United States v. Robert Blackman, Marvin Hinsey, Kenny Thompson, Salathiel Calvin Thompson , 66 F.3d 1572 ( 1995 )

EDMONDSON, Circuit Judge.

In July 1990, the Coral Gables Bank and the First Union bank were robbed. Defendants were arrested in September and indicted on two counts of armed robbery and two counts of using a firearm in the commission of a felony. Defendants Kenny Thompson (Kenny), Salathiel Thompson (Salathiel), and Marvin Hinsel are from the Bahamas; defendant Robert Blackman is a United States citizen. Defendants confessed but later filed a motion to suppress the confessions, claiming they had been coerced.

At the suppression hearing before a magistrate judge¹, defendants claimed that FBI agents surrounded the apartment where Kenny and Salathiel Thompson lived, ordered all four defendants to come out with their hands up, handcuffed them, and arrested them without reading them their rights. Defendants assert that two Bahamian police officers arrived on the scene, pointed a gun at Salathiel, and threatened to kill him if he did not cooperate with the FBI. At the hearing, defendants said they were coerced into confessing by FBI agents who threatened to turn them over to the Bahamian officials if they did not admit to the robberies.

According to the government, law enforcement officials went to the Thompsons’ apartment after receiving a lead from Bahamian officials which linked defendants to the robberies. No arrest warrant was obtained. The agents went to the house, not to arrest defendants, but to investigate the robberies; and they handcuffed defendants for safety reasons. According to the agents, while being handcuffed, or immediately thereafter, Salathiel Thompson asked what the agents wanted. When an agent responded “this is involving a bank robbery of the First Union Bank,” Salathiel responded “O.K., I will tell you about that.” At this point, Salathiel was read his rights and arrested. And, when Salathiel told the agents that the others were involved, the other defendants were read their rights and arrested. All four defendants confessed at the FBI headquarters. The agents denied that defendants were threatened by either the Bahamian police or FBI agents.

The magistrate judge recommended denial of the motion to suppress, and the district court agreed. Defendants were convicted on all charges.²

1. Batson v. Kentucky:

Before voir dire began, the district judge asked the group of potential jurors if they had “compelling reasons” that would affect their ability to sit as a juror in the case. One juror, Mr. Bentley, said that he would have trouble serving on a jury because he was a deeply religious man who believed “it is wrong to judge a person because judgment belongs to God.” Upon questioning from the judge, Bentley added that, if selected, he would do his best to decide the case based on the evidence but “still believed that it is wrong.” Upon further questioning from the prosecutor, Bentley stated that his religious beliefs would “impair [his] ability to sit in judgment in a criminal case.” The court denied the government’s request to strike Bentley for cause. When the government used a preemptory strike to remove Bentley, the defense raised a Batson challenge. The court denied the challenge and said, among other things, that defendants had failed to establish a “pattern” of racial discrimination.

To establish a violation under Batson v. Kentucky, 476 U.S. 79,106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), defendant must present a prima facie ease of purposeful discrimination by showing that the prosecution used preemptory challenges to strike a minority juror and that the circumstances raise an inference of discrimination. United States v. Cure, 996 F.2d 1136 (11th Cir.1993). The government must then demonstrate a raeially-neutral basis for its act. Such justification need not rise to the level of a challenge for cause, but must be an articulable basis which bears some relation to the case before the court. United States v. Williams, 936 F.2d 1243, 1245 (11th Cir.1991). Because the trial judge is uniquely situated to evaluate the prosecutor’s motives, we review the district court’s determination on a Batson challenge under the clearly erroneous standard. Cure, 996 F.2d at 1138.

Defendants claim the trial court misapplied the law by requiring them to show a “pattern” of discrimination. Batson does not require a “pattern” of discrimination, but only the drawing of an inference of racial discrimination through any means. Williams, 936 F.2d at 1245. While defendants correctly state the law, their argument is without effect. After defense counsel advanced the Batson challenge, the trial court asked for the government’s reason for striking Bentley. The prosecutor answered that a “pattern” had not been shown to which the court responded, “I understand that. I would still like to have your reasons.” The prosecutor replied: “Certainly Judge. The reasons are, as we have discussed before with the court, this man stood up before any questioning began of his own volition and said, T cannot be fair.’ ” The trial court then stated that the “record is clear that [Bentley] has been, at least, ambivalent.” After argument from defense counsel, the judge stated that, although he personally believed Bentley would be a fine juror, Bentley was ambivalent. Bentley was struck from the jury.

