United States v. Bird

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4806
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN DOUGLAS BIRD, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:09-cr-00015-LHT-DLH-1)
Argued: December 10, 2010 Decided: January 31, 2011
Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and KEENAN, Circuit Judge.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Associate Justice O’Connor and Chief Judge
Traxler joined.
ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Donald David Gast, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee. ON BRIEF: Claire J.
Rauscher, Executive Director, Angela Parrot, Assistant Federal
Defender, Fredilyn Sison, Assistant Federal Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Edward R. Ryan, United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
KEENAN, Circuit Judge:
John Douglas Bird, Jr., was convicted of five offenses
relating to the shooting of Merony George Shell on the
reservation of the Eastern Band of Cherokee Indians in North
Carolina. A jury found Bird guilty of attempted murder, in
violation of 18 U.S.C. §§ 1113 and 1153; assault with the intent
to commit murder, in violation of 18 §§ U.S.C. 113(a)(1) and
1153; assault with a dangerous weapon, in violation of 18 U.S.C
§§ 133(a)(3) and 1153; assault resulting in serious bodily
injury, in violation of 18 §§ U.S.C. 113(a)(6) and 1153; and use
of a firearm in a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii).
On appeal, Bird challenges the district court’s denial of
his motion to suppress statements he made to law enforcement
officers after his arrest. Bird also argues that his
convictions and sentences for attempted murder and assault with
the intent to commit murder constitute multiple punishments for
the same offense, in violation of his constitutional protection
against being placed in double jeopardy. For the following
reasons, we affirm Bird’s convictions and sentences.
I.
On December 25, 2008, Shell was walking in the woods when
he encountered Bird. According to Shell, Bird was holding a
3
rifle and stated that he was “going to shoot” Shell. Shell
responded, “You’ve got the gun, you might as well kill me.”
Bird discharged the rifle, shooting Shell in the face and the
arm. Shell suffered serious injuries as a result of the
shooting.
After Bird was arrested and taken into custody, he was
interviewed by William Eugene Owl, an investigator for the
Cherokee Indian Police Department (Detective Owl). Before the
interview began, Detective Owl advised Bird of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Bird stated that he
understood those rights and agreed to talk with Detective Owl.
As the interview began, Bird vomited. Bird informed
Detective Owl that his “stomach was messed up,” and that he had
suffered from this “condition” for “a couple years.” Bird also
stated that he drank a “couple of beers every morning to make
his stomach feel better.”
During the interview, Bird denied any involvement with the
shooting. When Detective Owl asked Bird if he would be willing
to take a polygraph test, Bird responded, “Yes, let’s do it,
because I didn’t have anything to do with [the shooting of
Shell].” When Bird asked whether he would be released from
custody if he “pass[ed]” the polygraph test, Detective Owl
replied, “We [will] have to wait and see.”
4
The next day, Detective Owl arrived at the detention center
to transport Bird to the office where the polygraph test was to
be administered. At that time, Detective Owl observed Bird
vomiting. During the one-hour drive to the office, Bird vomited
at least two more times.
The polygraph test was administered by Christopher J. Smith
(Agent Smith), an assistant special agent with the North
Carolina State Bureau of Investigation. Before starting the
test, Agent Smith asked Detective Owl and another officer about
Bird’s physical condition. The officers informed Agent Smith
that they thought “some” of Bird’s nausea may have been related
to alcohol withdrawal, but they also stated that Bird was
nervous and previously had vomited when speaking with law
enforcement officers. 1
Agent Smith began his conversation with Bird by advising
him of his Miranda rights. Bird indicated that he understood
those rights and agreed to waive them. The form that Bird
reviewed and signed was entitled, “Polygraph Adult Advice of
Rights,” and included a statement that he agreed “to answer
truthfully all questions asked (a) during the interviews
conducted before and after the time I am attached to the
1
The evidence did not establish whether Bird suffered from
alcohol withdrawal at the time of his arrest and later
interrogation.
