United States v. Warrington

78 F.4th 1158

UNITED STATES of America, Plaintiff - Appellee, v. Edmond Carl WARRINGTON, Defendant - Appellant.

No. 22-7003

United States Court of Appeals, Tenth Circuit

FILED August 11, 2023

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:20-CR-00133-DCJ-1)

John C. Arceci, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Kyle J. Essley, Special Assistant United States Attorney (Linda A. Epperley, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.

Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.

SEYMOUR, Circuit Judge.

Edmond Carl Warrington was charged in Oklahoma state court after he engaged in sexual activity with his mentally disabled, 18-year-old adopted niece. When the U.S. Supreme Court decided McGirt v. Oklahoma, — U.S. —, 140 S. Ct. 2452, 207 L.Ed.2d 985 (2020), the federal government took over prosecution for the alleged sexual abuse. The district court denied a motion to suppress inculpatory statements Mr. Warrington made to federal agents during transport from state to federal custody. Mr. Warrington proceeded to trial, where he was convicted by a jury of three counts of sexual abuse in Indian Country and sentenced to 144 months' imprisonment on each count, to run concurrently. The court also imposed a $15,000 special assessment under the Justice for Victims of Trafficking Act of 2015 ("JVTA"), a penalty of $5,000 for each count of conviction.

There are two issues raised on appeal. First, Mr. Warrington, who was represented by counsel in the state case, asserts that the district court erred in denying his suppression motion because the agents questioned him in violation of the Sixth Amendment. But because we hold that the Sixth Amendment right to counsel had not yet attached in the federal proceeding and, in any event, Mr. Warrington voluntarily waived his right to counsel after receiving a Miranda warning, the district court did not err in denying the motion to suppress. Second, Mr. Warrington claims the court plainly erred in imposing the JVTA assessment on a per count basis instead of imposing one $5,000 penalty in the case. This is an issue of first impression for our circuit, and we conclude that the court did not commit plain error. Accordingly, we affirm.

Background

This case originated with state criminal charges in Oklahoma. Mr. Warrington, a member of the Cherokee Nation, was accused of engaging in unlawful sexual activity with his mentally disabled, 18-year-old niece-by-adoption, S.R. Specifically, Mr. Warrington was charged with rape after S.R.'s father (Mr. Warrington's brother-in-law) discovered S.R. and Mr. Warrington in a compromised position in the pastures of their adjoining rural properties, which lie within the territorial boundaries of the Muscogee (Creek) Nation.

Mr. Warrington declined to speak with state and local authorities during the state investigation and retained an attorney to represent him. The state charges were still pending when the U.S. Supreme Court decided McGirt, which held that the state of Oklahoma "lack[ed] jurisdiction to prosecute" Indian defendants for crimes occurring in Indian Country. 140 S. Ct. at 2474. McGirt also made clear that the federal government retained jurisdiction to prosecute offenses like those committed by Mr. Warrington. See id. at 2476, 2480.

Accordingly, on November 9, 2020, FBI Special Agent John Kowatch filed a federal criminal complaint against Mr. Warrington for the alleged unlawful sexual activity with S.R. After a magistrate judge issued an arrest warrant, Agent Kowatch and another agent arrested Mr. Warrington the following day when he appeared for a hearing in the state case at the Okfuskee County Courthouse.

Mr. Warrington was transported from the county courthouse to the federal courthouse in Muskogee, Oklahoma, for an initial appearance. Although Mr. Warrington's state attorney was present when the federal agents arrested him, the attorney did not specifically ask the federal agents if they intended to conduct questioning during transport. Nor did the attorney direct the federal agents not to do so.

As Mr. Warrington was placed into the transport car, the agents read him Miranda warnings and confirmed that he understood each right individually. Because he was handcuffed and unable to sign the Miranda form, Agent Kowatch noted on the form that Mr. Warrington "understood his rights and was willing to talk." Rec., vol. III at 23. During the transport, the two agents questioned Mr. Warrington and recorded the interaction. Mr. Warrington made several incriminating statements about sexual activity that had occurred between him and S.R. during the time-frame alleged.

