Petition for Writ of Certiorari — Aaron M. Richardson, Petitioner v. United States

NO. _______

IN THE SUPREME COURT OF THE UNITED

STATES

________________

AARON M. RICHARDSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

________________

Respondent.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Eleventh Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

John J. Ossick, Jr.

JOHN J. OSSICK, JR., P.C.

Post Office Box 1087

Kingsland, Georgia 31548

(912) 729-5864

ossick@tds.net

Counsel of Record

Meredith Jones Kingsley

ALSTON & BIRD LLP

1201 W. Peachtree Street

Atlanta, Georgia 30309

(404) 881-7000

Counsel for Petitioner

i

QUESTION PRESENTED

The government obtained Mr. Richardson’s cell

site location information (CSLI) without a warrant

pursuant to the Stored Communications Act, 18

U.S.C. §§ 2703(c) and (d). Throughout the course of

Mr. Richardson’s pre-trial proceedings, trial, and

appeal, he sought the suppression of that evidence

under the Fourth Amendment. The trial court

denied Mr. Richardson’s motion to suppress. On

appeal, the Eleventh Circuit affirmed that denial in

light of its decision in United States v. Davis, 785

F.3d 498, 513 (11th Cir. 2015) (en banc), which held

that obtaining cell site location records under the

Stored Communications Act was not a search within

the meaning of the Fourth Amendment.

Mr. Richardson petitioned for rehearing with the

Eleventh Circuit in light of this Court’s expected

decision in Carpenter v. United States. The Court

then issued its decision in Carpenter v. United

States, 585 U.S. ___, 138 S. Ct. 2206 (2018), holding

that the government must generally obtain a search

warrant before obtaining an individual’s CSLI, but

the Eleventh Circuit denied Mr. Richardson’s

petition shortly thereafter.

The question presented is:

Whether this Court should grant, vacate, and

remand the Court of Appeals for the Eleventh

Circuit’s decision denying defendant’s request to

suppress CSLI obtained without a warrant in light

of this Court’s recent opinion in Carpenter v. United

States, 585 U.S. ___, 138 S. Ct. 2206 (2018).

PETITION FOR WRIT OF CERTIORARI

On behalf of Aaron M. Richardson, the

undersigned petition for a writ of certiorari to

review the judgment of the Court of Appeals for the

Eleventh Circuit in this case and vacate and

remand it in light of Carpenter v. United States,

585 U.S. ___ (2018).

OPINIONS BELOW

The Eleventh Circuit’s order denying rehearing

en banc is unpublished and reproduced at App’x D

at 56a. The opinion of the Eleventh Circuit Court

of Appeals is reported at 732 Fed. App’x 822 and

included in the Appendix at App’x A at 1a. The

orders of the district court are unreported, but are

in the Appendix at the following pages: the

December 15, 2015 magistrate judge’s report and

recommendation that the district court deny Mr.

Richardson’s motion to suppress is unpublished

and reproduced at App’x C at 22a; and the district

court’s February 4, 2016 order adopting the report

and recommendation is reproduced at App’x B at

20a.

JURISDICTION

The judgment of the Eleventh Circuit Court of

Appeals was entered on May 1, 2018. The order

denying the petition for rehearing was entered on

June 27, 2018. The Court has jurisdiction under 28

U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the United States

Constitution provides:

2

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath

or affirmation, and particularly describing

the place to be searched, and the persons or

things to be seized.

STATEMENT OF THE CASE

Petitioner Aaron M. Richardson was indicted on

various charges in the Middle District of Florida,

including attempted murder of a United States

District Judge and using, carrying, and discharging

a firearm during and in relation to a crime of

violence and possessing and discharging a firearm

in furtherance of a crime of violence. The district

court had subject matter jurisdiction pursuant to

28 U.S.C. § 1345. In connection with those charges,

the government sought and obtained a court order

pursuant to the Stored Communications Act, 18

U.S.C. §§ 2703(c) and (d), to allow the collection of

cell site location information (CSLI) from Mr.

Richardson’s cell phone provider. Under these

provisions, the government is not required to show

probable cause, but only must demonstrate that

there are reasonable grounds that the records or

information sought are relevant to an ongoing

criminal investigation.

Mr. Richardson sought suppression of this

evidence before the trial court in the Middle

District of Florida. Mr. Richardson’s motion to

suppress CSLI was denied.

3

During Mr. Richardson’s six-day trial, the

district court granted Mr. Richardson permission to

maintain a standing objection regarding the

admission of CSLI. The government used this

CSLI at trial to show the location of the cell phone

associated with Mr. Richardson’s phone number—

and, by association, Mr. Richardson—on specific

dates and times relevant to the alleged crimes. The

government also used CSLI to support its theory of

motive and planning. The jury returned a guilty

verdict on all but one count, and Mr. Richardson

was sentenced to 4,116 months’ imprisonment.

