United States v. Nelson ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4924
DAMION NELSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-95-51)
Argued: January 30, 1998
Decided: April 17, 1998
Before HAMILTON and LUTTIG, Circuit Judges, and
VOORHEES, United States District Judge for the
Western District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
_________________________________________________________________
COUNSEL
ARGUED: Joseph Thomas Love, Jr., Charlottesville, Virginia, for
Appellant. Nancy Spodick Healey, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Charlottesville, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Damion Nelson was convicted on charges of conspiracy to commit
bank robbery, aggravated bank robbery, and using or carrying a fire-
arm during and in relation to a crime of violence. Nelson appeals the
exercise of federal jurisdiction over him as a juvenile pursuant to 18
U.S.C. § 5032 and other issues related to his conviction and sentenc-
ing. Finding the defendant's assignments of error meritless, we affirm
his conviction and sentence.
I.
On Friday, August 4, 1995 at approximately 12 noon, sixteen-year-
old Damion Nelson, Richard Suarez, and two other co-defendants
known as "Killer" and "Steve" entered a branch office of Jefferson
National Bank in Charlottesville, VA. Suarez stood inside the door
displaying a sawed-off shotgun, while Nelson, Killer, and Steve
jumped the counter. Nelson and Steve brandished handguns, ordering
the employees and patrons to look away or get down and not to look
at them. The four succeeded in stealing $192,000 from the bank.
As they were fleeing, Suarez dropped the sawed-off shotgun,
which was later recovered by the police. After the robbery, Nelson
and several co-defendants went to a hotel room where they distributed
the money. A total of ten co-defendants were involved in the planning
and execution of this armed bank robbery, some of them from the
New York area and some from the Charlottesville area.
On October 23, 1995, Nelson was arrested by the New York City
Police Department on unrelated state charges. Based upon an out-
standing federal warrant for Nelson, New York authorities turned him
over to the FBI on the following day. After being advised of his rights
and signing a waiver, Nelson provided a statement admitting that he
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acted as a "lookout" during the August 4, 1995 robbery of the Jeffer-
son National Bank in Charlottesville, VA.
On October 25, 1995, the Government filed a juvenile information
charging inter alia aggravated bank robbery and conspiracy. At that
time, the Government also filed a certification pursuant to 18 U.S.C.
§ 5032.
On November 30, 1995, the district court held a transfer hearing
and found federal jurisdiction over the case. It also determined that
the defendant should be prosecuted as an adult pursuant to the manda-
tory transfer provisions of 18 U.S.C. § 5032. Nelson was subse-
quently indicted along with ten co-defendants of charges stemming
from this armed bank robbery.
Following a five day trial, the jury returned a guilty verdict con-
victing Nelson on all three counts. He was subsequently sentenced by
the district court to sixty months on the conspiracy to commit bank
robbery charge, ninety-six months to run concurrently on the aggra-
vated bank robbery charge, with a consecutive 120 months on the use
or possession of a firearm during and in relation to a crime of vio-
lence charge.
Nelson now appeals his conviction and sentence on several
grounds.
II.
The defendant's main argument is that the district court improperly
held that a case arising from an armed bank robbery creates a substan-
tial federal interest warranting the exercise of federal jurisdiction over
him pursuant to 18 U.S.C. § 5032.
The district court in this case originally held that the certification
filed pursuant to 18 U.S.C. § 5032 was not reviewable. Following the
issuance of our decision in United States v. Juvenile Male #1, 86 F.3d
1314, 1319 (4th Cir. 1996), in which a majority of the Court held such
certifications to be reviewable, the district court reconsidered its prior
ruling, held an evidentiary hearing, and ultimately reaffirmed its deci-
sion.
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The defendant argues that there is not a substantial federal interest
in this case because this was just an ordinary bank robbery. He con-
trasts the ordinary bank robbery with offenses where substantial fed-
eral interest exists including assaults on, or assassination of, federal
officials, aircraft hijackings, kidnappings, major espionage or sabo-
tage, etc. United States v. Male Juvenile, 844 F.Supp. 280, 283 (E.D.
Va. 1994) (quoting S. Rep. No. 225, 98th Cong., 2d Sess. 389,
reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3529).
