United States v. Francois

United States Court of Appeals
For the First Circuit
No. 11-2195
UNITED STATES OF AMERICA,
Appellee,
v.
ROLDY FRANCOIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Howard, Ripple,* and Lipez,
Circuit Judges.
Michelle Menken, with whom Kerry Haberlin was on brief, for
appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief for
appellee.
April 22, 2013
*
Of the Seventh Circuit, sitting by designation.
LIPEZ, Circuit Judge. Following a three-day trial, a
jury convicted defendant-appellant Roldy Francois ("Francois") on
four counts of possessing firearms as a convicted felon, one count
of possessing a firearm with an obliterated serial number, and
twelve counts stemming from his use of a stolen identity to
purchase those firearms. Following his conviction, the district
court sentenced Francois to a term of 164 months. Francois
appeals, asserting that the district court (1) abused its
discretion when it denied his motion for a third court-appointed
attorney; (2) failed to adequately warn him about the consequences
of proceeding pro se; (3) erred in instructing the jury on the use
of flight evidence; (4) abused its discretion in failing to conduct
an evidentiary hearing on his motion to suppress. Francois also
claims that his sentences on counts 10-13 exceed the statutory
maximum.
For the reasons explained below, we affirm Francois's
conviction. The government agrees, correctly, that the sentences
on counts 10-13 do exceed the statutory maximum. Hence, we remand
for resentencing.
I. Background
In reviewing Francois's conviction, we consider the facts
established at trial in the light most favorable to the jury's
verdict. United States v. Gómez-Rosario, 418 F.3d 90, 93 (1st Cir.
2005).
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A. Facts
On March 27, 2009, a young government employee named
Efrain Baez reported that a briefcase containing his social
security card and birth certificate had been stolen. For more than
a year, Baez knew nothing about the fate of his stolen documents.
Unbeknownst to Baez, less than a month after his documents were
stolen, his identity would be appropriated by Roldy Francois, a
convicted felon living in Rhode Island.
On April 23, 2009, the state of Florida issued Francois
a driver's license in Baez's name but bearing a picture of
Francois. Francois proceeded to use Baez's identity on at least
four occasions to purchase guns from Dave's Guns, a firearms dealer
in Rhode Island. When purchasing each of these firearms, Francois
identified himself as "Efrain Baez" on ATF Form 4473 and certified
that he had never been convicted of a felony.1 Evidence in the
record indicates that Francois also identified himself as Efrain
Baez when he was cited for speeding, that he used Baez's identity
1
ATF Form 4473, or a "Firearms Transfer Record," is a form
filled out in the course of an over-the-counter purchase of a
firearm. The form requires the purchaser to provide identity
information and allows the dealer to initiate a National Instant
Criminal Background Check System search. The Gun Control Act of
1968, 18 U.S.C. §§ 921-930, requires gun dealers to keep records of
the information collected by means of ATF Form 4473 for 20 years
and make them available for inspection to ATF agents upon request.
See United States v. Lewis, 517 F.3d 20, 22 n.1 (1st Cir. 2008);
Borchart Rifle Corp. v. Cook, 684 F.3d 1037, 1039 (10th Cir. 2012).
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at a firing range, and that he assumed Baez's identity in some
social situations.
Francois continued to use Baez's identity with impunity
until early 2010, when an ill-fated attempt to dupe the police put
an end to his charade. In February 2010, two of the guns Francois
had illegally purchased at Dave's Guns were stolen from his car.
On February 16, 2010, Francois went to the Providence Police
Department accompanied by his girlfriend and his private attorney
to report the theft. When he arrived at the station, Francois
identified himself as "Efrain Baez."
Unfortunately for Francois, the detective assigned to
take his report had encountered Francois in the course of
Francois's previous criminal activities. Detective Maurice Green
("Detective Green") testified at trial that he recognized Francois
"as soon as he walked in the door," but could not immediately place
him. Green also thought it was "odd" that someone would bring an
attorney with him to the station to report a crime, and his
suspicions were further aroused because "there was something very
wrong with [Francois's] entire story." Nevertheless, Green took
Francois's report, and Francois left the station without incident.