Mr. Richardson appealed to the Court of

Appeals for the Eleventh Circuit, pursuant to 28

U.S.C. § 1291, arguing, among other things, that

the district court erred in not suppressing the CSLI

because it was obtained without showing probable

cause in violation of Mr. Richardson’s Fourth

Amendment rights. The Eleventh Circuit affirmed

the district court’s denial, relying on Eleventh

Circuit precedent in United States v. Davis, 785

F.3d 498 (11th Cir. 2015) (en banc), which held that

obtaining CSLI under the Stored Communications

Act was not a search within the meaning of the

Fourth Amendment.

Judge Martin wrote

separately and recognized that this Court’s decision

in Carpenter “may mean that this issue [Mr.

Richardson’s Fourth Amendment challenge] will

need to be revisited.” App’x A at 19a.

Mr. Richardson petitioned the Eleventh Circuit

for rehearing en banc, knowing that this Court

would soon decide Carpenter v. United States. The

Eleventh Circuit denied Mr. Richardson’s petition

4

for rehearing on June 27, 2018, just five days after

this Court issued its opinion in Carpenter.

This petition follows.

REASONS FOR GRANTING THE PETITION,

VACATING, AND REMANDING

This petition raises the same question that this

Court directly addressed in Carpenter v. United

States, 585 U.S. ___, 138 S. Ct. 2206 (2018):

whether obtaining CSLI without a showing of

probable cause violates a defendant’s Fourth

Amendment rights. The Eleventh Circuit’s decision

in this case contradicts this Court’s decision in

Carpenter, and should therefore be vacated and

remanded.

I.

The Eleventh Circuit’s

Contradicts Carpenter

Decision

The Eleventh Circuit relied on its decision in

United States v. Davis, 785 F.3d 498 (11th Cir.

2015) (en banc), in affirming the district court’s

denial of Mr. Richardson’s motion to suppress

CSLI. Davis held that the government obtaining

CSLI pursuant to a court order under the Stored

Communications Act did not constitute a search

and did not violate an individual’s Fourth

Amendment rights. Id. at 513. Davis further noted

that, even if obtaining CSLI constituted a search,

individuals “had no reasonable expectation of

privacy in the business records made, kept, and

owned by” a wireless carrier. Id. at 517. The

Eleventh Circuit therefore concluded that a

warrant is not required to obtain CSLI. Id. at 518.

5

In Carpenter, this Court held that “an

individual maintains a legitimate expectation of

privacy in the record of his physical movements as

captured through CSLI.” 585 U.S. at ___, 138 S.

Ct. at 2217. Obtaining location information from

wireless carriers is therefore a search, and

individuals are accordingly entitled to Fourth

Amendment protections. Id. The government

obtained several weeks of Mr. Richardson’s CSLI

pursuant to a court order under section 2703(d) of

the Stored Communications Act, and this Court has

concluded that such an order cannot be used to

obtain even seven days’ worth of CSLI. Id. at 222021, 2257 n.3. The government must instead obtain

a warrant. Id. at 2221.

The Eleventh Circuit’s reliance on Davis is

misplaced in light of this Court’s holding in

Carpenter.

II.

Grant, Vacate, and Remand

Appropriate in This Case

is

It is appropriate for this Court to exercise its

power to grant, vacate, and remand where, as here:

[I]ntervening developments, or recent

developments that we have reason to believe

the court below did not fully consider, reveal

a reasonable probability that the decision

below rests upon a premise that the lower

court would reject if given the opportunity

for further consideration, and where it

appears that such a redetermination may

determine the ultimate outcome of the

litigation.

6

Lawrence v. Chater, 516 U.S. 163, 167-68, 116 S.

Ct. 604, 607, 133 L. Ed. 2d 545 (1996).

The Carpenter decision was issued on June 22,

2018, while Mr. Richardson’s petition for rehearing

was pending before the Eleventh Circuit. Mr.

Richardson’s petition was denied five days later.

The Eleventh Circuit was likely still relying on its

decision in Davis in that denial, as the court had

previously cited that case as its reason for denying

Mr. Richardson’s motion to suppress. Given this

Court’s decision in Carpenter, the Eleventh Circuit

can no longer rely on Davis as a reason to affirm

the denial of Mr. Richardson’s motion to suppress.

By allowing the introduction of this evidence,

the district court could have determined the

ultimate outcome of this case. The government

used Mr. Richardson’s CSLI to purportedly show

motive and planning, as well as place Mr.

