United States v. Gregory Graves , 551 F. App'x 680 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4416
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY GRAVES,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:10-cr-00164-PJM-1)
Argued: October 31, 2013 Decided: January 13, 2014
Before MOTZ and AGEE, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Anderson wrote the
opinion, in which Judge Motz and Judge Agee joined.
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Steven Edward
Swaney, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, Martin G. Bahl, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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ANDERSON, District Judge:
Following a trial in the United States District Court for
the District of Maryland, Southern Division, a jury found
Gregory Graves guilty of robbery, 18 U.S.C. § 1951, and two
weapons offenses, 18 U.S.C. §§ 922(g)(1), 924(c). On appeal,
Graves argues that the district court erred by (1) denying his
motion to suppress statements that he made to the police; (2)
denying his motion to dismiss the indictment because of a
violation of the Speedy Trial Act, 18 U.S.C. §§ 3161–3174; and
(3) admitting Graves’ prior robberies as evidence under Rule
404(b) of the Federal Rules of Evidence (“Rule 404(b)”). For
reasons set forth below, we affirm.
I.
In the early morning hours of December 31, 2009, Graves
walked into a 7-Eleven store on Central Avenue in Capitol
Heights, Maryland. Graves pointed a shotgun at the cashier,
demanded money from the register, and, subsequently, fled on
foot with an unknown amount of money. Graves did not wear a
mask during the robbery, and a store surveillance camera
captured an image of his face. A week later, in the evening of
January 6, 2010, Graves entered another 7-Eleven store, on
Boone’s Lane in District Heights, Maryland. As before, Graves
demanded money from the cash register, but this time he wore a
black ski mask and brandished a knife. When the employees
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refused, Graves walked behind the counter, tried unsuccessfully
to open the register, and then fled. An employee later gave the
police a description of the car in which Graves left. During
the investigation that ensued, a detective found in the state’s
vehicle database a 1985 Mercury registered to Graves, and that
car matched the description provided by the employee of the
Boone’s Lane store. Based on Graves’ driver’s license
photograph, the detective also identified Graves as the person
who had robbed the Central Avenue store.
On January 9, 2010, law enforcement authorities arrested
Graves and transported him to a police station in Prince
George’s County, Maryland. At the police station, Graves was
placed in an interrogation room. After about an hour of
waiting, Graves knocked on a table and called out for an
officer. In response, a detective from another division, whose
desk was near the interrogation room, opened the door. Video-
audio surveillance equipment captured some of their exchange:
Detective: Can I help you?
Graves: Excuse me, when do I . . . see about a phone call?
Detective: When do you get a phone call?
Graves: Yeah . . .
Detective: Um, does somebody know you’re . . . ?
Graves: . . . attorney.
Detective: . . . Okay, I will let them know. Okay?
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Graves: Thank you, ma’am. *
Shortly after this exchange, two other detectives entered
the interrogation room. During questioning, Graves signed a
form waiving his rights under Miranda v. Arizona, 384 U.S. 436
(1966), and admitted both orally and in writing that he had
committed the robbery at Central Avenue and the attempted
robbery at Boone’s Lane. As a result of Graves’ statements, the
police later recovered a shotgun behind Graves’ home.
A grand jury returned an indictment on April 12, 2010,
charging Graves with two counts of obstructing, delaying, and
affecting, and attempting to obstruct, delay, and affect,
commerce by robbery, in violation of 18 U.S.C. § 1951; one count
of possessing, using, and brandishing a firearm in furtherance
of a crime of violence, in violation of 18 U.S.C. § 924(c); and
one count of being a prohibited person in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1).
Graves made his initial appearance on May 5, 2010, and was
arraigned on May 17, 2010. On June 1, 2010, Graves filed a
motion to suppress the statements he had made to the police
detectives during the interrogation after his arrest, arguing
*
After watching the video during a motion’s proceeding, the
detective testified that she did not have an independent
recollection of having the conversation with Graves.
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that he had invoked his right to counsel when he asked the first
detective for the opportunity to make a telephone call.
