Beruflich Dokumente
Kultur Dokumente
No. 14-4650
Appeal from the United States District Court for the District of
South Carolina, at Columbia.
Terry L. Wooten, Chief District
Judge. (3:13-cr-00558-TLW-1)
Argued:
Before DUNCAN
Circuit Judge.
and
DIAZ,
Decided:
Circuit
Judges,
and
February 2, 2016
DAVIS,
Senior
Affirmed
in
part,
vacated
in
part,
and
remanded
with
instructions by unpublished opinion.
Senior Judge Davis wrote
the opinion, in which Judge Duncan and Judge Diaz joined.
case
arises
from
the
conviction
of
Leland
Victor
On appeal,
Nielsen
First,
presents
two
issues
for
our
review.
he
and
for
sexual
abuse
of
minor
as
multiplicitous
in
to
the
Fort
Jackson
residence
to
investigate
the
allegations.
Nielsen was not at the residence when the agents arrived,
but some family members were present and gave consent for the
agents
to
Nielsens
enter
the
house.
mother-in-law
to
Agent
call
Michael
Nielsen
and
Stansbury
ask
him
asked
to
come
Nielsens mother-
not drawn his gun, and he was not wearing any FBI insignia.
He
told Nielsen that he was not in trouble and asked him about
B.R.s allegations.
B.R.
near
the
start
of
the
interview,
and
Agent
Agent
Waizenhofer
attempted
to
Waizenhofer
Throughout the
empathize
with
J.A. 48. 1
the
interview,
Agent
Stansbury
became
At some point
more
direct
or
agents that B.R. had performed oral sex on Nielsen but Nielsen
had not expressly admitted this.
J.A. 159.
At another point
during the interview, the agents sought help from Agent Craig
Janikowski, who was dressed in green FBI fatigues, after coming
to an impasse with Nielsen.
No more than
some
point
during
his
interaction
with
the
agents,
various sex acts with B.R., he indicated that his PTSD was to
blame for his conduct.
J.A. 4244.
The
entire
residence.
interview
took
place
in
front
of
Nielsens
that,
at
one
point,
Nielsen
Agent Waizenhofer
retrieved
bottle
J.A. 6061.
of
Nielsen
was never told that he was free to terminate the interview and
leave, and he was not provided with Miranda warnings prior to
speaking
with
the
agents.
The
interview
lasted
until
encounters
between
pretrial
motion
to
interview
with
the
Nielsen
suppress
FBI,
and
B.R.
statements
which
the
Nielsen
he
made
district
filed
during
his
court
denied
jury
charge,
following a hearing.
The
Nielsen
case
proceeded
objected
to
to
trial.
portion
Before
of
the
the
district
courts
instruction
permitted
the
government
6
to
prove
force
by
Nielsen
terms
to
run
concurrently;
and
supervised
release
for
concurrent terms of ten years for each count should Nielsen ever
be released.
suppressed
interrogation
because
without
the
they
occurred
warnings
7
during
required
under
custodial
Miranda
v.
Arizona, 384 U.S. 436 (1966), and because his statements were
not voluntary.
We disagree.
suppress
novo.
for
clear
error
and
its
legal
determinations
de
compelled
himself.
in
any
criminal
case
to
be
witness
against
suspect
interrogation
right.
Miranda,
obtained
warning
as
of
from
is
certain
means
384
inadmissible
of
U.S.
custodial
in
rights
prior
protecting
at
444.
this
In
interrogation
the
to
custodial
constitutional
general,
without
prosecutions
evidence
Miranda
case-in-chief.
United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001).
Absent formal arrest, Miranda warnings are required only
where there has been such a restriction on a persons freedom
as
to
render
him
in
custody.
Id.
(quoting
Oregon
v.
An individual is in
McCarty,
objective,
468
U.S.
looking
420,
to
440
whether
(1984)).
a
This
reasonable
inquiry
man
in
is
the
an
officer,
and
whether
there
was
any
We
also
consider
an
physical
contact
individuals
isolation
and
with
federal
agents
on
May
22,
2013.
Nielsen
was
Five or six
Agent Waizenhofer,
the agent who initiated contact with Nielsen, told Nielsen that
he was not in trouble and maintained an empathetic tone with
Nielsen throughout the interview.
Additionally, Nielsen
from
his
family.
The
interview
lasted
for
He was
three
While
not
fault
outweighed
by
the
district
circumstances
courts
that
conclusion
suggest
that
they
otherwisethe
are
small
suspect
carries
certain
coercive
aspects
due
to
the
See id.
11
We
hold
that,
viewing
the
evidence
in
the
light
most
The
agents
were
not
required
to
recite
Nielsens
thus
not
subject
to
suppression
under
Miranda
and
its
progeny.
B.
Nielsen also argues that even apart from the requirements
of Miranda, his statements were not voluntary.
A statement is
promises
influence.
or
the
exertion
of
improper
28,
30
(1976)).
The
relevant
inquiry
is
whether
the
critically
impaired
because
of
coercive
police
examine
circumstances,
the
totality
of
the
including
the
Id. (citations
omitted).