Richardson near the scene of the crime. The

government discussed Mr. Richardson’s CSLI in its

closing argument to the jury.

In each instance, the courts below relied in their

decisions on now overturned precedent, never on

any other basis, such as harmless error, cumulative

evidence, or any exception to the warrant

requirement.

If the CSLI were properly

suppressed, upon retrial, a jury may find

reasonable

doubt

regarding

whether

Mr.

Richardson committed the crimes for which he was

convicted.

CONCLUSION

For the foregoing reasons, this Court should

grant the petition, vacate the decision of the Court

7

of Appeals for the Eleventh Circuit, and remand for

the court to consider the case in light of Carpenter.

Respectfully submitted,

John J. Ossick, Jr.

JOHN J. OSSICK, JR., P.C.

Post Office Box 1087

Kingsland, Georgia 31548

(912) 729-5864

ossick@tds.net

Meredith Jones Kingsley

ALSTON & BIRD LLP

1201 W. Peachtree Street

Atlanta, Georgia 30309

(404) 881-7000

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED MAY 1, 2018 . . . 1a

A PPEN DI X B — OR DER OF T H E

UNITED STATES DISTRICT COURT

F OR T H E M I DDL E DI S T R IC T OF

FLORIDA, JACKSONVILLE DIVISION,

FILED FEBRUARY 4, 2016 . . . . . . . . . . . . . . . . . . 20a

A PPENDI X C — REPORT A ND

RECOMMENDATION OF THE

UNITED STATES DISTRICT COURT

F OR T H E M I DDL E DI S T R IC T OF

FLORIDA, JACKSONVILLE DIVISION,

FILED DECEMBER 15, 2015 . . . . . . . . . . . . . . . . 22a

APPENDIX D — DENI AL OF PETITION

FOR REHEA RING OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E ELE V EN T H CI RCU I T, FI LED

JUNE 27, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED MAY 1, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No . 16-14800

D .C . Docket No . 3:13-cr-00177-LSC-JEG-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

AARON M . RICHARDSON,

Defendant - Appellant.

Appeal from the United States District Court

for the Middle District of Florida

May 1, 2018, Decided

Before MARTIN and ANDERSON, Circuit Judges, and

MURPHY* District Judge .

PER CURIAM:

Honorable Stephen J . Murphy, United States District Court

for the Eastern District of Michigan, sitting by designation .

*

2a

Appendix A

In March 2016, a Florida jury convicted Appellant

Aaron M . Richardson of twenty-four charges related to the

attempted murder of District Judge Timothy J . Corrigan .

Appellant now appeals his conviction and sentence . The

pertinent issues are whether the district court erred by:

(1) denying a motion to suppress statements allegedly

compelled in violation of the Fifth Amendment; (2) denying

a motion to suppress cell-tower data allegedly obtained in

violation of the Fourth Amendment; (3) denying a motion

for judgment of acquittal on two false-statement charges;

and (4) applying a sentencing enhancement for obstruction

of justice. For the reasons set forth below, we affirm.

BACKGROUND

I.

Factual Background

A.

The Shooting

In 2011, Judge Corrigan sentenced Appellant to

time served and three years of supervised release for

an unrelated offense . The sentence affected Appellant’s

enrollment at a university, so he sought to end the

supervised release . But Judge Corrigan denied the request .

Appellant’s troubles then began to compound . He

was arrested in October, November, and December 2012

for various burglaries and thefts . Under his supervised

release terms, Appellant was required to submit a monthly

report regarding contact with law enforcement . Despite

his arrests, Appellant reported each month that he had

not been arrested or questioned by law enforcement . A

3a

Appendix A

petition for revocation of supervised release was ultimately

filed, and Appellant was ordered to appear in court.

Instead of addressing his legal troubles in court, the

evidence at trial revealed that Appellant began working on

his “Mission Freedom .”1 Appellant found Judge Corrigan’s

home address and telephone number on the Internet and

researched rifles and ammunition. Appellant then visited a

sporting goods store and examined a hunting rifle. Several

days later, he reentered the same sporting goods store

and hid until closing . Once the store emptied, Appellant

went to the gun department, cut the plastic trigger guard

on the rifle to free it from a security cable, and grabbed

some ammunition .

Two days later, Appellant bought a movie ticket from a

theater near Judge Corrigan’s home . Several hours later,

Judge Corrigan sat watching television with his wife in

their home . Then suddenly there was a loud bang; Judge

Corrigan was struck by shards of metal from the window

frame near where he was sitting, and a bullet lodged itself

in the family-room closet . Less than two hours later,

Appellant entered a bar near Judge Corrigan’s home .