Through this discussion, the trial court — at least implicitly — found that the government, in fact, had a nondiscriminatory reason for striking Bentley: his assertions during voir dire. And, based on the record of Bentley’s statements, the trial court’s finding is, at least, not clearly erroneous. Because the district court found that the prosecutor was motivated by a nondiscriminatory reason, we need not address the preliminary question of whether defendant established a prima facie showing nor whether the lower court truly believed (incorrectly) that defense counsel was required to show a pattern of discrimination See Cure, 996 F.2d at 1138.³

II. Motion to Suppress:

Defendants contend that their confessions flowed from unlawful arrests. That the government lacked probable cause when FBI agents called defendants out of the apartment and handcuffed them is undisputed by the parties. Defendants claim that their detention constituted an arrest because, under the circumstances, a reasonable person would not have believed he was free to walk away. See United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). So, defendants argue their confessions should have been suppressed as the product of an illegal arrest.

The government argues that the detention was an investigatory detention and did not become an arrest until defendant Salathiel made incriminating statements, at which time the government had probable cause and defendants were arrested and informed of their Miranda rights. Absent probable cause to make an arrest, law enforcement officials may briefly detain a person as part of an investigatory stop if they have a reasonable articulable suspicion based on objective facts that the person has engaged in criminal activity. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1220 (11th Cir.1993). Reasonable suspicion requires more than a hunch; it requires that the totality of the circumstances create, at least, some minimal level of objective justification for the belief that the person engaged in unlawful conduct. Id. at 1221.

The reasonableness of the officers’ conduct must be judged against an objective standard: “would the facts available to the officer at the moment of the seizure or search “warrant a man of reasonable caution in the belief that the action taken was appropriate.” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), cited in Courson v. McMillian, 939 F.2d 1479, 1493 (11th Cir.1991).

In this case, the FBI agents had a reasonable suspicion that the occupants of the apartment committed the two bank robberies. Bahamian officials contacted the FBI about a reliable informant who claimed his friends had committed the robberies. The informant gave a description of the people which matched descriptions given by witnesses to the robberies. On the day of the arrest, the informant met with Agent Boyle, repeated his allegations, and gave Boyle the suspects’ address. Agents conducting surveillance at the residence saw a black male matching the description given by the informant go into the apartment. This evidence was sufficient to give the agents a reasonable suspicion to believe defendants were involved in the bank robberies and to conduct an investigatory stop.

No brightline test separates an investigatory stop from an arrest. Instead, whether a seizure has become too intrusive to be an investigatory stop and must be considered an arrest depends on the degree of intrusion, considering all the circumstances. United States v. Roper, 702 F.2d 984, 985 (11th Cir.1983). We have concentrated on the public interest served by the seizure, the nature and scope of the intrusion, and the objective facts relied upon by the officers. See Courson, 939 F.2d at 1492. In addition, this Court has said the fact that police handcuff the person or draw their weapons does not, as a matter of course, transform an investigatory stop into an arrest. See United States v. Kapperman, 764 F.2d 786, 790 n. 4 (11th Cir.1985); United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir.1989).

Defendants claim their detention from their point of view was unreasonably intrusive because, under the circumstances, a reasonable person would not believe he was free to leave. But, an investigatory stop is not an arrest despite the fact that a reasonable person would not believe he was free to leave. Id.

That the agents initially went to the apartment to talk with the residents and not to arrest them is undisputed. And, the agents testified that they asked defendants to come out of the apartment because the agents did not know how many people lived in the apartment and because the residents were suspected of participating in an armed bank robbery during which shots were fired. (One of the guns used in the robbery appeared to be an automatic weapon.) In the light of the violent nature of the robberies, of the number of suspects (four adult males) involved, and of the agents’ need to protect themselves, the agents’ act of calling for defendants to come out of the apartment and handcuffing them once they were out of doors was not unreasonable. See Hastamo-rir, 881 F.2d at 1557 (handcuffing reasonable to protect officer); Kapperman, 764 F.2d at 790 (handcuffing not unreasonable because officers must protect themselves). Caution was called for even at the investigatory stage. So, defendants’ initial detention was an investigatory stop and not an arrest.⁴

As he was being handcuffed or immediately thereafter, Salathiel Thompson made statements incriminating himself and others; and the agents placed defendants under arrest. These statements and the other evidence linking defendants to the bank robberies were sufficient to cause a reasonable person to believe that defendants committed the bank robberies. So, we affirm the district court’s finding that the agents had probable cause to arrest defendants after Salathiel Thompson’s statements. See Hastamorir, 881 F.2d at 1557 (affirming finding of probable cause based on evidence found during investigative stop).