Convinced that he had encountered Francois before,
Detective Green reviewed his old case files and discovered that the
man who had identified himself as Efrain Baez was, in fact, Roldy
Francois. With this information, Detective Green immediately
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contacted Immigration and Customs Enforcement ("ICE") and the
Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF").
Law enforcement agents initially attempted to apprehend
Francois at 148 Hudson Street in Providence, the address Francois
had given Detective Green during their February 16 interview. Upon
arrival at that address, however, the police were told by
Francois's girlfriend that he had moved and left no forwarding
address. After this initial setback, law enforcement officers were
unable to locate Francois for several weeks until they received a
tip that Francois was residing at 44 Taylor Street in Providence.
Early in the morning of March 16, 2010, a team of fully
armed and uniformed Providence police officers, ATF agents, and
United States Marshals approached the three-story apartment
building at 44 Taylor Street. The Marshals knocked on the exterior
door, identified themselves as law enforcement officers, and told
the residents who answered that they were there to arrest Francois.
When Deputy Officer Brian McDonald ("Officer McDonald") showed the
residents a photograph of Francois, one resident pointed his finger
toward the ceiling and mouthed the word "up."
Taking this to mean Francois was upstairs, Officer
McDonald proceeded to the third floor, where he observed an opening
in the ceiling, which revealed a small, unfinished attic.
Suspecting that Francois was hiding in the attic, Officer McDonald
identified himself as a U.S. Marshal and announced that he had a
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warrant for the arrest of Roldy Francois, also known as Efrain
Baez. In response, Francois moved toward the opening, allowing
Officer McDonald to confirm visually that the man in the attic was
indeed Francois. Officer McDonald observed Francois lying prone in
the attic clutching a dark, semi-automatic handgun to his chest.
At that point, Francois announced "that he was not going to jail,
that he was in possession of a gun and no attempts should be made
to remove him from the attic."
Officer McDonald quickly alerted his fellow law
enforcement agents that Francios was armed, and called for a back-
up Special Weapons and Tactics ("SWAT") team. A tense, six-hour
stand-off between Francois and law enforcement ensued. Several
times during the stand-off, Francois threatened to shoot either one
of the officers or himself. Finally, late in the afternoon,
Francois surrendered peacefully and was taken into custody.
B. Pre-Trial Proceedings
A federal grand jury returned a seventeen-count
indictment, charging Francois with four counts of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2), one count of being in possession of a firearm with an
obliterated serial number in violation of 18 U.S.C. §§ 922(k) and
924(a)(1)(B), four counts of making false statements in the
purchase of firearms in violation of 18 U.S.C. §§ 922(a)(6) and
924(a)(2), four counts of possession of an identity document with
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intent to defraud the United States in violation of 18 U.S.C. §§
1028(a)(4) and (b)(1), and four counts of using an identification
document with intent to defraud the United States in violation of
18 U.S.C. §§ 1028A(a)(1).
From the outset, Francois's relationships with his court
appointed attorneys were acrimonious. The court initially
appointed Attorney Mary June Ciresi ("Ciresi") to represent
Francois, but relations between the two deteriorated quickly.
After only a few weeks of representation, Francois filed a
complaint against Ciresi with the disciplinary committee of the
Rhode Island bar, and Ciresi moved to withdraw. After a hearing,
the district court granted the motion to withdraw, and appointed
Francois a second attorney, William Dimitri ("Dimitri").
Equally unimpressed with Dimitri, Francois asked the
court in August to appoint him yet a third attorney. At the
hearing on his motion for new appointed counsel, Francois stated
that he and Dimitri were having "a problem of communication."