An employee stated that Appellant looked like he had

just walked out of the woods; Appellant also had a fresh

injury on his eye that looked like a “scope bite”: an injury

that occurs when a rifle’s recoil causes the scope to strike

the shooter .

1 . In his cellphone contact list, Appellant stored Judge

Corrigan’s phone number as “Mission Freedom .” And then on the

date of his revocation hearing, Appellant texted his mother from

near Judge Corrigan’s home that he needed to complete his mission

so he could come home free .

4a

Appendix A

B. Arrest and Interrogation

Two days after the shooting, the police went to

arrest Appellant at his apartment for failing to appear

at his revocation hearings . 2 The police also searched

the apartment and found evidence linking Appellant to

Judge Corrigan’s shooting. First, the police found a rifle

in Appellant’s bedroom closet. Like the rifle stolen from

the sporting goods store, the rifle’s trigger guard had been

cut and covered with electrical tape; the tape on the rifle

matched tape that was found in the bushes outside Judge

Corrigan’s home. Moreover, the gun’s size and rifling were

consistent with the bullet recovered from Judge Corrigan’s

home. And it appeared Appellant had used the rifle as

his DNA was found on its scope. In addition to the rifle,

the police recovered ammunition, Appellant’s cellphone,

and bolt cutters . Finally, the police found a sham order

with Judge Corrigan’s forged signature that ostensibly

pardoned Appellant’s entire criminal history .

Appellant was ultimately taken to a local sheriff’s

office so the FBI could question him. After expressing

a desire to go home, an agent advised Appellant that he

had to stay . An agent then presented Appellant with an

advice of rights card, and the agents read the card aloud

to Appellant . After each line, an agent asked Appellant

if he understood and Appellant either nodded or said yes .

Appellant then refused to sign a waiver, but said he would

answer the questions .

2 . Appellant’s hearing was rescheduled after he missed the first

date, but Appellant also did not appear at the rescheduled hearing .

5a

Appendix A

During the questioning, Appellant stated that he had

been at home on the night of the shooting and claimed to

have no knowledge of the rifle. Appellant also stated that

if his fingerprints were on the rifle, it was because he

had touched the rifle while getting his shoes out of a pile

of clothes after his arrest . Towards the end, Appellant

acknowledged that the video recording of the questioning

was admissible in court and that he could request an

attorney . Appellant believed, however, that he had not

said anything incriminating .

II. Procedural History

In September 2013, a grand jury issued a twenty-fivecount indictment against Appellant . In addition to charges

directly related to Judge Corrigan’s shooting, Appellant

was also charged with making a false statement during

his FBI questioning and for falsely representing on his

supervised release report that he had not been arrested

in December 2012 .

Appellant’s competency was then questioned . In

October 2013, the magistrate judge ordered a psychiatric

evaluation . 3 The magistrate judge later held a competency

hearing, and on the next day held a suppression hearing

regarding Appellant’s statements to the FBI . The district

judge ultimately found that Appellant was competent, and

the magistrate judge recommended not suppressing the

statements at issue here . The district judge adopted the

recommendation over objection and without making any

additional findings.

3 . Appellant’s competency was also a primary issue in a

separate criminal matter that was simultaneously pending .

6a

Appendix A

Appellant then proceeded to tr ial . A fter the

Government presented its case, Appellant made an oral

motion for judgment of acquittal on, inter alia, two counts

of making a false statement . The district court denied

the motion and submitted the case to the jury .4 The jury

then convicted Appellant of twenty-four of the twenty-five

counts in the indictment . The Court sentenced Appellant

to 4,116 months’ imprisonment, which included a twolevel enhancement for obstruction of justice . This appeal

followed .

LEGAL STANDARD

When considering a motion to suppress or application

of the sentencing guidelines, the Court reviews conclusions

of law de novo and findings of fact for clear error. United

States v. Doe, 661 F .3d 550, 565 (11th Cir . 2011); United

States v. Farias-Gonzalez, 556 F .3d 1181, 1185 (11th Cir .

2009) . Motions for a judgment of acquittal are reviewed

de novo . United States v. Gonzalez, 834 F .3d 1206, 1214

(11th Cir . 2016) .

DISCUSSION

I.

Suppression of Statements

Appellant contends that the district court erred

by not suppressing certain statements he made to the

FBI . The Fifth Amendment provides that no person

4 . Appellant did not present a case in chief, and the district judge

advised that his motion for judgment of acquittal was preserved .

7a

Appendix A

“shall be compelled in any criminal case to be a witness

against himself .” Absent certain procedural safeguards,

a statement given during custodial interrogation is

presumed to be compelled in violation of the Constitution .