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polygraph and (b) during the time I am attached to the
polygraph.”
In preliminary questioning conducted before the polygraph
test, Agent Smith asked Bird if he “felt okay” and offered him
crackers and water to “settle his stomach.” Although the record
does not indicate whether Bird accepted Agent Smith’s offer,
Bird stated that he “felt a little bit better.” Agent Smith
concluded that although Bird was “a little uncomfortable,” he
“seemed to be fine.” While Agent Smith administered the
polygraph test, Bird did not vomit.
At the end of the 90-minute polygraph test, Agent Smith
informed Bird that he had failed the test. At that time, Bird
admitted that he had shot Shell and provided some general
information about the shooting.
Shortly thereafter, Detective Owl conducted a brief
interview with Bird but did not repeat the Miranda warnings.
Bird admitted to Detective Owl that he shot Shell “[s]omewhere
in the mountains.” However, Bird maintained that the shooting
was a “mistake” and was not intentional.
Before trial, Bird filed a motion to suppress the
statements that he made to Agent Smith and Detective Owl. After
a hearing, the district court denied the motion, and the case
proceeded to a jury trial. During trial, the district court
admitted these statements into evidence.
6
The jury found Bird guilty of all five charges. The
district court imposed a total sentence of 330 months’
imprisonment for the five offenses.
II.
Bird first argues that the district court erred in denying
his motion to suppress the statements he made to Agent Smith and
Detective Owl. Bird asserts that his waiver of rights was not
voluntarily, knowingly, or intelligently made.
In considering a district court’s ruling on a motion to
suppress, we review the district court’s legal conclusions de
novo and its factual findings for clear error. United States v.
Cardwell, 433 F.3d 378, 388 (4th Cir. 2005). The district court
in the present case denied the motion to suppress summarily
without making factual findings.
Established principles guide our review of the district
court’s denial of Bird’s suppression motion. A defendant’s
incriminating statements made during a custodial interrogation
will be suppressed unless law enforcement officers advise the
defendant of his Miranda rights and the defendant properly
waives those rights. See Miranda, 384 U.S. at 444. In the
present case, the parties do not dispute that Bird was in
custody during the post-polygraph interrogation, or that Bird
was advised of his Miranda rights.
7
In determining the validity of a defendant’s waiver of
Miranda rights, we examine the “totality of the circumstances”
of the interrogation, including the defendant’s characteristics,
the interview environment, and the details of the interrogation.
United States v. Cristobal, 293 F.3d 134, 140 (4th Cir. 2002).
When reviewing these circumstances, we primarily consider two
factors. First, we consider whether the defendant voluntarily
relinquished his rights in a free and deliberate manner, without
intimidation, coercion, or deception by law enforcement
officers. Cardwell, 433 F.3d at 389; Cristobal, 293 F.3d at
140. The critical question under this factor is whether the
defendant’s will has been overborne or his capacity for self-
determination critically impaired because of coercive police
conduct. Cardwell, 433 F.3d at 389; Cristobal, 293 F.3d at 140.
Second, we consider whether the defendant waived his rights
knowingly and intelligently, fully aware of the nature of the
rights being abandoned and the consequences of waiving them.
Cardwell, 433 F.3d at 389; Cristobal, 293 F.3d at 140.
Bird argues that he was coerced by Detective Owl to waive
his Miranda rights and submit to a polygraph test, because
Detective Owl knew that Bird was suffering from alcohol
withdrawal and would “do anything” to be released from custody.
