United States v. Francis ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4326
JOSEPH LYNN FRANCIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-97-12-R)
Submitted: November 12, 1997
Decided: December 5, 1997
Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Gary M. Bowman, Roanoke, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Jennie L.M. Waering, Assistant
United States Attorney, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Joseph Lynn Francis was convicted pursuant to his
guilty pleas of one count each of unauthorized use of an access device
(18 U.S.C. § 1029(a)(2) (1994)) and impersonating a government
agent (18 U.S.C. § 912 (1994)). On appeal, he asserts that the district
court abused its discretion by denying his motion to withdraw his
guilty plea. Francis based his motion on his allegation that his confes-
sion was illegally obtained. Finding no reversible error, we affirm.
Francis acquired numerous credit cards by falsely representing to
others by telephone that he was an agent with a credit card company.
Over a two-month period, Francis used the cards to purchase more
than $20,000 worth of goods and services. On some occasions, he
pressured merchants to accept the credit cards by falsely representing
himself as an agent with the "United States Fugitive Retrieval
Agency," a nonexistent agency. Francis was eventually apprehended
by Virginia authorities and charged under state law for credit card
fraud. Pursuant to his request, an attorney from the local public
defender's office was appointed to represent him.
However, prior to consulting with this attorney, Francis initiated
conversations with state and federal agents in an effort to confess his
crimes and be prosecuted under federal law. The record discloses that
Francis sought federal prosecution because he acted as an informant
while he was a state prisoner. His testimony resulted in the conviction
of three capital murderers, and thus Francis feared for his life if he
returned to the state prison system. Prior to interviewing him, agents
fully advised Francis of his rights pursuant to Miranda v. Arizona,
384 U.S. 436 (1966), and Francis executed a waiver each time.
Francis cooperated fully with authorities and pled guilty at trial
pursuant to a plea agreement. Prior to sentencing, Francis, who by this
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time had a different attorney, filed a motion to withdraw his guilty
plea on the ground that his confession was illegally obtained when
agents questioned him after he had invoked his right to counsel. The
district court conducted a hearing and denied the motion.
We find that the district court did not abuse its discretion in deny-
ing Francis's motion. The sole basis for the motion was Francis's
belief that his confession was illegally obtained and would be sup-
pressed if he went to trial, thereby resulting in an acquittal. We dis-
agree. While Francis is correct that authorities may not continue to
question a suspect after he invokes his right to counsel, this right can
be waived if the defendant subsequently initiates further communica-
tion with authorities. See Edwards v. Arizona , 451 U.S. 477, 484-85
(1981); United States v. Evans, 917 F.2d 800, 804-05 (4th Cir. 1990),
overruled on other grounds by United States v. Lancaster, 96 F.3d
734 (4th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 65 U.S.L.W. 3569(U.S. Feb. 18, 1997) (No. 96-6450). Here, the district court expressly
found, and Francis admitted, that he initiated contact with federal
authorities which led to his confession. In fact, the record discloses
that Francis insisted on cooperating with federal authorities. More-
over, Francis was advised of his rights prior to each interview and
waived them every time. As a result, we conclude that Francis's con-
fession was not obtained in violation of his constitutional rights and
that there was no basis for withdrawal of his guilty plea.
Accordingly, we affirm Francis's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the material before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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