See Miranda v. Arizona, 384 U .S . 436, 444, 86 S . Ct .

1602, 16 L . Ed . 2d 694 (1966) . To dispel that presumption

of compulsion, the person in custody must be advised

of certain rights . Id. The person in custody may then

waive his rights, but to be operative the waiver must

be made voluntarily, knowingly, and intelligently . Id.

If the Government violates a person’s right against

compelled self-incrimination, then generally the compelled

statements must be suppressed . Missouri v. Seibert, 542

U .S . 600, 608, 124 S . Ct . 2601, 159 L . Ed . 2d 643 (2004) .

Appellant’s constitutional right against compelled

self-incrimination was not violated, so his statements need

not be suppressed . Once the Miranda protections attach

and the Miranda warnings have been given, the police

are not obligated to stop asking questions . Berghuis v.

Thompkins, 560 U .S . 370, 381, 130 S . Ct . 2250, 176 L . Ed .

2d 1098 (2010) . Rather, the suspect must either invoke or

waive his rights . Id. A waiver can be implied when, as here,

the suspect is advised of his rights and acts in a manner

inconsistent with the exercising of those rights . Id. at 385 .

Because Appellant answered the FBI’s questions, there

was at least an implied waiver of his Fifth Amendment

rights .

The issue is whether the waiver was effective in light

of Appellant’s mental health history . Although a waiver

must be made voluntarily, knowingly, and intelligently,

8a

Appendix A

the Supreme Court has essentially bifurcated the analysis

into whether the waiver was: (1) uncoerced (i .e . voluntary),

and (2) made with the requisite level of comprehension

(i .e . knowingly and intelligently) . See Moran v. Burbine,

475 U .S . 412, 421, 106 S . Ct . 1135, 89 L . Ed . 2d 410 (1986) .

When performing the analysis, courts evaluate the totality

of the circumstances . Id.

Appellant’s waiver was voluntary . This Court has

previously recognized that “a mental disability does not,

by itself, render a waiver involuntary[ .]” United States

v. Barbour, 70 F .3d 580, 585 (11th Cir . 1995) (citations

omitted) . Instead, courts look to see whether there was

coercion by an official actor; for example, if police take

advantage of a suspect’s mental disability . Id. The only

mention of Appellant’s mental health at the suppression

hearing came when Appellant’s attorney asked an FBI

agent if he knew that part of Appellant’s prior supervised

release “had involved mental health treatment .” The

agent responded that at the time of the interrogation, “I

don’t believe I knew that .” The agent then explained that

he learned of Appellant’s mental health problems while

preparing for trial . Based on the record before us, the

district court did not err by concluding that Appellant’s

waiver was voluntary .

Nor did the district court err by concluding that

Appellant’s waiver was made knowingly and intelligently .

When determining whether a waiver was competently

made, courts consider mental health as part of the

totality of the circumstances . Miller v. Dugger, 838 F .2d

1530, 1539 (11th Cir . 1988) . To do so, we “rely on the

9a

Appendix A

objective indicia of a defendant’s mental state[ .]” United

States v. Sonderup, 639 F .2d 294, 297-98 (5th Cir . Unit A

March 31, 1981) . 5 The objective indicia here support the

district court’s conclusion that Appellant was sufficiently

competent to waive his rights . The record shows that an

FBI agent read all the Miranda rights to Appellant, and

after each line Appellant acknowledged his understanding .

Appellant even asked clarifying questions (which the

agents answered) and carried on a conversation with his

interrogators . Near the end, Appellant observed that he

knew the video recording of his answers could be used in

court and that “I can ask for an attorney but I haven’t said

anything incriminating .” Based on this record, the district

court did not clearly err by finding that Richardson had

the capacity to waive his Miranda rights .6

5 . Fifth Circuit decisions issued before October 1, 1981 are

binding on this Court . Bonner v. City of Prichard, 661 F .2d 1206,

1209 (11th Cir . 1981) (en banc) .

6 . As our colleague, Judge Martin, notes, all the parties at

the suppression hearing, including the magistrate judge, were

well aware of Richardson’s mental health history . The law is well

established that mental health can bear upon whether a defendant

has knowingly and intelligently waived his Miranda rights . United

States v. Barbour, 70 F .3d 580, 585 (11th Cir . 1995); Coleman v.

Singletary, 30 F .3d 1420, 1426 (11th Cir . 1994) . The law is also well

established that we will assume that the trial judge knows the

law and applies it in making his decisions . Burrell v. Bd. of Trs.

of Ga. Military Coll., 125 F .3d 1390, 1395 (11th Cir . 1997) . Here,

we assume that the magistrate judge who found that Richardson

knowingly and intelligently understood and waived his Miranda

rights knew that Richardson’s mental health history was relevant

to that determination . Thus, the magistrate judge made an implicit

finding of fact that Richardson’s mental health history did not render

10a

Appendix A

For these reasons, we affirm the district court’s

conclusion that Appellant’s constitutional rights were

not violated and therefore his statements need not be

suppressed .