Francois explained further that "[t]his is my first time in the
federal system. I'm not quite understanding properly the whole
scenario of the sentencing guidelines." Francois also accused
Dimitri of focusing exclusively on "the worst case scenario."
The district court disagreed with Francois's
characterization of his relationship with Dimitri. In rejecting
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Francois's motion for a third appointed counsel, the court
reasoned:
I don't see any substantive disagreement here. It just
seems to me like he's giving you advice, it's been pretty
good advice, and you haven't really liked the advice . .
. I get the sense you think somebody else is going to
give you different advice or file different things for
you. I just don't think that's going to happen.
Two months later, Francois again moved to terminate his
relationship with Dimitri. In support of this motion, Francois
sent the court a letter addressed to Dimitri in which Francois
stated:
I [] feel like you are losing faith in this case perhaps
because you can't win this case. . . . You are proceeding
to handle my case as one that will end up as a guilty
plea. . . . You refuse to put in motions for anything. .
. . You refuse to accept my calls. . . . [Y]ou are taking
me as another body to be delivered to the federal system.
. . . [A]s of now you are fired.
At the October hearing on this second motion, Dimitri
told the court that Francois "want[ed] to kill the messenger"
rather than accept the truth of his circumstances. Dimitri
asserted that he had met with Francois at least four times, taken
many phone calls from Francois and his wife, and conducted research
on the motions that Francois had asked him to file to confirm his
initial suspicion that they had no merit. The district court again
concluded that Francois was not entitled to a third court-appointed
attorney, explaining that "Mr. Dimitri is one of the most able
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criminal defense attorneys in the State of Rhode Island . . . You
don't like what [Dimitri's] opinion indicates. But that's not a
compelling reason for me to grant your motion to change counsel."
Nevertheless, Francois continued to voice his
dissatisfaction with Dimitri and continued his attempts to file pro
se motions with the court. Shortly before jury impanelment,
Francois urged the court to allow him to proceed pro se. After
informing Francois that he had a right to represent himself, the
court told Francois that:
I have an obligation to tell you that I think that is a
terrible idea, and I think you would be making a
catastrophic mistake to -- by representing yourself in
this trial. But I can't stop you from doing it. All I
can do is tell you that I think it would be a very bad
idea, and it would be very detrimental to your interests
in receiving a fair trial in this case. . . . One way or
the other we're going to impanel the jury here this
afternoon.
After reiterating that it would be a "very bad decision" for
Francois to represent himself, the court acquiesced to Francois
proceeding pro se and appointed Dimitri to act as standby counsel.
The court advised Francois that he could inform the court at any
moment of his wish to revoke his waiver, and Dimitri would step in
as his attorney. The court also cautioned Francois that he would
receive no extensions of time, and that he would need to be
prepared for trial 20 days hence.
Francois filed several pre-trial motions pro se,
including a motion to suppress the statements he made to Detective
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Green during their interview at the Providence Police Station on
February 16, 2010, in which Francois had identified himself falsely
as Efrain Baez. Francois argued that the statements he made to
Detective Green should be suppressed on a theory that the interview
was a custodial interrogation requiring a Miranda warning. After
a hearing, the district court denied both Francois's motion to
suppress these statements and his further request for an
evidentiary hearing to determine whether or not he was objectively
reasonable in feeling he was not free to leave the interview.
C. Trial
At trial, Francois initially appeared pro se, delivering
his own opening statement and making objections to the government's
direct examination of its first witness. In fact, one of
Francois's three objections to this witness's testimony was
sustained. After beginning his cross-examination of the witness,
however, Francois decided that he could no longer continue to
represent himself and accepted representation by Dimitri. Dimitri
then stepped in and represented Francois for the rest of the
proceeding. At a later point in the trial, Francois asked the
court if he could once again proceed pro se, but the court denied
that motion.