Graves’ motion to suppress, as well as other motions filed
on June 21, 2010, remained pending for more than a year, until
September 30, 2011. On that date, the district court held an
evidentiary hearing and denied Graves’ motions. With respect to
the motion to suppress Graves’ statements, the court stated that
a suspect’s request for an attorney must be honored, but that
such a request must be “clear and unambiguous and reasonably
understood. The court found that Graves “at best . . . was
ambiguously asserting a right to consult his counsel.”
During the same hearing, the parties agreed that the trial,
which was scheduled to begin on November 8, 2011, would take
three to four days. The district court noted that it needed to
get the trial done that week because of the district judge’s
upcoming absence. On October 21, 2011, Graves filed a pro se
motion to dismiss the indictment alleging violations of the
Speedy Trial Act.
On November 1, 2011, during a conference call among the
parties and the district court, the Government indicated that
the trial likely would take longer than anticipated, according
to a memorandum from the district court dated that same day. If
the trial did not finish in three days, the district court
wrote, it would run into a federal holiday as well as the
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district judge’s scheduled travel the following week. The
result would be a lengthy delay in the middle of the trial.
Acknowledging that Graves opposed any continuance in general,
the district court scheduled a status hearing for November 4,
2011, to consider whether to postpone the trial.
At the status hearing on November 4, 2011, the parties and
the district court discussed postponement and its effect on
Graves’ rights to a speedy trial:
Government: [W]ith respect to the speedy trial clock,
our calculations show that we should be fine
currently. We have motions that have been pending for
the majority of the time that this case has been
filed, and there’s currently a motion before the
Court. I do believe there are actually additional
motions that need to be adjudicated with respect to
[Rule] 404(b) and possibly the admission of the
defendant’s videotaped statements, which, if the
defendant doesn’t file a motion in limine, the
government will be filing motions in limine with
respect to that evidence as well.
Counsel for Graves: Your Honor, as we discussed during
the telephone conference, I would object on behalf of
Mr. Graves to the continuance for no other reason than
this case has been around for quite a while. . . . for
well over a year. . . . I understand the logistical
difficulties with the schedule the Court has, but Mr.
Graves also has pending, as the Court knows, a Motion
to Dismiss the Indictment on speedy trial grounds, so
I think all indications . . .
The Court: [B]efore you go much further . . . it does
help for speedy trial purposes to have some motions
pending, but there’s no reason we can’t have a hearing
on the Motion to Dismiss next week. . . . I have time
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to address at least one of these motions without
knocking all of them off the docket.
Counsel for Graves: That would be fine, Your Honor.
And I would indicate to the Court, as government
counsel has, that there is the [Rule] 404(b) issue
[on] which either I or government counsel will have to
file a motion in limine.
The Court: Well, obviously, that would extend the
speedy trial clock anyway . . .
At the conclusion of the hearing, the district court
rescheduled the trial for February 21, 2012, but noted that it
could hear arguments on motions before trial as long as a motion
remained on the docket for speedy trial purposes.
On November 8, 2011, the district court heard arguments on
Graves’ pro se motion to dismiss, which it denied the following
day. At the hearing, the district court also asked the parties
about how much time remained on the speedy trial clock:
Government: I believe there are about 25 more days
remaining on the speedy trial clock. . . . [E]xpired
time totals about 45 days.
The Court: What other motions are contemplated?
Government: Either the defendant or the government is
going to file a [Rule] 404(b) motion relating to the
admissibility of prior convictions.
The Court: How soon is the government going to file
its motion?
Government: We intend to file it today, Your Honor.
. . .
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The Court: And the government’s motion would affect
the clock?
Government: Yes, Your Honor.
At the end of the hearing, the district court reiterated,
“So, the court will deny the motion to dismiss. And I’m assuming
there will be further motions filed today or immediately”
tolling the speedy trial clock.
Two days later, on November 10, 2011, the Government filed
a motion in limine to admit Graves’ prior convictions as
evidence under Rule 404(b). Graves had been convicted of
robbing three 7-Eleven stores over a three-day period in March
2001, including the store on Central Avenue, which was the
subject of count one of the indictment. The motion in limine
remained pending until the first day of trial.
On February 15, 2012, six days before the case was to be
called for trial, Graves filed a second motion to dismiss the
indictment again alleging violations of the Speedy Trial Act.