That day, the state deferred prosecution in light of the now-federal case. Two days later, on November 12, 2020, Mr. Warrington appeared before a federal magistrate judge for an initial appearance. The following week, a federal grand jury indicted Mr. Warrington on three counts of aggravated sexual abuse in Indian country in violation of 18 U.S.C. §§ 1151, 1153, 2241(a), and 2246(2), and three counts of sexual abuse in Indian country in violation of 18 U.S.C. §§ 1151, 1153, 2242, and 2246(2).

Before trial, the government indicated that it would introduce excerpts of the audio-recorded interview as trial exhibits. In response, defense counsel moved to suppress the recordings. Counsel argued, in pertinent part, that the interview—conducted by two FBI agents while Mr. Warrington was handcuffed in the back of a law enforcement vehicle—was a custodial interrogation. And, because it occurred after Mr. Warrington already had counsel in the state case, the interrogation violated the Sixth Amendment. Although the suppression motion was untimely under Fed. R. Crim. P. 12(c)(3), the district court considered it on the merits and denied the motion. At trial, the jury convicted Mr. Warrington of three counts of sexual abuse in Indian country based on S.R. being "incapable of appraising the nature of the [sexual] conduct" charged. Rec., vol. I at 347, 349, 351.

At sentencing, the court imposed a within-guidelines range sentence of 144 months' imprisonment on each count of conviction, to run concurrently. The government then urged the court to impose a $5,000 assessment under the JVTA for each count of conviction. This was consistent with the Presentence Investigation Report ("PSR"), which stated that Mr. Warrington was subject to the JVTA and would be assessed $5,000 "per count." Rec., vol. II at 118. The court then imposed a $15,000 special assessment, $5,000 for each count of conviction.¹ Defense counsel did not object to the PSR, the government's request, or the special assessment ultimately imposed by the court.

Discussion

A. Motion to Suppress

Mr. Warrington argues that the district court erred in denying his motion to suppress because his inculpatory statements were given in response to questioning that violated his Sixth Amendment right to counsel. In reviewing a denial of a suppression motion, we review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Baez-Acuna, 54 F.3d 634, 636 (10th Cir. 1995). We consider the totality of the circumstances and view the evidence in the light most favorable to the government. United States v. Koerber, 10 F.4th 1083, 1103 (10th Cir. 2021), cert. denied, — U.S. —, 143 S. Ct. 326, 214 L.Ed.2d 145 (2022). We may affirm the denial on any ground supported by the record. United States v. White, 326 F.3d 1135, 1138 (10th Cir. 2003).

1. The Right to Counsel Had Not Attached in the Federal Proceeding

Mr. Warrington argues that, because he was represented by counsel in the state proceedings against him, the federal agents violated his Sixth Amendment rights by interviewing him during transport. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. The right to counsel attaches once "a prosecution is commenced." Rothgery v. Gillespie Cty., 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). Commencement occurs at "a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction." Id. at 213, 128 S.Ct. 2578. Once the right has "attached," the government is prohibited from deliberately seeking information from the accused on the charged offenses in the absence of defense counsel. See, e.g., United States v. Mullins, 613 F.3d 1273, 1286 (10th Cir. 2010). But the right to counsel is "offense specific" and "cannot be invoked once for all future prosecutions." McNeil, 501 U.S. at 175, 111 S.Ct. 2204. Accordingly, even when the right to counsel has attached for one crime, the government is free to question the accused with respect to other crimes for which the right has not yet attached. Mullins, 613 F.3d at 1286.

At the time Mr. Warrington talked with the federal agents on November 10, 2020, he had not yet appeared before a federal judge on the charges alleged in the federal complaint. He would not do so until two days later. As the district court found, Mr. Warrington's Sixth Amendment right to counsel had therefore not yet attached in the federal case at the time he was interviewed. Because the Constitution does not bar admission of incriminating statements relating to offenses "as to which the Sixth Amendment right ha[d] not yet attached," the court did not err in denying Mr. Warrington's motion to suppress. Maine v. Moulton, 474 U.S. 159, 180 n.16, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); see also Mullins, 613 F.3d at 1286 (where...