsel attaches at the
initiation of adversary judicial proceedings, which at least includes the point of formal
charge, indictment, information, preliminary hearing, or arraignment.” United States v.
Cain, 524 F.3d 477, 481 (4th Cir. 2008) (citing McNeil v. Wisconsin, 501 U.S. 171, 175
(1991)). Because he had already been indicted, Shreeves’ right to counsel attached prior
to his questioning. Nevertheless, a defendant whose right to counsel has attached is
entitled to waive that right in connection with a police-initiated interrogation. Patterson
v. Illinois, 487 U.S. 285, 292-93 (1988); accord Michigan v. Harvey, 494 U.S. 344, 352
(1990) (“[N]othing in the Sixth Amendment prevents a suspect charged with a crime and
represented by counsel from voluntarily choosing, on his own, to speak with police in the
absence of an attorney.”).
Relying on the trial testimony of his immigration attorney, Shreeves argues that
the district court erred in denying his motion to suppress because law enforcement
officers forcibly prevented his attorney from being present during questioning. However,
we will not consider evidence first presented at trial to reverse a pretrial denial of a
suppression motion where, as here, the defendant did not renew the suppression motion at
trial. United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998); United States v. Hicks,
978 F.2d 722, 724 (D.C. Cir. 1992). Kreiss did not testify at the pretrial motions hearing,
and Shreeves did not renew his suppression motion at trial. We therefore decline to
consider Kreiss’ testimony.
Homeland Security Investigations Special Agent Mary Horn was the only witness
to testify at the suppression hearing with regard to Shreeves’ motion to suppress his
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postarrest statements. Horn testified that Kreiss immediately left when Shreeves was
arrested, without asking questions and without an opportunity for her to ask if he wished
to accompany Shreeves. Horn further stated that, immediately after Shreeves’ arrest,
agents escorted him to her vehicle where she read his Miranda * rights, and Shreeves
signed a Statement of Rights form and a waiver of his rights and agreed to speak with
Horn.
Shreeves argues that his waiver of his rights was rendered involuntary by his
“forcible” and “coercive” separation from Kreiss. Incriminating statements “made during
a custodial interrogation [must] be suppressed unless police advise the defendant of his
rights under Miranda v. Arizona, . . . and the defendant knowingly, intelligently, and
voluntary waives those rights.” Giddins, 858 F.3d at 879 (internal quotation marks
omitted). “Coercive police activity is a necessary finding for . . . a Miranda waiver to be
considered involuntary.” Id. at 881. However, “the coercion must rise to a level such
that the defendant’s will has been overborne or his capacity for self-determination
critically impaired.” Id. at 885 (internal quotation marks omitted).
Assuming without deciding that Kreiss represented Shreeves in a criminal defense
capacity, none of the evidence presented at the suppression hearing supports the notion
that Shreeves was forcibly separated from his attorney. Furthermore, Shreeves’ own
conduct during the interrogation demonstrated his knowing and voluntary waiver of his
rights. Specifically, after signing the Statement of Rights, Shreeves provided information
*
Miranda v. Arizona, 384 U.S. 436 (1966).
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about money that had been seized and his coconspirators. When the agents began to
question Shreeves about his own involvement in drug dealing, however, Shreeves said
that he would need a lawyer, and the questioning ended. Thus, Shreeves demonstrated
that he understood his right to counsel and chose when to exercise that right.
For these reasons, we conclude that the district court did not err in denying
Shreeves’ motion to suppress. Accordingly, we affirm the criminal judgment. We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
AFFIRMED
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