Defendants Salathiel Thompson, Hinsey, and Blackman additionally contend that the district court should have suppressed their confessions because, after being lawfully arrested, they received no Miranda warnings and because the confessions were coerced. The magistrate judge specifically rejected defendants’ claims. Crediting the agents’ testimony, the magistrate found that all four defendants were fully advised of their Miranda warnings before making the oral statements and signing the written confessions. And, the magistrate rejected defendants’ claims that the statements were coerced. The magistrate specifically found that Salathiel Thompson made his first incul-patory statements during the investigatory stop and before the Bahamian police arrived and found that the FBI agents reassured defendants that they would remain in federal custody and would not be turned over to the Bahamian officials. After de novo review of the record, the district court adopted these findings.

When reviewing a ruling on a motion to suppress, we review the district court’s factual findings for clear error and its application of law to the facts de novo. See United States v. Magluta, 44 F.3d 1530, 1536 (11th Cir.1995). The district court’s ultimate conclusion on the voluntariness of a confession, or the waiver of Miranda rights, raises a question of law to be reviewed de novo. Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976); United States v. Parr, 716 F.2d 796, 817-818 (11th Cir.1983).

After a review of the record, we agree with the district court that Defendants’ confessions were made knowingly and voluntarily, after Miranda warnings were given. We accept that government agents did not threaten to turn Defendants over to the Bahamian officials, but rather told Defendants that they would be kept in federal custody. The district court did not err in denying the motion to suppress.

III. Sentencing:

Defendant Blackman faced a guideline sentence of 562 months to 627 months. At sentencing, his attorney asked the court for a low guideline sentence. The court commented on the fact that defendant Blackman had not “acknowledged some guilt, some fault.” Defendant Blackman began yelling obscenities at the judge and was removed from the courtroom. The judge believed Blackman’s outburst was indicative of his “absolute lack of remorse” and “complete defiance of rules” So, while the other defendants received the lowest possible sentence, the court sentenced Blackman to 627 months, the maximum sentence allowed under the guidelines.

Defendant Blackman argues that he must be resentenced because his statements provided no basis for a sentence enhancement. But, the court did not enhance the sentence; Blackman’s sentence falls within the statutorily required range. The sentencing court said that it was imposing the sentence, not to punish Blackman for making the statements, but because Blackman’s statements reflected his lack of remorse and refusal to accept responsibility for his acts. And, U.S.S.G. § 1B1.4 permits a judge to consider “any information concerning the background, character, and conduct of the defendant.” The sentencing court did not abuse its discretion in considering Blackman’s outrageous conduct at the sentencing hearing.

IV. Sufficiency of the Evidence:

Defendant Kenny Thompson argues that, while he drove the getaway car, no evidence suggests he entered the bank and used a gun. So, he claims the evidence was insufficient to convict him of using a weapon during the commission of a crime. To determine whether sufficient evidence supports the conviction, we must view the evidence in the light most favorable to the prosecution and decide whether a reasonable fact finder could have reached a conclusion of guilt beyond a reasonable doubt. See United States v. Perez, 922 F.2d 782, 784 (11th Cir.1991).

Kenny admits to driving the getaway ear, but when he confessed, he also said he “robbed the First Union Bank.”⁵ Reasonable jurors could have inferred from these words that he both robbed the bank and drove the getaway car. More important, two witnesses testified that four robbers entered the bank; and one of those two witnesses— Laverne Mayfield — identified Kenny as being one of the robbers inside the First Union Bank.⁶ The district court did not err in admitting Ms. Mayfield’s out-of-court identification through Agent Deutsch’s in-court testimony under Federal Rule of Evidence 801(d)(1)(C). The Supreme Court has recognized the reliability and trustworthiness of such photospread identifications. See United States v. Owens, 484 U.S. 554, 561-63, 108 S.Ct. 838, 844, 98 L.Ed.2d 951 (1988) (agreeing with Advisory Committee that such identifications should be fostered not discouraged because as time passes, witnesses’ memories fade); Adail v. Wyrick, 711 F.2d 99,102 (8th Cir.1983) (allowing admission of pretrial identification even though witnesses could not identify defendant at trial).

Defendants’ convictions on all counts are AFFIRMED.⁷

1 . The district court later read the entire file and record, including the hearing transcripts, and “ratified, affirmed and adopted” the magistrate judge’s Report and Recommendation.