The defendant does not argue that bank robbery can never involve
a substantial federal interest. Rather, he argues that no substantial fed-
eral interests were implicated in this case because no one was injured
in the bank robbery, there was no allegation that the loss of approxi-
mately $192,000 affected the liquidity of the FDIC, and the bank rob-
bery was not part of a larger criminal enterprise.
Contrary to the defendant's assertion, we find a substantial federal
interest to exist in this case. In 1994, Congress lowered to thirteen the
age at which a juvenile may be prosecuted as an adult when he pos-
sesses a firearm during a bank robbery. This amendment served
explicitly to expand the scope of federal jurisdiction over juveniles
who commit armed bank robberies. Violent Crime and Control and
Law Enforcement Act of 1994, Pub. L. No. 103-322.
The circumstances of this case also compel a finding of a substan-
tial federal interest. Bank robbery is a federal offense and the harsh-
ness of the penalty for aggravated bank robbery and use of a weapon
in connection with it favor a finding of a substantial federal interest.
Further, the defendant crossed state lines to commit the bank robbery,
succeeded in taking a large amount of money, and was ultimately one
defendant of an eleven defendant case where there was a significant
interest in trying all defendants together. The defendant's extensive
prior criminal contacts also resulted in a mandatory transfer to adult
status pursuant to 18 U.S.C. § 5032, further evidencing the appropri-
ateness of exercising federal jurisdiction in this matter. For these rea-
sons, the district court did not err in finding a"substantial federal
interest" sufficient to warrant federal jurisdiction over this case.
III.
We next examine Nelson's claims that the district court errone-
ously denied his motion to suppress his confession based on a lack of
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voluntariness, or alternatively, on the basis that he did not make a
knowing, intelligent, and voluntary waiver of his Miranda rights.
On appeal, the trial court's determination regarding voluntariness
is reviewed de novo. However, the "findings of fact on the circum-
stances surrounding the confession will be accepted unless clearly
erroneous." United States v. Guay, 108 F.3d 545, 549 (4th Cir. 1997).
In determining the voluntariness of a statement, the court looks to the
"totality of the circumstances." Id. The crucial issue is whether "the
government's agents have overborne the subject's will or have left his
capacity for self-determination critically impaired." Id.The defendant asserts that at the time of the alleged confession he
was tired and hungry, that he was handcuffed with one hand to a bar
inside the interview room, that he was a juvenile with only a 9th grade
education and a full scale I.Q. of 80, and that he was told by the
agents that it would be better for him if he gave a statement. Given
these assertions, Nelson argues his will was overborne and his state-
ment should be suppressed.
At the evidentiary hearing on this matter, FBI Special Agent
Cocuzzo testified that the defendant mentioned being sleepy, but was
awake and alert en route to the FBI office for questioning. He testified
that he bought the defendant a candy bar and a Coke prior to the inter-
view and that the interview itself lasted approximately 20 minutes. He
further stated that the interview was not heated and no voices were
ever raised.
The defendant, a seventeen-year-old with a ninth grade education,
testified that he was hungry at the time of the interview and that the
agents told him it would be better if he made a statement. The court
elicited testimony from the defendant that he had refused breakfast
when it was offered to him at central booking prior to the interview
with the agents.
Based on the record before us, the district court's findings that the
combined circumstances of sleep deprivation, hunger, and nervous-
ness were not sufficient to overcome the defendant's will are sup-
ported in the record and are not clearly erroneous. Accordingly, we
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find that the district court properly denied the defendant's motion to
suppress.
The defendant also alleges that the district court erred in denying
defendant's motion to suppress his statement on the basis that the
defendant did not make a knowing, intelligent, and voluntary waiver
of his Miranda rights. Nelson's argument is that he did not have a full
understanding of his Miranda rights and did not realize the conse-
quences of waiving them. Therefore, he claims, his waiver was not
valid and the district court should have suppressed his statement.