II. Cell-Tower Data

Appellant contends that the district court erred by

not suppressing cell-tower data that was obtained without

a warrant and that placed Appellant near the scene of

the crime . Appellant acknowledges that his argument

is foreclosed by United States v. Davis, which held that

obtaining cell-tower data without a warrant did not violate

the Fourth Amendment . 785 F .3d 498, 513, 518 (11th

him unable to knowingly and intelligently waive his Miranda rights .

In light of the evidence before the court at the suppression hearing,

Richardson falls far short of demonstrating that this finding of the

magistrate judge is clearly erroneous . That evidence included, inter

alia, the lack of evidence that, at or around the time of the June 25,

2013 interrogation, Richardson was mentally unable to understand

and waive his Miranda rights; the video indicating that he did in

fact knowingly and intelligently waive his rights; and the fact that

exceedingly competent counsel (also well aware of his mental health

history) were representing Richardson at the suppression hearing

but did not suggest that mental illness prevented him from waiving

his Miranda rights . See United States v. Rodriguez, 799 F .2d 649,

655 (11th Cir . 1986) (per curiam) (holding in the analogous context

of competence to stand trial that “[the defendant’s] counsel’s failure

to raise the competency issue is also persuasive evidence that [the

defendant’s] mental competence was not in doubt .”) .

While it would have been better practice for the magistrate

judge to have made the relevant findings of fact expressly instead

of implicitly, we cannot conclude that there has been error .

11a

Appendix A

Cir . 2015) (en banc) . Because we are bound by Davis,

Appellant’s argument fails .

III. Convictions for False Statements

Appellant challenges the district court’s denial of his

motion for judgment of acquittal on two counts of making

false statements in violation of 18 U .S .C . §§ 1001, 2147(1) .

A motion for judgment of acquittal should be denied if “the

relevant evidence, viewed in a light most favorable to the

Government, could be accepted by a jury as adequate and

sufficient to support the conclusion of the defendant’s guilt

beyond a reasonable doubt .” United States v. Taylor, 972

F .2d 1247, 1250 (11th Cir . 1992) (quoting United States v.

Varkonyi, 611 F .2d 84, 85 (5th Cir . 1980)) . The Government

was required to prove “(1) that [Appellant] made a false

statement; (2) that the statement was material; (3) that

[Appellant] acted with specific intent to mislead; and

(4) that the matter was within the purview of a federal

government agency .” United States v. McCarrick, 294 F .3d

1286, 1290 (11th Cir . 2002) . Falsity “can be established by

a false representation or by the concealment of a material

fact .” United States v. Calhoon, 97 F .3d 518, 524 (11th Cir .

1996). We will address each count in turn, and affirm.

A.

Statements about Interactions with the Rifle

Count Ten charged Appellant with making false

statements in response to a series of questions about

whether his fingerprints or DNA would be found on

12a

Appendix A

the rifle recovered from his home.7 Appellant argues

that the answer was hypothetical and was not material

to the government’s investigation . This Court has

previously rejected arguments that a defendant “was

only speculating out loud” in response to questions, and

therefore his statement could not be false because it was

“ambiguous and uncorroborated, and . . . susceptible to

an interpretation that was literally true .” United States

v. Fern, 696 F .2d 1269, 1275 (11th Cir . 1983) .

Here, a jury could find that Appellant’s statement was

false on its face . Appellant did not accidently touch the gun

after his arrest because no officer let him into the room

where the gun was found . And Appellant was untruthful

when he claimed not to know that there was a gun: his

DNA on the rifle scope shows that he had contact with the

gun . Viewing the evidence in the light most favorable to the

Government, there was sufficient evidence to support the

jury’s conclusion that Appellant made a false statement .

Next, a jury could find that Appellant’s false statement

was material . To be material, “[t]he statement must have a

natural tendency to influence, or be capable of influencing,

the decision of the decisionmaking body to which it was

addressed .” United States v. Boffil-Rivera, 607 F .3d 736,

741 (11th Cir . 2010) (quotation omitted and alteration

adopted) . The Government need not rely on the statement,

7 . Specifically, Appellant’s statement was that if his fingerprints

or DNA were on the Savage Arms .30-06 caliber rifle, serial number

H783115, it was because he touched the rifle in an attempt to get his

shoes out of a pile of belongings that law enforcement officers had

assembled and placed in a pile during his arrest on June 25, 2013 .