Before the jury began its deliberations, and over the
objection of Francois, the district court provided the jury with
the following instruction on how to use evidence of flight:
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Now, intentional flight by a defendant after he is
accused of a crime for which he is now on trial may be
considered by you in light of all the other evidence in
the case. The burden is upon the Government to prove
intentional flight. Intentional flight after the
defendant is accused of a crime is not alone sufficient
to conclude that he is guilty. Flight does not create a
presumption of guilt. At most, it may provide the basis
for an inference of consciousness of guilt. But flight
may not always reflect feelings of guilt. Moreover,
feelings of guilt, which are present in many innocent
people, do not necessarily reflect actual guilt. In your
consideration of the evidence of flight, you should
consider that there may be reasons for the Defendant's
actions that are fully consistent with innocence. It is
up to you as members of the jury to determine whether or
not evidence of the intentional flight shows a
consciousness of guilt and the weight or significance to
be attached to any such evidence.
The jury returned a verdict convicting Francois on all
seventeen counts of the indictment. Following his conviction, the
district court sentenced Francois to a total of 164 months
imprisonment.
II. Francois's Sixth Amendment Claims
Francois advances two interrelated Sixth Amendment
claims. First, Francois argues that his Sixth Amendment right to
effective assistance of counsel was violated when the court denied
his motion for new appointed counsel and thereby forced Francois
into what he characterizes as a "Hobson's Choice" between
proceeding with ineffective counsel or proceeding pro se. Second,
Francois argues that his decision to waive his right to counsel was
not intelligent because the court failed to warn him about the
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consequences of proceeding pro se as required by the Supreme
Court's opinion in Faretta v. California, 422 U.S. 806 (1975).
A. Francois's Motion for New Appointed Counsel
Though the right to counsel is fundamental, the right of
an indigent criminal defendant to demand new appointed counsel is
not unlimited. "[I]n appropriate circumstances, a trial court may
force a defendant to choose between proceeding to trial with an
unwanted attorney and representing himself." United States v.
Proctor, 166 F.3d 396, 402 (1st Cir. 1999). In reviewing whether
it was appropriate for the trial court to impose that choice, we
rely on the three factors laid out in United States v. Allen, 789
F.2d 90, 92 (1st Cir. 1986): "(1) the timeliness of the motion; (2)
the adequacy of the court's inquiry into the defendant's complaint;
and (3) whether the conflict between the defendant and his counsel
was so great that it resulted in a total lack of communication
preventing an adequate defense." United States v. Hicks, 531 F.3d
49, 54-55 (1st Cir. 2008). Our review is for abuse of discretion.
United States v. Meyers, 294 F.3d 203, 207 (1st Cir. 2002).
Because Francois's motions for new appointed counsel were
all timely, we begin with the second prong of the Allen analysis --
the adequacy of the inquiry into Francois's complaints about
Dimitri. The court conducted two pre-trial hearings on Francois's
motions for new appointed counsel and issued a separate written
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ruling following each hearing2. In each hearing and in each order,
the district court carefully examined Francois's complaints and
concluded that the source of Francois's disappointment with Dimitri
was not any lack of competence on Dimitri's part, but rather was
Francois's refusal to accept Dimitri's accurate assessment of
Francois's predicament. The district court's inquiry was more than
adequate. Indeed, the district court endured Francois's repeated
complaints with commendable patience.
Moving to the third prong of the Allen inquiry, we assess
whether there is evidence on the record that the attorney-client
relationship had so deteriorated that there existed a "total lack
of communication preventing an adequate defense." Allen, 789 F.2d
at 92. The pre-trial hearing transcripts leave little doubt that
Francois did not like Dimitri's legal opinions or tactics. There
is no evidence, however, that the parties were not communicating
with each other or that Dimitri was in any way neglecting his
responsibilities. In fact, at the January 2011 hearing, both
parties made it clear that they had been communicating regularly.