According to Bird, Detective Owl improperly induced Bird to
waive his Miranda rights and take the polygraph test by leaving
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open the possibility that if he “passed” the test, he might be
released from custody. We disagree with Bird’s arguments and
conclude that, under the totality of the circumstances, Bird has
failed to demonstrate any coercive conduct that would render his
waiver of rights involuntary. 2
The evidence did not show that Detective Owl, or any other
law enforcement officer, improperly used Bird’s physical
condition and possible alcohol dependency to induce him to waive
his Miranda rights and take the polygraph test. Rather, the
record demonstrates that Bird agreed to take the polygraph test
to show that “[he] didn’t have anything to do with [the shooting
of Shell].” After agreeing to waive his Miranda rights and take
the polygraph test, Bird asked Detective Owl whether he would be
released from custody if he “pass[ed]” the test. Detective
Owl’s response, that Bird would “have to wait and see,” was
inconclusive and did not impair Bird’s capacity for self-
determination. Moreover, there is no evidence of coercive
conduct by Agent Smith or Detective Owl. We conclude,
therefore, that Bird’s will was not overborne, and that his
waiver of Miranda rights was voluntary.
2
Bird’s argument that his physical condition affected the
results of the polygraph test is not relevant to the issue
whether his waiver of rights was voluntary. Therefore, we do
not address that argument.
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Bird argues, nevertheless, that based on his physical
condition at the time he waived his Miranda rights, his waiver
was not knowingly or intelligently made. At oral argument in
this case, Bird’s counsel acknowledged that Bird effectively
asks this court to hold, as a matter of law, that a defendant
suffering from alcohol withdrawal is unable to make a knowing
and intelligent waiver of Miranda rights. We decline Bird’s
invitation, because the determination whether a defendant has
waived his Miranda rights must be based on the totality of the
circumstances surrounding the particular interrogation at issue.
See Moran v. Burbine, 475 U.S. 412, 421 (1986); Cristobal, 293
F.3d at 140. A uniform rule that a defendant exhibiting
symptoms of alcohol withdrawal cannot knowingly waive his
Miranda rights would violate this required individual
assessment.
In the present case, although Bird had vomited several
times before agreeing to waive his Miranda rights and sign the
waiver form, there is no evidence indicating that his nausea
impaired his mental capacity to understand his rights or the
effect of his waiver. Bird’s statement to Detective Owl that
Bird expected that the polygraph test results would exonerate
him is evidence that he made a knowing choice to participate in
the test. Additionally, when Agent Smith questioned Bird about
his physical condition, Bird told Agent Smith that he “felt
10
better.” Based on these statements by Bird and the lack of any
evidence that Bird’s nausea impaired his mental faculties, we
conclude that Bird knowingly and intelligently waived his
Miranda rights. Accordingly, we hold that the totality of the
circumstances supports Bird’s waiver under Miranda, and that the
district court did not err in denying Bird’s suppression motion. 3
III.
Bird next argues that his convictions and sentences for
attempted murder and for assault with the intent to commit
murder constitute multiple punishments for the same offense, in
violation of his constitutional protection against being placed
in double jeopardy. Because Bird did not assert this defense in
the district court, we review his argument on appeal for plain
error. United States v. Olano, 507 U.S. 725, 731-32, 736
(1993). To establish plain error, Bird must demonstrate that
(1) the district court erred; (2) the error was plain; (3) the
error affected Birds’ substantial rights; and (4) the error, if
3
We find no merit in Bird’s argument that Agent Smith and
Detective Owl were required to provide additional Miranda
warnings after the polygraph test ended. The waiver form
reviewed and signed by Bird before the polygraph test began
contained clear language that that the waiver applied to both
“interviews conducted before and after the time [Bird was]
attached to the polygraph,” and during the polygraph
examination.
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not corrected, would seriously affect the fairness, integrity,
or public reputation of judicial proceedings. Id.Under the Double Jeopardy Clause of the Fifth Amendment, a
person may not be “subject for the same offence to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V. This
provision protects a defendant from a second prosecution for the
same offense after acquittal, a second prosecution for the same
offense after a conviction, and multiple punishments imposed in
a single prosecution for the same offense. Jones v. Thomas, 491
U.S. 376, 381 (1989); United States v. Martin, 523 F.3d 281, 290
(4th Cir. 2008).