13a

Appendix A

rather the statement “must simply have the capacity to

impair or pervert the functioning of a government agency .”

Id. (quotation omitted); see also United States v. Baker,

626 F .2d 512, 514 (5th Cir . 1980) . Consequently, Appellant’s

argument that the Government never actually believed

his story is irrelevant . Rather, the statement was relevant

and material to the investigation because the statement

bore on whether Appellant knew of or had used the rifle.

Viewing this evidence in the light most favorable to the

government, the district court correctly denied the motion

for acquittal .

B. False Monthly Supervision Report

Count Twenty-One charged Appellant with submitting

a false monthly supervision report to the U .S . Probation

Office. Specifically, Appellant checked a box on his monthly

supervision report indicating that he had not interacted

with law enforcement during December 2012 . Appellant

argues that the statement was true when it was made

because the report is dated “12/30/12” and he was not

arrested until December 31, 2012 . Cf. United States v.

Lange, 528 F .2d 1280, 1288 (5th Cir . 1976) (requiring

evidence that defendant knew statement was false at the

time it was made) . The Government, however, presented

evidence that Appellant may have back-dated a previous

supervision report . 8 Viewed in the light most favorable

to the Government, a jury could infer that Appellant

8 . Specifically, the Government presented evidence that

Defendant changed the date on his November 2012 supervision

report from November 30th to November 29th so that he could avoid

reporting an arrest made on November 30th .

14a

Appendix A

also altered his December 2012 supervision report .

And misleading denials can support a conviction . See

Boffil-Rivera, 607 F .3d at 741; United States v. Swindall,

971 F .2d 1531, 1553 (11th Cir . 1992) . Consequently, the

evidence was sufficient to support a guilty verdict. The

district court therefore did not err .

IV. Sentencing Enhancement

Finally, Appellant challenges the district court’s

application of Sentencing Guideline § 3C1 .1 . That section

provides for a two-level enhancement if “the defendant

willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice with respect

to the investigation, prosecution, or sentencing of the

instant offense of conviction .” USSG § 3C1 .1 . The district

court applied the enhancement because of Appellant’s

false statements to the FBI. Because we affirmed that

conviction, supra Section III .A, the enhancement under

§ 3C1 .1 must also stand . See USSG § 3C1 .1, cmt . n .4 (“This

adjustment [] applies to any other obstructive conduct

in respect to the official investigation, prosecution, or

sentencing of the instant offense where there is a separate

count of conviction for such conduct .”); United States v.

Uscinski, 369 F .3d 1243, 1246-47 (11th Cir . 2004) (per

curiam) .

CONCLUSION

In sum, we reject all of Appellant’s arguments and

find that the district court did not err.

AFFIRMED .

15a

Appendix A

M ARTIN, Circuit Judge, concurring in part and

dissenting in part:

Within six months of Aaron Richardson’s June 25,

2013 interrogation by Jacksonville Deputy Sheriffs, in

their office, the District Court ordered that he receive a

psychiatric evaluation . That evaluation found him to be

“suffering from a mental disease or defect rendering him

mentally incompetent to the extent that he is unable to

understand the nature and consequences of the proceedings

against him or to assist properly in his defense .” As a

result of this finding, Mr. Richardson’s trial for the very

serious and frightening charge of discharging a firearm

into the home of Judge Corrigan and his wife was delayed

two years . Mr . Richardson was ultimately rehabilitated to

the point that he was found competent to stand trial . Then

on the day after the Magistrate Judge conducted the final

competency hearing, which resulted in Mr . Richardson

being found competent to stand trial, the same Magistrate

Judge held a hearing on Mr . Richardson’s claim that his

June 25, 2013 statements should be suppressed . All parties

involved—the government, the defense, the Court—knew

of Mr . Richardson’s struggle with schizophrenia . After

all, they had all been in the same courtroom, just the

day before, discussing this exact topic . Even so, no one

raised Mr . Richardson’s competence as an issue at the

suppression hearing . Because this record demonstrates

that the government failed to carry its burden to show

Mr . Richardson’s Miranda1 waiver was knowing and

1 . Miranda v. Arizona, 384 U .S . 436, 86 S . Ct . 1602, 16 L . Ed .

2d 694 (1966)

16a

Appendix A

intelligent, I would suppress the statements he made at

the Jacksonville Sheriff’s Office on June 25, 2013.

This Court’s precedent tells us that mental health

can bear on whether Mr . Richardson knowingly and

intelligently waived his Miranda rights . See Coleman v.