Dimitri told the court that he had already met with Francois in
person "a minimum of nine to ten times" in addition to many phone
conversations. Francois estimated that they had met "four times"
in person and described several phone conversations. Indeed,
2
The court also conducted a hearing on Francois's motion to
replace his first appointed counsel, Ciresi.
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Francois's litany of complaints about Dimitri all belie the fact
that the pair were in frequent communication during the pre-trial
period.
Francois simply did not like what he was hearing during
those communications. Specifically, he did not like hearing that
the motions he wanted Dimitri to file were frivolous; that he would
almost certainly be convicted and should accept a plea bargain; and
that the "worst case scenario" sentence he could receive if
convicted would be severe. In other words, Francois's complaints
reflect his disdain for Dimitri's advice, but none of Francois's
complaints indicate that the two were so unable to communicate that
Dimitri could not present an "adequate defense" on Francois's
behalf. See United States v. Pierce, 60 F.3d 886, 891 (1st Cir.
1995) (finding no irreversible breakdown where defendant and
attorney had "some appreciation for the other's opinions and
sensibilities"); United States v. Machor, 879 F.2d 945, 952 (1st
Cir. 1989) (noting that in reviewing the third prong of the Allen
analysis, "one should bear in mind that the right to counsel does
not involve the right to a 'meaningful relationship' between an
accused and his counsel") (quoting Morris v. Slappy, 461 U.S. 1, 14
(1983)).
For these reasons, we conclude that the district court
did not abuse its discretion in denying Francois's motions to
replace Dimitri with new appointed counsel.
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B. Francois's Waiver Of His Right to Counsel
"Because of the disadvantages to a defendant that inure
from pro se representation, a defendant must 'knowingly and
intelligently' waive his right to counsel before he may be
permitted to proceed pro se." United States v. Kneeland, 148 F.3d
6, 11 (1st Cir. 1998) (quoting Johnson v. Zerbst, 304 U.S. 458,
464-65 (1938)). As such, when a defendant seeks to proceed pro se,
the trial judge must determine whether the defendant's waiver is
"intelligent and competent." Proctor, 166 F.3d at 402. In
discharging this responsibility, the trial judge must keep in mind
the strong presumption against waiver and "'investigate as long and
as thoroughly as the circumstances of the case before him demand.'"
Id. (quoting Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948)).
As part of the inquiry into whether the defendant's waiver is
intelligent, the trial judge must warn the defendant "of the
dangers and disadvantages of self-representation, so that the
record will establish that '[the defendant] knows what he is doing
and his choice is made with eyes open.'"Id. at 401 (quoting
Faretta, 422 U.S. at 835); see also Maynard v. Meachum, 545 F.2d
273, 279 (1st Cir. 1976) ("[T]he accused should have a general
appreciation of the seriousness of the charge and of the penalties
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he may be exposed to before deciding to take a chance on his own
skill.").3
Francois alleges that his decision to proceed pro se was
not made "intelligently" because the court failed to adequately
warn him of the dangers of proceeding pro se. Indeed, the
government conceded at oral argument that "ideally" the court would
have been more detailed in its warning. Although the court did
tell Francois that self-representation would be a "terrible idea"
and a "catastrophic mistake," the court did not go beyond these
dire generalizations to give a specific example of the consequences
of self-representation that might enhance a layman's understanding
of the significance of the decision to proceed without counsel.
For example, the court did not explain that the defendant might
have defenses that only a lawyer would appreciate. Phrases like
"catastrophic mistake" do not convey in concrete terms the
sentencing range Francois would likely face if he were convicted,
and the judge did not explain that he could not give advice or
guidance during the trial.
Francois's argument fails to appreciate, however, that
even where the court's Faretta warning is less thorough than it
might be, we may nevertheless affirm a district court's decision to
allow a defendant to proceed pro se if "the record amply supports
3
This warning is sometimes called a "Faretta warning" or a
"Faretta inquiry" after the Supreme Court's opinion in Faretta v.
California, 422 U.S. 806 (1975).