When examining the issue of multiple punishments for the
same offense in a single prosecution, the double jeopardy
violation alleged here, we consider the punishment that the
legislature intended for the crimes. See Jones, 491 U.S. at
381; Missouri v. Hunter, 459 U.S. 359, 366 (1983). If a
defendant’s single course of conduct violates more than one
statute, a court generally may impose multiple punishments if
the legislature authorized those punishments. Hunter, 459 U.S.
at 365; United States v. Ayala, 601 F.3d 256, 265 (4th Cir.
2010). However, it is presumed that the legislature did not
intend to authorize multiple punishments under two statutory
provisions if those provisions proscribe the “same offense.”
12
Hunter, 459 U.S. at 366 (citing Whalen v. United States, 445
U.S. 684, 691-92 (1980)).
In determining whether two provisions proscribe the same
offense, we apply the test set forth in Blockburger v. United
States, 284 U.S. 299 (1932). Ayala, 601 F.3d at 265. In
Blockburger, the Supreme Court stated that when the “same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” 284 U.S. at 304.
In applying this test, we consider exclusively the legal
elements of the different offenses, not the particular facts of
the case at issue. See Blockburger, 284 U.S. at 304; Iannelli
v. United States, 420 U.S. 770, 785 n.17 (1975); Whalen, 445
U.S. at 694 n.8; see also Ayala, 601 F.3d at 265; United States
v. Allen, 13 F.3d 105, 109 n.4 (4th Cir. 1993). If the
offenses, viewed comparatively, each require proof of at least
one different element, then the offenses are not the “same” and
multiple punishments are presumptively valid absent a clear
showing of contrary Congressional intent. Ayala, 601 F.3d at
265 (quoting United States v. Terry, 86 F.3d 353, 356 (4th Cir.
1996)). However, two different statutes are considered as
defining the “same offense” when one offense is a lesser
included offense of the other. Rutledge v. United States, 517
13
U.S. 292, 297 (1996); see, e.g., Ball v. United States, 470 U.S.
856, 861-864 (1985) (concluding that multiple prosecutions were
barred because statutes directed at “receipt” and “possession”
of a firearm amounted to the “same offense” because proof of
receipt “necessarily” included proof of possession); Whalen, 445
U.S. at 691-695 (concluding that two punishments could not be
imposed because rape and felony murder predicated on the rape
were the “same offense”); Brown v. Ohio, 432 U.S. 161, 167-168
(1977) (confirming conclusion that offense of “joyriding” was a
lesser included offense of auto theft).
In the context of these principles, we consider the
elements of the charged offenses at issue here, assault with the
intent to commit murder, punishable under 18 U.S.C. § 113(a),
and attempted murder, punishable under 18 U.S.C. § 1113. The
elements of assault with the intent to commit murder are: 1)
assault; and 2) the specific intent to commit murder. See
United States v. Perez, 43 F.3d 1131, 1137 (7th Cir. 1994).
We observe that the crime of “assault” is not defined under
federal statutory law, and that this circuit has not addressed
the required elements of a criminal assault. We have
recognized, however, that other courts uniformly have held that
federal statutes criminalizing particular types of assaults
incorporate the common law definition of “assault.” See United
States v. Passaro, 577 F.3d 207, 217-18 (4th Cir. 2009). At
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common law, an assault is committed when a person willfully
attempts to inflict injury on another, or threatens to inflict
injury on another, coupled with an apparent present ability to
do so, causing a reasonable apprehension of immediate bodily
harm. United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.
1976); United States v. Bell, 505 F.2d 539, 540 (7th Cir. 1974).
In the present case, the jury instructions defining “assault”
apply this common law definition.
Attempted murder, like any attempt to commit a crime, is a
separate offense from the crime intended by the attempt. See
United States v. Pratt, 351 F.3d 131, 135 (4th Cir. 2003).
