United States v. McRae

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL VENETEZ MCRAE, Defendant-Appellant.

No. 21-13905

United States Court of Appeals, Eleventh Circuit

August 8, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 1:19-cr-00125-JRH-BKE-1 Before NEWSOM, GRANT and DUBINA, Circuit Judges.

PER CURIAM

Appellant Michael Venetez McRae appeals his convictions for possession of a firearm by a prohibited person and possession of a controlled substance, and he appeals the district court's imposition of his 235-month total sentence. McRae asserts several errors on appeal: (1) the district court lacked jurisdiction over this case because the Double Jeopardy Clause prohibited him from being federally prosecuted for the same offense conduct as that charged in a state indictment and because his speedy trial rights were violated; (2) the district court erred by denying his motion to suppress as to a firearm and his statements related thereto, based on the public safety exception, the inevitable discovery doctrine and implied consent; (3) the district court erred in permitting him to waive his right to counsel because his waiver was not knowing and voluntary; and (4) the district court erred in sentencing him under the Armed Career Criminal Act ("ACCA"). After reading the parties briefs and reviewing the record, we affirm McRae's convictions and sentence.

I.

(A) Double Jeopardy

The Double Jeopardy Clause of the Fifth Amendment protects a defendant against successive prosecutions for the same criminal offense, providing that no person may "be twice put in jeopardy of life or limb" for the same offense. U.S. Const. amend. V; United States v Baptista-Rodriguez, 17 F.3d 1354, 1360 (11th Cir. 1994).

Nevertheless, under the dual sovereignty doctrine, a defendant may be subject to successive prosecutions by two sovereigns for the violation of each of their laws if his conduct gives rise to two separate offenses. Puerto Rico v. Sanchez Valle, 579 U.S. 59, 66-67, 136 S.Ct. 1863, 1870 (2016). Thus, because the state and federal government are separate sovereigns, a prior state conviction does not preclude the federal government from prosecuting the defendant for the same conduct. See id.

Reviewing de novo McRae's double jeopardy challenge, we find no error. United States v. McIntosh, 580 F.3d 1222, 1226 (11th Cir. 2009). Because the Double Jeopardy Clause does not prohibit McRae from being federally prosecuted for the same offense conduct as that charged in a state indictment, we conclude that the district court did not lack jurisdiction over the case.

(B) Speedy Trial Rights

The Speedy Trial Act, 18 U.S.C. § 3161, et seq., prescribes deadlines and identifies causes of delay that excuse strict compliance with those deadlines. "The primary purpose of the Speedy Trial Act is to accelerate criminal trials." United States v. Varella, 692 F.2d 1352, 1359 (11th Cir. 1982). Thus, the Speedy Trial Act mandates that federal authorities must indict an incarcerated individual, or file an information, within 70 days of his arrest in connection with the offenses specified in the indictment, or from the date the defendant first appears before the court in which such charge is pending, whichever date is the latest. 18 U.S.C. § 3161(c)(1).

The Speedy Trial Act, however, excludes periods of delay arising from other proceedings involving the defendant, including delay resulting from "any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." 18 U.S.C. § 3161(h)(1)(D). It further excludes any delay arising from the district court's grant of a continuance on the ground that the ends of justice are served, provided that the district court articulates its specific findings. Id. § 3161(h)(7)(A). Further, the Act provides a non-exclusive list of factors which a judge should consider in determining whether to grant such a continuance. Id. § 3161(h)(7)(B). One factor is whether "in a case in which arrest precedes indictment, delay in the filing of the indictment is caused because the arrest occurs at a time such that it is unreasonable to expect return and filing of the indictment within the period specified ...." Id. § 3161(h)(7)(B)(iii).

We will consider whether a defendant's right to a speedy trial has been violated as a mixed question of law and fact, reviewing questions of law de novo and questions of fact under the clearly erroneous standard. United States v. Clark, 83 F.3d 1350, 1352 (11th Cir. 1996). Issues not raised in a party's initial brief on appeal are considered abandoned. United States v. Campbell, 26 F.4th 860, 865 (11th Cir. 2022) (en banc), cert. denied, 143 S.Ct. 95 (2022).

