United States v. Brandon Ivory

Case: 09-41042 Document: 00511250930 Page: 1 Date Filed: 10/01/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 1, 2010
No. 09-41042
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRANDON D. IVORY,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:09-CR-928-1
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Brandon D. Ivory appeals his convictions for possession with intent to
distribute more than 100 kilograms of marijuana and for conspiring to do so. He
contends that the district court should have sua sponte conducted a hearing to
determine whether his confession was voluntary. See Jackson v. Denno,
378 U.S. 368 (1964) (remanding for a hearing on a confession’s voluntariness).
He concedes that review is only for plain error because he did not raise the issue
in the district court. See United States v. Guanespen-Portillo, 514 F.3d 393, 402
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-41042 Document: 00511250930 Page: 2 Date Filed: 10/01/2010
No. 09-41042
(5th Cir. 2008); United States v. Iwegbu, 6 F.3d 272, 274 (5th Cir. 1993). “Under
the plain error standard, [this court] will reverse only if (1) there is an error,
(2) the error is clear under current law, and (3) the error affects the defendant’s
substantial rights.” Guanespen-Portillo, 514 F.3d at 402. When those three
showings are made, this court has the discretion to correct the error if it has a
serious effect on the integrity, fairness, or public reputation of the judicial
proceedings. Id. at 402-403. A trial court must conduct a voluntariness hearing
on its own motion if the evidence reflects a genuine question of the voluntariness
of a confession. See Guanespen-Portillo, 514 F.3d at 402; United States v.
Renteria, 625 F.2d 1279, 1282-83 (5th Cir. 1980).
Citing United States v. Powe, 591 F.2d 833, 845-46 (D.C. Cir. 1979), Ivory
argues that his confession was involuntary because it was induced by assertions
that Ivory could help himself by confessing. A confession is not rendered
involuntary simply because a suspect is advised that “there are advantages to
cooperating.” United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1348 (5th Cir.
1994). “It is reasonable to assume that the cooperation of an arrested person
often is prompted by a desire for leniency for himself or others,” and statements
made in such circumstances are not per se involuntary. United States v.
Robertson, 582 F.2d 1356, 1368 (5th Cir. 1978). Moreover, a federal agent
testified without contradiction that the agents told Ivory that they could not
promise him anything and that he would have to talk to the United States
Attorney.
Ivory offered little more than vague allusions to the voluntariness of his
confession. He stated that he confessed only because he was tired, but the
confession itself was highly detailed, and the record does not indicate that the
interrogation was especially long, although it ended around 2:00 a.m. Ivory
offered no direct evidence of threats or inherently coercive behavior. Moreover,
he never moved to suppress the confession; rather, his lawyer affirmatively
stated there was nothing to suppress.
2
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No. 09-41042
Of slightly greater significance, Ivory testified at trial that he was not
advised of his Miranda 1 rights prior to his confession. The record does not show
that the district court made any explicit or specific finding that Ivory was
mirandized prior to confessing. However, the district court was aware of Ivory’s
testimony as well as the starkly contrasting testimony from a federal agent in
rebuttal. In addition, the court had been explicitly advised that there was no
suppression issue. Because the evidence as a whole did not clearly raise a
genuine question of voluntariness before the district court, we find no clear or
obvious error in the failure to have a voluntariness hearing. The judgment of
the district court is AFFIRMED. See Guanespen-Portillo, 514 F.3d at 403-05.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
3