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the lower court's conclusion that [the defendant] was fully aware
of the disadvantages he would face as a pro se defendant."
Kneeland, 148 F.3d at 12 (considering defendant's background as a
disbarred attorney and his conduct at trial in affirming that
defendant's waiver of his right to counsel was intelligently made);
see also United States v. LaBare, 191 F.3d 60, 68 (1st Cir. 1999)
(considering defendant's experience as a defendant in previous
criminal trials as a factor indicating his decision to proceed pro
se was intelligently made); Maynard, 545 F.2d at 277 (determining
that "the absence of explicit bench warnings or a colloquy on the
record" does not compel a conclusion that defendant's waiver was
invalid).
We are satisfied on this record that Francois understood
the trial process and was fully aware of the gravity of the charges
facing him. Throughout the lengthy pre-trial proceedings, Francois
was actively involved in preparing for his own defense. At the
various hearings on his many pre-trial motions, the court engaged
in several lengthy discussions with Francois. During each of these
discussions, Francois was lucid, articulate, and engaged.
Moreover, the arguments Francois made on his own behalf demonstrate
that he had conducted extensive legal research of his own accord
and was fully aware of the nature of the charges against him.
Furthermore, while the court did not explicitly advise
Francois of the consequences he would face if convicted, Francois
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cannot claim that he was ignorant of the potential punishment he
faced. The record of the pre-trial proceedings clearly shows that
Francois received advice regarding potential sentences from
Dimitri. Indeed, Francois's distress at Dimitri's assessment of
the "worst case scenario" seems to have been a significant source
of his dissatisfaction with Dimitri. Moreover, the court did
explain to Francois that the federal sentencing calculations were
complicated and reiterated several times to Francois that it was
critical that he give careful consideration to his attorney's
assessment of the possible sentences he could face, rather than
merely attacking his attorney for being the messenger of bad news.
For these reasons, we conclude that Francois's waiver of
his right to counsel was "intelligent and knowing" and the district
court did not err in allowing him to proceed pro se.
III. Francois's Additional Challenges to His Conviction
Francois advances two additional arguments: that the
district court abused its discretion in giving the jury a
consciousness-of-flight instruction, and that the district court
abused its discretion in denying an evidentiary hearing on
Francois's pro se motion to suppress the statements he made to
Detective Green in their initial encounter at the police station.
We consider these arguments in turn.
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A. Flight Instruction
"Given an adequate factual predicate . . . evidence of a
criminal defendant's flight is generally thought to be probative of
his or her consciousness of guilt." United States v. Benedetti, 433
F.3d 111, 116 (1st Cir. 2005). Where such an "adequate factual
predicate exists," the district court may instruct the jury that
evidence of flight may indicate a defendant's consciousness of
guilt. See United States v. Camilo Montoya, 917 F.2d 680, 683 (1st
Cir. 1990); United States v. Hyson, 721 F.2d 856, 864-65 (1st Cir.
1983). Our review of the trial court's decision to do so is
deferential, and "[a] district court is afforded considerable
leeway when determining whether evidence of a defendant's flight is
accompanied by a sufficient factual predicate." Bendetti, 433 F.3d
at 116.
Francois's claim that there was an inadequate factual
predicate for the flight instruction borders on the frivolous. The
government presented an abundance of evidence supporting the
inference that Francois fled to the attic because he was conscious
of his own guilt. On the day of his arrest, Francois knew that the
police were looking for him because -- by his own admission -– he
knew that Detective Green had recognized him when he used a stolen
identity to report the theft of his illegally purchased guns.