The record shows that, even if properly preserved, McRae's speedy trial argument nevertheless fails because there was no violation of his speedy trial rights between September 2019 and May 2021. All the relevant time was excluded by the need to: (i) address pending motions, including McRae's motion to suppress; (ii) continue the proceedings, due to the ongoing COVID-19 health emergency; (docs. 49, 53, 54, 55, 60, 67); (iii) address McRae's efforts to obtain replacement counsel or proceed pro se; and (iv) respond to McRae's motion to dismiss the indictment due to Double Jeopardy and speedy trial concerns. 18 U.S.C. § 3161 3161(h)(7)(A); (h)(1)(D). Further, as the district court explicitly noted, those continuances were properly granted in the interest of justice. Thus, we affirm the district court's order dismissing McRae's pretrial motions to dismiss based on alleged Double Jeopardy and speedy trial challenges.

II.

McRae contends that the district court erred by denying his motion to suppress as to the firearm and his statements related thereto, based on the public safety exception, the inevitable discovery doctrine, and implied consent from the homeowner, Labrisha Keller. The Supreme Court has established a narrow exception to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), where there is a threat to public safety or to law enforcement officers. United States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007) (citing New York v. Quarles, 467 U.S. 649, 656, 658, 104 S.Ct. 2626, 2632 (1984)). "The public safety exception allows officers to question a suspect without first Mirandizing him when necessary to protect either themselves or the general public." Id.

The inevitable discovery doctrine allows the government to introduce evidence obtained from an illegal search or other violation if there is a "reasonable probability that the evidence in question would have been discovered by lawful means." United States v. Johnson, 777 F.3d 1270, 1274 (11th Cir. 2015) (internal quotation marks omitted). The government must demonstrate that "the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct." Id. (internal quotation marks omitted). In other words, the government must show "that the police would have discovered the evidence by virtue of ordinary investigations of evidence or leads already in their possession." Id. (internal quotation marks omitted).

"An overnight guest has a reasonable expectation of privacy in a residence sufficient to establish standing." United States v. Maxi, 886 F.3d 1318, 1326 (11th Cir. 2018). The warrant requirement does not apply where the homeowner voluntarily consented to the search. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797 (1990). Consent may be nonverbal, but this consent may not be voluntary if the officers exhibited a sufficient show of force or authority that coerced the occupant to agree to the search. United States v. Ramirez-Chilel, 289 F.3d 744, 751-52 (11th Cir. 2002).

"We review a district court's denial of a motion to suppress evidence for clear error as to factual findings and de novo as to its application of the law." United States v. Watkins, 760 F.3d 1271, 1282 (11th Cir. 2014) (emphasis added). We consider the evidence in the light most favorable to the district court's judgment. Id. In reviewing the denial of a motion to suppress, we may review the entire record, including trial testimony. Newsome, 475 F.3d at 1224. Similarly, "[w]hether a person was in custody and entitled to Miranda warnings is a mixed question of law and fact; we review the district court's factual findings on the matter for clear error and its legal conclusions de novo." United States v. McDowell, 250 F.3d 1354, 1361 (11th Cir. 2001).

The record demonstrates that the officers' questions regarding the gun did not violate Miranda because the questions fit into the public safety exception. Newsome, 475 F.3d at 1224. The magistrate judge conducted a hearing on the motion to suppress and found that the officer clearly expressed concern about Keller's children having access to the gun because he reasoned that if McRae had a gun clip in his pocket, which he admitted he did, the gun was nearby. In addition, the magistrate judge properly found that the magazine should not be suppressed because the officers would have inevitably discovered it. Johnson, 777 F.3d at 1274. Furthermore, even if McRae had a reasonable expectation of privacy as an overnight guest in Keller's home, see Maxi_s886 F.3d at 1326, the record supports the magistrate judge's finding that Keller impliedly consented to the search, so there was no Fourth Amendment violation. Rodriguez, 497 U.S. at 181, 110 S.Ct. at 2797. Having obtained consent, we conclude the officers thus did not violate the Fourth Amendment, and we affirm the denial of the motion to suppress.

III.

McRae argues that the district court erred in finding that his waiver of...