For the first time, Graves argued that the district court’s
reasons for postponing the trial were insufficient for purposes
of the Speedy Trial Act and that the Government’s motion in
limine had not tolled the speedy trial clock.
On the first day of trial, on February 21, 2012, the
district court heard arguments before jury selection on Graves’
second motion to dismiss for speedy trial violations and on the
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Government’s motion in limine to admit evidence of Graves’ prior
robberies under Rule 404(b). After reviewing Fourth Circuit
case law, the district court denied Graves’ motion to dismiss,
finding that the Government’s Rule 404(b) motion was a “pretrial
motion” that tolled the Act’s 70-day time period. The district
court granted the Government’s motion, deciding that Graves’
past robberies were admissible under Rule 404(b) as relevant to
identity. After three days of trial, the jury found Graves
guilty on all four counts in the indictment. On June 1, 2012,
the district court sentenced Graves to 30 years in prison.
II.
On appeal, Graves challenges his conviction on multiple
grounds. We assess his contentions in turn.
A.
Graves’ first claim of error is that the district court
should have granted the motion to suppress his statements.
Specifically, Graves asserts that he invoked his constitutional
right to counsel when he asked to make a telephone call before
being questioned by the police, and that the court below applied
the wrong legal standard in finding that he did not invoke that
right. We review the district court’s legal conclusions
underlying its suppression determination de novo and its factual
findings for clear error. United States v. Sterling, 283 F.3d
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216, 218 (4th Cir. 2002). For reasons set forth below, we
reject Graves’ argument.
While the text of the Fifth Amendment to the United States
Constitution contains no specific guarantee of counsel, the
constitutional protection against compelled self-incrimination
long has been held to include a right to counsel during
custodial interrogations. See, e.g., Miranda, 384 U.S. at 478–
79. Once a suspect in custody asserts the right to counsel, the
current “interrogation must cease,” and the police may not
approach the suspect for further interrogation “until counsel
has been made available to him.” Edwards v. Arizona, 451 U.S.
477, 484–85 (1981). If the police, subsequently, initiate
interrogation without counsel present and without a break in
custody, the suspect’s statements “are presumed involuntary and
therefore inadmissible as substantive evidence at trial.”
McNeil v. Wisconsin, 501 U.S. 171, 177 (1991). However, police
are not required to cease questioning “if a suspect makes a
reference to an attorney that is ambiguous or equivocal in that
a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to
counsel.” Davis v. United States, 512 U.S. 452, 459 (1994)
(emphasis in original). “Rather, the suspect must unambiguously
request counsel.” Id.
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With this right under the Fifth Amendment as a backdrop,
Graves argues that the heightened standard for invoking his
right to counsel, as established in Davis, applies only when a
suspect has been advised of, and waived, his Miranda rights.
Graves contends that the district court committed reversible
error when it required a clear and unequivocal demand for
counsel even though Graves had neither been advised of, nor
waived, his Miranda rights. However, in making the argument
that a less demanding standard applies before a suspect waives
his Miranda rights, Graves relies on a decision by the Ninth
Circuit Court of Appeals, since vacated by the Supreme Court.
Sessoms v. Runnels, 691 F.3d 1054, 1055 (9th Cir. 2012) cert.
granted, judgment vacated sub nom. Grounds v. Sessoms, 133 S.
Ct. 2886 (2013). The Court has remanded Sessoms to the Ninth
Circuit for further consideration in light of Salinas v. Texas,
133 S. Ct. 2174 (2013). In Salinas, police interrogated a
suspect before he was placed in custody and without Miranda
warnings. Id. at 2177. Drawing no distinction between the
invocation requirements before and after custody and Miranda
warnings, the Court found no Fifth Amendment violation and held
that the suspect did not expressly invoke the privilege against
self-incrimination in response to the questions. Id. at 2178.
In the present action, the district court stated that a
suspect’s request for counsel must be “clear and unambiguous and
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reasonably understood,” and found that Graves “at best . . . was
ambiguously asserting a right to consult his counsel.” We agree
and, accordingly, find no error.
B.
Graves’ next claim of error is that the district court
should have dismissed the indictment pending against him because
of a violation of the Speedy Trial Act, 18 U.S.C. §§ 3161–3174
(“the Act”). Specifically, he contends that the district
court’s reasons for postponing the trial were insufficient for
purposes of the Act and that the government’s motion in limine
was not a pretrial motion that tolled the speedy trial clock.