The evidence in the record is quite to the contrary. First, Dr. Hawk,
who conducted a psychological evaluation at the defendant's request
concluded that the defendant (1) had the "capacity to accurately read
and comprehend the core elements of the Miranda warning," (2) had
a "clear awareness of the benefit of securing counsel and the poten-
tially negative outcomes associated with making a statement to the
police," and (3) "is not particularly suggestible." Secondly, the defen-
dant in his own testimony admitted both reading and signing the
Miranda rights/waiver of rights form provided by Agent Cocuzzo at
the time of the interview. In addition, both the New York detective
who first interviewed him and FBI Agent Cocuzzo testified that they
advised the defendant of his rights.
Based on this evidence, we find that the district court's findings in
regard to the circumstances of the Miranda warnings are supported by
the record and are not clearly erroneous. Accordingly, the defendant's
Miranda waiver was both knowing and voluntary, and the district
court correctly denied the motion to suppress.
IV.
We now turn to the defendant's challenge to the sufficiency of the
evidence underlying his convictions for conspiracy to commit bank
robbery, aggravated bank robbery, and using or carrying a firearm
during and in relation to a crime of violence.
The standard for the appellate court in reviewing the sufficiency of
the evidence is whether "viewing the evidence in the light most favor-
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able to the government, any rational trier of facts could have found
the defendant guilty beyond a reasonable doubt." United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982) (citations omitted).
The defendant argues that no physical evidence was introduced,
that none of the bank employees or customers were able to identify
him, that his statement was not tape recorded or reduced to writing,
and that the testimony of co-defendants who all had plea agreements
with the Government was insufficient to support a finding of guilt.
At trial, the Government offered the testimony of the co-
defendants, evidence that two of the defendant's fingerprints were
found on the getaway car, and the defendant's own confession, under-
stated though it was, of his involvement in the bank robbery. The
defendant's assertion that no physical evidence was introduced and
that there was no identification of him by bank employees or custom-
ers is meritless in light of co-defendant testimony establishing all the
elements of the crimes charged. The defendant attacks the co-
defendants' testimony as not credible. However,"it is for the jury and
not the appellate court to weigh the evidence and judge the credibility
of the witnesses." Id. Further, "this circuit recognizes that the testi-
mony of a defendant's accomplices, standing alone and uncorrobo-
rated, can provide an adequate basis for conviction." United States v.
Burns, 990 F.2d 1426, 1439 (4th Cir. 1993) (citations omitted).
We, therefore, find that sufficient evidence was introduced at trial
from which the jury could have reasonably concluded that the essen-
tial elements of all three crimes were met.
V.
The defendant also challenges two issues relating to his sentence.
He argues that the district court improperly calculated his criminal
history when it included two points for a misdemeanor juvenile adju-
dication for petty larceny that he denied committing and that was not
supported by fingerprint evidence.
In reviewing a sentence imposed by the district court, "[t]he court
of appeals shall give due regard to the opportunity of the district court
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to judge the credibility of the witnesses, and shall accept the findings
of fact of the district court unless they are clearly erroneous and shall
give due deference to the district court's application of the guidelines
to the facts." 18 U.S.C. § 3742(e).
In this case, the defendant took the stand at the sentencing hearing
and denied that he was found guilty of an attempted petty larceny
charge listed in the pre-sentence report. The Government offered the
testimony of Rob Harper, U.S. Probation Officer, that the conviction
came from certified records of the State of New York. Other informa-
tion regarding the conviction, including the birthdate and address of
the perpetrator, matched like data of the defendant. The defendant
argues that the court should not have relied on these records because
they were unsupported by fingerprints.
The defendant has the burden of showing the conviction's inappli-
cability and his denial in this case rings hollow in light of the contrary
proof. We, therefore, find that the district court's determination that
the defendant committed the attempted petty larceny is not clearly
erroneous and we affirm.
The defendant also contends that the district court erred in denying
him a downward departure because he was a juvenile at the time of
the crime and had a low average I.Q. The refusal of a district court
to depart is not reviewable on appeal absent a mistaken conclusion by
the district court that it lacked authority to depart. United States v.
Dorsey, 61 F.3d 260, 263 (4th Cir. 1995), cert. denied, 116 S.Ct. 732(1996); United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
Finding no evidence that the district court misunderstood its authority,
we dismiss this assignment of error.
AFFIRMED IN PART; DISMISSED IN PART
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