Although there is no federal statutory definition of “attempt,”
we have explained that the elements of an “attempt” are:
(1) the defendant had the requisite intent to commit a
crime; (2) the defendant undertook a direct act in a
course of conduct planned to culminate in his
commission of the crime; (3) the act was substantial,
in that it was strongly corroborative of the
defendant’s criminal purpose; and (4) the act fell
short of the commission of the intended crime due to
intervening circumstances.
Id.The Supreme Court has explained that under the common law,
the conduct required to prove an “attempt” includes an “overt
act” constituting a “substantial step” toward completion of the
intended offense. United States v. Resendiz-Ponce, 549 U.S.
102, 106 (2007); see Braxton v. United States, 500 U.S. 344, 349
15
(1991). The jury instructions in the present case stated, among
other things, that proof of a “substantial step” toward the
commission of murder was required to convict Bird of attempted
murder. A separate instruction defined the term “substantial
step” as a “firm, clear, and undeniable action to accomplish”
murder.
The issue whether a defendant has engaged in a “substantial
step” is a question requiring review of the factual
circumstances of a particular case. United States v. Neal, 78
F.3d 901, 906 (4th Cir. 1996). We have explained that the
presence of certain facts provide strong corroboration of a
defendant’s criminal intent and may constitute a substantial
step toward commission of a substantive crime. Such facts
include: (1) lying in wait, searching for, or following the
contemplated victim; (2) reconnoitering the place contemplated
for the commission of the crime; (3) possession of materials to
be employed in the commission of a crime; and (4) possession or
fabrication of materials to be used in committing the crime at
or near the place chosen for its commission. Pratt, 351 F.3d at
135.
Here, Bird acknowledges that an initial comparison of the
elements of the two crimes at issue reveals that each contains
an element that the other does not. Attempted murder requires
proof of a “substantial step” toward the commission of murder,
16
while assault with the intent to commit murder requires proof of
an “assault.” Bird argues, however, that one who commits an
assault coupled with the specific intent to commit murder
necessarily takes a “substantial step” toward the commission of
murder. Thus, Bird contends that attempted murder is a lesser-
included offense of assault with intent to commit murder, and
that multiple convictions and sentences for these “same
offenses” violate double jeopardy principles.
Bird cites no authority in support of this argument, and we
observe that no federal appellate court has addressed this issue
in a published opinion. To satisfy the plain error standard of
review, however, Bird must show that the error committed by the
district court was plain under established law. See Olano, 507
U.S. at 734.
In United States v. Beasley, 495 F.3d 142, 149 (4th Cir.
2007), we explained the limited nature of plain error review.
There, we examined the timeliness of an information filed under
21 U.S.C. § 851(a) for purposes of seeking enhanced punishment
for a repeat drug offender. Id. at 145. We held that in the
absence of controlling Supreme Court or circuit precedent, we
could not say that the district court committed plain error in
holding that the information, which was filed after the jury was
selected but before it was sworn, was timely filed “before
trial” as required by the statute. Id. at 149.
17
We emphasized in Beasley that to qualify as plain error,
the error must be plain under “current law.” Id. at 149 (citing
Olano, 507 U.S. at 734). We further explained that for purposes
of plain error review, it is sufficient that an error be plain
at the time of appellate consideration. Id. at 149-150 (citing
Johnson v. United States, 520 U.S. 461, 468 (1997)).
In the case before us, there was no controlling Supreme
Court or circuit precedent on this double jeopardy issue when
Bird was sentenced by the district court, and there is no
controlling precedent on that issue today. Therefore, we cannot
conclude that the district court plainly erred under established
law in imposing convictions and sentences for both attempted
murder and assault with the intent to commit murder. See
Johnson, 520 U.S. at 468; Olano, 507 U.S. at 732; Beasley, 495
F.3d at 149-150. Accordingly, for the reasons stated, we affirm
the district court’s judgment.
AFFIRMED
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