We need not address the merits of this claim because we find
that Graves ratified the violation of the Act: First, Graves
himself suggested to the district court that the Government’s
motion was a pretrial motion capable of tolling the speedy trial
clock. Second, Graves represented that he would file a motion
tolling the clock if, for some reason, the Government failed to
do so.
Under the Act, the trial of a criminal defendant must
“commence within seventy days from the filing date . . . [of]
the indictment, or from the date the defendant has appeared
before a judicial officer of the court in which such charge is
pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1).
If a defendant is not brought to trial during that 70-day
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period, the district court must dismiss the indictment on motion
of the defendant, though it may choose to do so with or without
prejudice. 18 U.S.C. § 3162(a)(2); United States v. Henry, 538
F.3d 300, 304 (4th Cir. 2008).
In calculating the time within which a defendant’s trial
must begin, however, the Act enumerates certain exceptions and
excludes, among others, any delays for which the district court
finds “that the ends of justice served by taking such action
outweigh the best interest of the public and the defendant in a
speedy trial.” 18 U.S.C. § 3161(h)(7)(A). Also excluded are
delays “resulting from any pretrial motion, from the filing of
the motion through the conclusion of the hearing on, or other
prompt disposition of, such motion.” 18 U.S.C. § 3161(h)(1)(D).
“The plain terms of the statute . . . exclude all time between
the filing of and the hearing on a motion whether that hearing
was prompt or not.” Henderson v. United States, 476 U.S. 321,
326 (1986).
Graves and the Government do not dispute that the original
date for the trial, November 8, 2011, fell well within the 70-
day limit imposed by the Act. Instead, the time period at issue
is between November 9, 2011, when the district court denied
Graves’ first motion to dismiss for violating the Act, and
February 15, 2012, when Graves filed a second motion to dismiss.
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Without any exclusions, that 98-day period placed the trial date
beyond the limits set by the Act.
Graves argues that the Government’s motion in limine to
admit evidence under Rule 404(b), filed on November 10, 2011,
and pending until the first day of trial, on February 21, 2012,
was a notice of the Government’s intent to use evidence, under
Rule 12(b)(4) of the Federal Rules of Criminal Procedure, not a
pretrial motion that would toll the speedy trial clock. Graves
had advanced this argument before the district court in his
second motion to dismiss for violating the Act.
However, before Graves filed that second motion to dismiss
on February 15, 2012, the record shows that he endorsed the view
that the Government’s submission was a pretrial motion that
would toll the 70-day limit imposed by the Act. Moreover,
Graves represented that he would file an appropriate pretrial
motion himself in the event that the Government failed to do so.
At the hearing on November 4, 2011, which involved the
possibility of postponing the trial, the district court
explicitly discussed the status of the speedy trial clock, and
both parties indicated that either of them would be filing a
motion in limine that would toll the time under the Act.
Specifically, Graves’ counsel stated: “[T]here is the [Rule]
404(b) issue [on] which either I or the government counsel will
have to file a motion in limine.” At the hearing on Graves’ pro
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se motion to dismiss on November 8, 2011, counsel for Graves
raised no objections when the Government told the district court
that Graves or the Government would file a Rule 404(b) motion
that would toll the Act. When the district court at the end of
the hearing reiterated that the motion would toll the speedy
trial clock, counsel for Graves again voiced no objections.
Then, just six days before trial, Graves filed his second motion
to dismiss arguing that the Government’s motion in limine was
not a pretrial motion for purposes of the Act and that the
speedy trial clock had been ticking since November 8, 2011,
without any exclusions.