To support his argument, Nielsen points to many of the same
aspects of his interview with the agents that he identified as
indicative
of
custody.
None
of
these
factorsthe
sometimes
interview,
or
the
continuation
of
the
interview
after
also
several
emphasizes
medications
that
the
he
morning
suffers
of
the
from
PTSD,
had
interview,
and
And
Nielsens
mental
condition
does
not
lead
to
the
self-determination
interrogation.
critically
impaired
during
the
Accordingly, we
hold that the district court did not err in concluding that the
circumstances surrounding Nielsens interrogation comported with
due process.
III.
A.
Nielsen also challenges his convictions as multiplicitous.
He argues that Counts 1, 3, 5, and 7 of the indictment, charging
aggravated sexual abuse of a minor by force, and Counts 2, 4, 6,
and
8,
charging
sexual
abuse
of
minor,
are
multiplicitous
by
force
disproportionately
if
it
greater
found
strength
that
than
the
the
defendant
victim,
had
which,
Appellant
18.
We
agree
that
Nielsens
convictions
are
Shrader,
omitted).
675
The
F.3d
300,
legislature
313
(4th
remains
Cir.
free
United States
2012)
under
(citation
the
Double
161,
165
multiplicitous
counts.
1993)
(1977).
when
it
An
charges
indictment
a
single
is
offense
improperly
in
several
(citation
omitted).
[R]eversal
is
warranted
if
the
defendant
is
convicted
of
violating
multiple
15
Because
United States v.
Blockburger,
sexual
abuse
of
minor
is
lesser
Section
2241(c)
provides
for
thirty-year
mandatory
minimum
than
[the
offender]).
Because
2241(c)
imposes
of
the
offense
that
must
be
submitted
to
the
jury.
the
government
concedes,
because
the
only
difference
the
2243(a)
offenses
are
merely
lesser
1.
It
has
long
been
understood
included
Suppl. Br.
that
separate
(citations
included
omitted).
offense
are
the
greater
same
offense
offense
for
and
double
lesser
jeopardy
that
[offense].
which
is
required
for
Id. at 168.
17
conviction
of
the
greater
The
government
nonetheless
contends
that
Nielsens
history
of
either
statute
evincing
clear
indication
of
U.S. at 340).
decided
on
prior
based
to
therefore
the
Blockburger
Supreme
Courts
inapposite.
See
analysis
of
the
decision
in
Alleyne
United
States
v.
two
statutes
and
Rivera,
43
are
F.3d
1291, 1297 (9th Cir. 1995); United States v. Amos, 952 F.2d 992,
994 (8th Cir. 1991), abrogated on other grounds, United States
v.
Allery,
175
F.3d
610
Morsette,
858
F.
Supp.
therefore
see
no
reason
(8th
2d
Cir.
1049,
to
1999);
105253
deviate
from
United
(D.N.D.
the
States
2012).
result
of
v.
We
the
we
conclude
that
the
district
court
should
have merged the offenses so that Nielsen would have only been
convicted
of,
and
sentenced
for,
the
greater
2241(a),
(c)
See United States v. Jones, 204 F.3d 541, 544 (4th Cir.
Nielsen
apparent
until
argues
the
that
district
the
multiplicity
court
charged
the
error
was
not
jury
with
the
Pursuant to the
Fed. R. Crim. P.
above
under
plain
error
review.
See
United
States v. Bennafield, 287 F.3d 320, 322 (4th Cir. 2002) (citing
United States v. Olano, 507 U.S. 725, 73132 (1993)).
Under plain error review, a defendant must demonstrate that
an error occurred, that the error was plain, and that the error
19
multiplicitous
That
the
convictions
2243(a)
and
satisfy
2241(a),
(c)
these
counts
shared all elements besides force is clear and obvious from the
face
of
the
indictment
and
from
the
district
courts
including
supervised
eight
release)
concurrent
and
terms
special
of
imprisonment
assessment
fees
on
(and
eight
See United States v. Shorter, 328 F.3d 167, 173 (4th Cir.
seriously
affect[s]
the
20
fairness,
integrity
or
public
reputation
of
judicial
proceedings,
Olano,
507
U.S.
at
736
trenches
Whalen,
445
convictions
particularly
U.S.
and
at
harshly
689.
The
sentences
in
on
individual
imposition
this
case
of
was
liberty.
multiplicitous
therefore
plain
convictions
are
error.
C.
Having
concluded
that
Nielsens
convictions
and
order
is
to
vacate
resentencing
of
the
offending
the
defendant
(4th Cir. 2012) (citing Ball v. United States, 470 U.S. 856, 865
(1985)).
Suppl.
Br.
United
Appellant
7.
We
rejected
similar
argument
in
States v. Colton, 231 F.3d 890 (4th Cir. 2000), and do so again
21
here.
Because
2241(a),
(c)
the
same
offenses
evidence
as
the
was
lesser
used
to
2243(a)
prove
the
offenses,
F.3d at 910.
IV.
For
denial
the
of
reasons
the
motion
set
to
forth
above,
suppress
is
the
district
affirmed.
courts
Nielsens
22