Within days of his interview with Detective Green, Francois had
packed his belongings and left the apartment where he had been
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living with no forwarding address. When a fully uniformed and
armed team of officers finally found Francois at 44 Park Street and
announced their intent to arrest him, the Marshals discovered him
lying prone with a semi-automatic handgun in a small, unfinished
attic that was accessible only by standing on a chair and hoisting
oneself through a hole in the ceiling. Such efforts at concealment
and evasion are tantamount to flight for the purpose of
consciousness-of-guilt instructions. See United States v. Meadows,
571 F.3d 131, 146 (1st Cir. 2009) (upholding admission of
defendant's flight attempt during a traffic stop because "the fact
that [defendant]'s flight was neither successful nor lengthy is
immaterial to the fact that he chose to flee"); see also United
States v. Wright, 392 F.3d 1269, 1277 (11th Cir. 2004) ("[E]vidence
of resisting arrest is probative of [the defendant]'s consciousness
of guilt."); United States v. Pallais, 921 F.2d 684, 689-90 (7th
Cir. 1990) (finding testimony indicating that when police sought to
arrest defendant in his home he hid from them in a crawlspace was
admissible to show consciousness of guilt).
B. The Court's Denial of an Evidentiary Hearing on Francois's
Motion to Suppress
Francois's argument that the court should have conducted
an evidentiary hearing on his motion to suppress is similarly
hopeless. "A criminal defendant does not have a presumptive right
to an evidentiary hearing on a motion to suppress." United States
v. D'Andrea, 648 F.3d 1, 5 (1st Cir. 2011). Rather, "[a] hearing
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is required only if the movant makes a sufficient threshold showing
that material facts are in doubt or dispute, and that such facts
cannot reliably be resolved on a paper record. Most importantly,
the defendant must show that there are factual disputes which, if
resolved in his favor, would entitle him to the requested relief."
United States v. Staula, 80 F.3d 596, 603 (1st Cir. 1996)
(citations omitted). Our review is for abuse of discretion.
United States v. Farlow, 681 F.3d 15, 18 (1st Cir. 2012).
Arguing that he should have been granted an evidentiary
hearing on his motion to suppress the statements he made to
Detective Green during their February 16 interview, Francois claims
that there was a factual dispute over whether Detective Green
separated Francois and his girlfriend at some point during their
interview.4 Under Francois's theory, resolving this factual
dispute in his favor would compel the court to conclude that he was
objectively reasonable in believing he was not free to end his
interview with Detective Green and thus was in custody for Miranda
purposes. See Stansbury v. California, 511 U.S. 318, 323 (1994)
(whether or not custody exists for Miranda purposes "depends on the
objective circumstances of the interrogation, not on the subjective
4
In his brief, Francois claims that the government also
disputes the fact that Detective Green spoke to his attorney in the
hallway while Francois remained in the interview room. As the
government assented to this fact during the suppression hearing and
assents to it again on appeal, it is not actually in dispute. Even
if it were it is not material on the facts of this case.
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views harbored by either the interrogating officers or the person
being questioned").
Unfortunately for Francois, his argument is a non-
starter. Even if this factual dispute were resolved in his favor,
he would still have been objectively unreasonable in believing he
was in custody. Francois came to the police station on February 16
of his own volition to report that he was the victim of a crime.
He was not physically restrained nor told that he was not free to
leave. See United States v. Infante, 701 F.3d 386, 396 (1st Cir.
2012) ("[W]hether an individual is in Miranda custody depends on
whether there is a 'restraint on freedom of movement of the degree
associated with a formal arrest.'" (quoting Maryland v. Shatzer,
130 S. Ct. 1213, 1224 (2010))). He was never questioned without
his attorney present, and he was never yelled at, threatened, or
badgered. See United States v. Guerrier, 669 F.3d 1, 6 (1st Cir.
2004) (noting that the fact that "[n]o one screamed at [defendant],
badgered him for answers, or menaced him in any way" indicated that
interaction was not a custodial interrogation). At the conclusion
of the interview, Francois casually left the police station a free
man. In sum, this scenario does not even come close to the type of
custodial interrogation that we have found to require a Miranda
warning. Adding a private interview between Detective Green and
Francois's girlfriend to the mix does not change that outcome.