While criminal defendants cannot prospectively waive their
rights to a speedy trial under the Act, we long have recognized
an exception that prevents defendants “from using the [Act] as a
sword and a shield.” See, e.g., United States v. Keith, 42 F.3d
234, 238–39 (4th Cir. 1994). In Keith, we endorsed a rule that
precludes a defendant from “sandbagging the court and the
government by agreeing to a continuance and then later urging a
dismissal using the time covered by the continuance.” Keith, 42
F.3d at 239. If we adopt Graves’ argument, we would be
permitting another sort of sandbagging, by allowing a defendant
to imply that a pending motion tolls the speedy trial clock but
then to seek dismissal on that precise issue. Indeed, Graves’
counsel did more than simply imply that the clock would be
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tolled: He represented that he would file a pretrial motion
tolling the clock should the Government fail to do so. Other
courts have declined to endorse similar strategies. United
States v. Shetty, 130 F.3d 1324, 1331 (9th Cir. 1997) (“[W]e
will not sanction the use of the [Act] as a ‘sandbag,’ held for
540 days and then thrown at the district court ten days before
trial.”); United States v. Gambino, 59 F.3d 353, 360 (2d Cir.
1995) (The Act is “not to be mistaken for the rules of a game
where defense counsel’s cunning strategy may effectively subvert
Congress’ goal of implementing sound trial management.”); United
States v. Baskin-Bey, 45 F.3d 200, 204 (7th Cir. 1995) (A
defendant cannot “implicitly agree to the government’s request
that time be excluded because of [the defendant’s] request, and
then try to sandbag the government by insisting that the time be
counted against the speedy trial clock.”); United States v.
Ciancola, 920 F.2d 1295, 1298 (6th Cir. 1990) (The Act does not
“provide defendants with tactics for ensnaring the courts into
situations where charges will have to be dismissed on
technicalities.”) (internal citation omitted).
We recognize that an overly broad application of the
exception could swallow the Act’s non-waiver rule. Here,
however, counsel for Graves did not alert the district court or
the Government that he questioned the motion in limine’s effect
on the speedy trial clock. Rather, he affirmatively represented
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that should the Government fail to file a motion tolling the
clock, he would do so himself. As a result, we hold that Graves
acquiesced that the Government’s motion in limine was a pretrial
motion, tolling the speedy trial clock. Accordingly, we find no
error.
C.
In a final claim of error, Graves argues that the district
court committed reversible error in admitting under Rule 404(b)
evidence of his three prior robberies of 7-Eleven stores in
March 2001, including the Central Avenue store at issue in this
case. Specifically, Graves submits that the lower court erred
in admitting those prior offenses under Rule 404(b)’s identity
exception because the details of those offenses were not
sufficiently distinctive. We review the district court’s
decision to admit evidence under Rule 404(b) for abuse of
discretion, United States v. Basham, 561 F.3d 302, 325 (4th Cir.
2009), and will not find that it abused its discretion unless
the decision “was arbitrary and irrational.” United States v.
Weaver, 282 F.3d 302, 313 (4th Cir. 2002). For the reasons set
out below, we reject Graves’ contention.
Rule 404(b) prohibits evidence of “‘other crimes, wrongs,
or acts’” solely to prove a defendant’s bad character, but a
district court may admit such evidence “‘for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
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knowledge, identity, or absence of mistake or accident.’”
Basham, 561 F.3d at 326 (quoting Fed. R. Evid. 404(b)). Rule
404(b) is a rule of inclusion, “admitting all evidence of other
crimes or acts except that which tends to prove only criminal
disposition.” United States v. Young, 248 F.3d 260, 271–72 (4th
Cir. 2001) (internal quotation marks omitted).
For a court to admit prior bad acts under Rule 404(b), the
proffered evidence must be (a) “relevant to an issue other than
character,” including identity or motive; (b) “necessary to
prove an element of the crime charged,” or to prove context; and
(c) reliable. United States v. Byers, 649 F.3d 197, 206 (4th
Cir. 2011) cert. denied, 132 S. Ct. 468 (2011) (internal
citations omitted). In addition, the probative value of the
evidence must not be substantially outweighed by a danger of
unfair prejudice. See Fed. R. Evid. 403.
After weighing the possibility of unfair prejudice to
Graves, the district court held that evidence of the 2001
robberies was relevant to establish identity in light of the
similarities between those offenses and the robbery of the
Central Avenue store and the attempted robbery of the Boone’s
Lane store. Concluding that the district court’s decision to
admit the evidence under Rule 404(b) was neither arbitrary nor
irrational, we find no error.
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III.
For the reasons set forth above, we affirm the judgment of
the district court.
AFFIRMED
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