United States v. Artis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4407
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOBIAS VONDREA ARTIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard, Senior
District Judge. (5:05-cr-00296)
Submitted: January 2, 2008 Decided: March 10, 2008
Before WILLIAMS, Chief Judge, SHEDD, Circuit Judge, and Liam
O’GRADY, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Joshua W. Willey, Jr., MILLS & WILLEY, New Bern, North Carolina,
for Appellant. George E. B. Holding, United States Attorney, Anne
M. Hayes, Banumathi Rangarajan, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jobias Vondrea Artis was indicted by a federal grand jury on
four counts including: conspiracy to commit armed bank robbery, in
violation of 18 U.S.C. § 371 (count one); receipt and possession of
stolen bank monies, in violation of 18 U.S.C. § 2113(c)(count two);
aiding and abetting an armed bank robbery in violation of 18 U.S.C.
§§ 2113(a), 2113(d) and 2(count three); and aiding and abetting the
use and carrying of a firearm during and in relation to a crime of
violence, and possession of a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A) and 2 (count
four). Thereafter, Artis moved to suppress the statements made by
him on August 17, 2005, during two separate interviews at the
Goldsboro Police Department. The district court adopted the
recommendation of the magistrate judge and denied the Defendant’s
motion to suppress, finding no error in the magistrate judge’s
decision, which was based largely on credibility assessments.
Finding that Artis’ objections deal exclusively with the
credibility determinations of the district court in which we find
no error, we affirm.
I.
On August 17, 2005, officers of the Goldsboro Police
Department were dispatched to a bank robbery in progress at the
Branch Banking and Trust (“BB&T”) on West Grantham Street in
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Goldsboro, NC. The officers were notified that the suspect may have
been driving a gray Dodge Magnum vehicle. The officers were also
given a physical description of Artis, and were informed that he
may have been involved in the robbery in some way.
Later in the same day, the investigating officers were eating
lunch when they observed a Dodge Magnum pull into the parking lot
behind the restaurant where they were sitting and park directly in
front of a nearby Radio Shack. Detective David Cloutier entered the
Radio Shack and observed Artis in the front of the store. At this
time, Detective Cloutier asked Artis if he would step outside of
the store and speak with him, which Artis agreed to do. During this
discussion, Artis was informed that the money stolen from the BB&T
could be recorded and traced. In response, Artis, without
hesitation, pulled a large sum of money out of his pocket and
handed it to Detective Cloutier. In addition, Artis volunteered
that he had several thousand dollars at his residence that were
given to him by co-defendant, Warren Baker. Artis offered to
accompany the officers to his residence in order to retrieve these
proceeds.
During the progress of this conversation, Investigator Chad
Calloway of the Goldsboro Police Department arrived at the Radio
Shack. Calloway asked Artis if he would be willing to make a
written statement at the police station and he indicated that he
would be willing to do so. After agreeing to make a statement,
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Artis requested to drive to his residence in his own vehicle to
retrieve the money. The officers informed him that it was
preferable that he accompany them in their unmarked police vehicle,
rather than drive his own vehicle to his residence. Nonetheless,
Artis was advised at this time that he was not under arrest, nor
was he placed in any sort of physical restraints. With the
understanding that his compliance was entirely voluntary, Artis
agreed to ride with the officers to his residence and retrieve the
money given to him by Baker. Before arriving at his residence, the
officers read a form to Artis, which he signed, acknowledging that
he consented to the search of his home. At his home, Artis
retrieved approximately $16,000.00 and handed it over to the
officers.
At this time, Artis was driven to the Goldsboro Police Station
with no physical restraints imposed upon him. Artis was again
advised that he was not under arrest and that his cooperation in
the matter was appreciated. When he arrived at the police station,
Artis was duly informed that he was free to leave before being
interviewed by Investigator Calloway. Artis was not advised of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966), prior to this
interview.