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The district court did not abuse its discretion in
declining to grant an evidentiary hearing on his motion to
suppress.
IV. Sentencing
Francois argues and the government concedes that his
sentence on Counts 10-13 of the indictment was plainly erroneous
because the court used facts not found by the jury to impose a
sentence greater than the one-year statutory maximum provided in 18
U.S.C. § 1028(b)(6). See Cunningham v. California, 549 U.S. 270,
274-75 (2007) ("[T]he Federal Constitution's jury-trial guarantee
proscribes a sentencing scheme that allows a judge to impose a
sentence above the statutory maximum based on a fact . . . not
found by a jury or admitted by the defendant.").
For his convictions on Counts 10-13, the court sentenced
Francois to 140 months under 18 U.S.C. § 1028(b)(1), which requires
both a conviction under 18 U.S.C. § 1028(a) and a jury finding that
the violation involved the "production or transfer" of a false
identity document.5 But in this case, both the indictment and the
jury instructions asked the jury to determine only whether Francois
had "possessed" a false identity document with intent to defraud,
5
Counts 10-13 of the indictment charged Francois with
violating 18 U.S.C. § 1028(a)(4), which provides that anyone
"knowingly possess[ing] an identification document . . . or a false
identification document, with the intent such document or feature
be used to defraud the United States . . . shall be punished as
provided in subsection b of this section."
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not whether he had produced or transferred that identity document.
As such, we agree with the parties that imposing an enhanced
sentence under Section 1028(b)(1) was error. The statutory maximum
for these counts should have been the one-year statutory maximum
provided in Section 1028(b)(6), a catchall which applies to
violations of 18 U.S.C. § 1028(a)(4) where the jury makes no
additional findings that special circumstances were present.
The consequences of this error are significant. A brief
review of the "sentencing architecture" of Francois's sentence
demonstrates why vacating the sentence on Counts 10-13 will
undermine the entire sentencing structure crafted by the district
court. Francois was sentenced to concurrent sentences of 140
months each on Counts 10-13, 120 months each on Counts 1-4 and 6-9,
and 60 months on Count 5. He was also sentenced to 24 months each
on Counts 14-17, to run concurrently with each other but
consecutively with his sentences on Counts 1-13. In other words,
his sentence on Counts 14-17 required him to serve 24 months on top
of the longest term imposed for Counts 1-13 -- which was the 140
months for Counts 10-13 at issue here –- for a total of 164 months.
Francois's 140-month sentence on Counts 10-13 was thus
central to the district court's calculation of Francois's overall
sentencing package. As such, we conclude that correcting this
error requires us to vacate his entire sentence and remand for
complete re-sentencing. See United States v. García-Ortiz, 657
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F.3d 25, 31 (1st Cir. 2011) ("When a defendant successfully
challenges one of several interdependent sentences, the proper
course often is to remand for resentencing on the other (non-
vacated) counts."); United States v. Pimienta-Redondo, 874 F.2d 9,
14 (1st Cir. 1989) (en banc) ("[W]hen a defendant is found guilty
on a multicount indictment . . . [, and] the conviction on one
or more of the component counts is vacated, common sense dictates
that the judge should be free to review the efficacy of what
remains in light of the original plan, and to reconstruct the
sentencing architecture upon remand."); see also United States v.
Melvin, 27 F.3d 710, 712 (1st Cir. 1994) (noting that the precedent
in this Circuit establishes that "an appellate ruling invalidating
a sentence, or reversing on some, but not all, counts of an
indictment may implicate the trial judge's comprehensive,
interdependent imposition of a penalty and thus require
resentencing on all counts"). We make no judgment on the
appropriate outcome of the re-sentencing.
V. Conclusion
For the reasons explained above, we affirm Francois's
conviction, but vacate his original sentence and remand to the
district court for re-sentencing on all seventeen counts.
So ordered.
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