2 . At trial, the court dismissed the armed robbeiy charge and weapons charge against Kenny Thompson arising out of the Coral Gables robbery.

3 . Juror McNaughton refused to answer a juror questionnaire and stated that her husband was a drug dealer and that she had gone to jail for possessing a handgun. The judge granted the government’s motion to strike her for cause.

Defendants claim the district court violated Batson. But, no authority suggests Batson extends to the area of challenges for cause. In any event, the district court made a clear finding that McNaughton was struck because of her attitude. The decision to exclude a juror for cause is within the sound discretion of the trial judge. United States v. Taylor, 554 F.2d 200, 202 (5th Cir.1977). Given McNaughton's acts during voir dire, the district court did not abuse its discretion.

4 . Defendants testified that they came out of the apartment after seeing FBI agents outside and hearing "Salathiel Thompson and Marvin Hinsey come out with your hands in the air.” The FBI agent who made the announcement with a loudspeaker said the announcement he made was "... this is the FBI, we would like the occupants in this particular unit of this particular residence to come out the front door one by one.” Another FBI agent, stationed at the front door of defendants’ apartment, testified that he said "FBI, please come out, keep your hands above your head as you come out one at a time.”

No one contends that, before defendants came out, FBI agents ever told defendants they were under arrest or threatened to come in after the defendants if defendants would not come out or threatened to start shooting if defendants did not come out of the apartment or even told the defendants that they had to come out within a certain time. By the way, the supervising agent testified that if defendants had refused to come out, the FBI agents might have just "gone away,” considering that they had no arrest warrants.

The magistrate judge (and the district court) found that defendants voluntarily left the apartment. Once out of doors, the time that defendants were restrained without probable cause— that is, before Salathiel spoke out and defendants were told they were then under arrest — was extremely brief (a few minutes at most, "moments” says the magistrate judge). And before Salathiel spoke out, defendants were not taken or being taken to police vehicles or moved from the area in which they met the police nor had defendants been told that they would be taken away. That the use of handcuffs and the display of weapons do not, by themselves, make an investigatory stop an arrest is plain.

The facts collectively require no finding and conclusion that every reasonable person in defendants' places would conclude (in the minute or so they were restrained before Salathiel spoke) that they were under arrest, as opposed to being only briefly detained for investigatory purposes. (We assume for the sake of argument that this inquiry is essential in drawing the line between an arrest and a Terry stop.) The facts confirm our conclusion that the district court was correct in determining defendants were not arrested when they first met with the FBI outside of the apartment.

Because defendants chose to come out of the apartment, this case presents no issue on the rights of the government or of the defendants if defendants just had refused to come out.

5 . Kenny's oral statement was put in writing by a government agent; Kenny then read the written statement back to the agent and then signed the form.

6 . Teller LaVeme Mayfield identified both Kenny and Salathiel Thompson from a photospread as two of the four bank robbers. Mayfield could not identify Kenny at trial; but because soon after the robbery she had, from a photospread, identified both brothers as robbers, it is unlikely that she mistakenly identified Kenny instead of Salathiel at the time of the photospread identification.

7 .Defendants also claim that a mistrial should have been granted because the prosecutor shifted the burden of proof to them by stating in closing argument that defendants had the power to call the Bahamian officials as witnesses. While prosecutors may not comment about the absence of witnesses or otherwise shift the burden of proof, we have said that noting that defendants have the same subpoena powers as the government is not improper, particularly when done in response to a defendant's argument about the prosecutor’s failure to call a specific witness. See United States v. Schardar, 850 F.2d 1457, 1463 (11th Cir.1988) (prosecutor noted that defense had same subpoena powers as government). And, even if improper, any prejudice from the prosecutor’s single remark was cured by the curative instruction. United States v. Simon, 964 F.2d 1082, 1087 (11th Cir.1992) (curative instruction prevents prejudice from burden shifting argument).

Defendants also claim the district court erred in refusing to order the deposition of the Bahamian police officers. The district court's denial of a motion to take depositions of foreign witnesses is reviewed for an abuse of discretion. U.S. v. Drogoul, 1 F.3d 1546, 1552 (11th Cir.1993). And, a court does not abuse its discretion unless the parly shows that exceptional circumstances require the taking of the deposition. Id. Because each defendant and several agents testified about the events at the scene of the arrest, the defendants’ claims of coercion were fully developed. More important, defendants failed to show that the officers would not voluntarily appear in court. Under these circumstances, the district court did not abuse its discretion.