Following Investigator Calloway’s interview with Artis, he
interviewed Artis’ co-defendant Varn, and became increasingly
concerned with the various discrepancies between the two
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statements. Based on these concerns, Investigator Calloway decided
to interview Artis for a second time, informing Artis that he was
under arrest before commencing the interview. Following the
effectuation of his arrest, Artis was first advised of his Miranda
rights. Artis was provided with a form explaining his Miranda
rights, which listed his rights in a series of bullet points. The
form was read line-by-line to Artis, and he was instructed after
each bullet point to indicate whether or not he understood this
right. If he understood, Artis was verbally instructed to say yes
or write yes and initial after the bullet corresponding to the
right on the waiver form. Following this procedure, Artis was
informed of all of his Miranda rights and indicated that he
understood all of his rights, by verbally answering yes, writing
yes, and initialing after each yes. Artis agreed to waive his
Miranda rights at this time and was interviewed for the second
time.
The statement that resulted from his second interview was
typed and shown to Artis, following which he read and signed the
statement. Artis did not indicate that he was unable to read the
statement or needed additional clarification.
II.
Artis’ first claim on appeal that his statement was taken in
violation of his Miranda rights, restates the argument raised and
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rejected by the district court at the suppression hearing. When a
suppression motion has been denied, we review the evidence in the
light most favorable to the Government. See United States v. Han,
74 F.3d 537, 540 (4th Cir. 1996) (noting that the evidence must be
construed in the manner most favorable to the prevailing party
below). We review the district court’s factual findings underlying
the adjudication of a motion to suppress for clear error, and the
district court’s legal determinations de novo. United States v.
Grossman, 400 F.3d 212, 216 (4th Cir. 2005).
Artis’ challenge to the denial of his motion to suppress rests
primarily on his position that the district court erred in reaching
its credibility determinations. We have reviewed the transcript of
the suppression hearing and find that it fully supports the
findings of the magistrate judge in regard to the credibility of
witnesses, including Artis, Detective Cloutier, and Investigator
Calloway. The reviewing court must give due regard to the
opportunity of a trial court to judge the credibility of witnesses.
Fed. R. Civ. P. 52(a); see also Columbus-America Discovery Group v.
Atlantic Mut. Ins. Co., 56 F.3d 556, 567 (4th Cir. 1995)(absent
extraordinary circumstances, the court does not review the
factfinder’s credibility determinations); see also United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Considering that the
factual issues involved in a motion to suppress are reviewed for
clear error, and that we have found that the district court’s
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credibility determinations are not clearly erroneous, Artis’ appeal
regarding his motion to suppress fails.
III.
Artis also challenges the district court’s imposition of a
sentencing enhancement, subsequent to a jury trial in which the
jury found him guilty of Counts I, III, and IV of the indictment.
The sentencing enhancement imposed by the district court, pursuant
to United States Sentencing Guidelines Section U.S.S.G. § 3B1.1(c),
provides for a two-level enhancement where the defendant is an
organizer or leader in criminal activity. U.S.S.G. § 3B1.1(c). We
review sentences for abuse of discretion. Gall v. United States,
128 S. Ct. 586 (2007). A district court’s determination of a
defendant’s role in the offense is a factual finding, reviewed for
clear error. United States v. Jones, 356 F.3d 529, 538 (4th Cir.
2004).
We find the facts wholly sufficient for the district court to
find a two-level enhancement for an aggravating role in the
offense. The district court found that Artis’ co-defendants were
credible witnesses and adopted their statement of events to find
that Artis played a leadership role in these criminal activities
and that a two-level enhancement was warranted in establishing his
advisory guideline sentencing range. Again, we will not second
guess the credibility assessments of a district court, nor will we
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set aside factual determinations unless they are clearly erroneous.
Id. Similarly, “the credibility of a testifying co-conspirator is
for a sentencing judge to assess.” United States v. Fisher, 58 F.3d
96, 100 (4th Cir. 1995). The record supports the conclusion of the
district court and forecloses the possibility of clear error. We
conclude that the district court properly applied the enhancement
in calculating Artis’ advisory guideline range and imposed a
sentence that was within that range. Accordingly, the district
court’s sentence was not an abuse of discretion and we affirm the
district court’s imposition of a two level enhancement under
U.S.S.G. § 3B1.1.
IV.
In conclusion, we find that the district court was not clearly
erroneous in denying Artis’ motion to suppress and in applying the
appropriate sentencing enhancement. As such, we affirm Artis’
conviction. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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