Singletary, 30 F .3d 1420, 1426-27 (11th Cir . 1994) . We also

know that the burden is on the government to demonstrate

that one’s waiver of Miranda rights is done voluntarily,

knowingly, and intelligently . J.D.B. v. North Carolina, 564

U .S . 261, 269-70, 131 S . Ct . 2394, 2401, 180 L . Ed . 2d 310

(2011) . At the suppression hearing neither party raised the

issue of whether Mr . Richardson’s waiver of his Miranda

rights was knowing and voluntary .

It is true, of course, that in the ordinary case addressing

whether there has been a knowing and intelligent waiver

of Miranda rights, it is the defendant who raises the issue .

In this process, courts routinely consider expert testimony

as well as recordings of the interrogation, for example .

See, e.g., Coleman, 30 F .3d at 1426-27 . I recognize as well

that the government is generally not required to prove a

negative in addressing a Miranda waiver, by, for example,

producing a clean alcohol or drug test for every defendant .

See Grayson v. Thompson 257 F .3d 1194, 1200, 1230 (11th

Cir . 2001) (holding that state court did not err in failing

to suppress statements when defendant did not appear to

be intoxicated, despite absence of alcohol or drug tests) .

This case strikes me as different, however . Everyone

participating in this suppression hearing was well aware

of Mr . Richardson’s mental health problems . Just the day

17a

Appendix A

before, the Magistrate Judge conducted a competency

hear ing dur ing which the par ties discussed Mr .

Richardson’s diagnosis of schizophrenia and his ongoing

treatment . This included testimony from expert witnesses

that Mr . Richardson “needs to be on antipsychotic

medication” to maintain his legal competency . The

government’s counsel at the suppression hearing on

Friday, was the same counsel who had litigated Mr .

Richardson’s competency on Thursday . Thus, there is no

question that the government was well aware of mental

health problems that may have prevented Mr . Richardson

from knowingly and intelligently waiving his Miranda

rights back in June of 2013 . 2 In this circumstance, it

seems to me that the government’s burden to establish Mr .

Richardson’s waiver as knowing and intelligent requires

them to make some showing . See J.D.B., 564 U .S . at 26970, 131 S . Ct . at 2401; North Carolina v. Butler, 441 U .S .

369, 373, 99 S . Ct . 1755, 1757, 60 L . Ed . 2d 286 (1979)

(in case of possibly illiterate defendant, it remained the

“prosecution’s burden” to show the defendant “in fact

knowingly and voluntarily waived the rights delineated

in the Miranda case”); Hall v. Thomas, 611 F .3d 1259,

1285 (11th Cir . 2010) (burden remains on the government

to show juvenile defendant had the capacity to waive

Miranda rights) .

I interpret the absence of any evidence or argument

at the suppression hearing to mean that the government

failed to carry its burden of demonstrating a valid waiver .

2 . Mr. Richardson was first diagnosed in connection with his

federal arson case, meaning the government likely had custody of

Mr . Richardson’s relevant medical records .

18a

Appendix A

For this reason, I would suppress any statements Mr .

Richardson made during his interrogation . See Jones v.

Cannon, 174 F .3d 1271, 1291 (11th Cir . 1999) (explaining

that the remedy for a Miranda violation is the suppression

of evidence) .

Counts Five through Ten charged Mr . Richardson

with making a false statement during his June 25, 2013,

interrogation, so suppressing his statements would result

in vacating those convictions . At the same time, I believe

the error in admitting Mr . Richardson’s statements of that

date was harmless as to his remaining convictions . See

Hart v. Att’y Gen., 323 F .3d 884, 895 (11th Cir . 2003) (“The

admission of statements obtained in violation of Miranda

is subject to harmless error scrutiny .”) . The evidence

supporting those convictions was simply overwhelming .

On the other hand, suppression of Mr . Richardson’s

statement in the Jacksonville Sheriff’s office on June

25, 2013 would impact the District Court’s application

of Sentencing Guidelines § 3C1 .1 . This is the guideline

that provides for a two-level increase in the guideline

calculation if “the defendant willfully obstructed or

impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of

conviction .” USSG § 3C1 .1 . The District Court indicated

that the enhancement applied because of the false

statements Mr . Richardson made during his interrogation

in the Sheriff’s Office. Indeed the District Court was

right that the convictions under § 1001 for those false

statements supported an application of the enhancement .

19a

Appendix A

See USSG § 3C1 .1, cmt . n .4 (“This adjustment [] applies

to any other obstructive conduct in respect to the official

investigation, prosecution, or sentencing of the instant

offense where there is a separate count of conviction for

such conduct .” (emphasis added)) . Because I would vacate

Mr . Richardson’s false-statement convictions, I would also

set aside the application of this enhancement, and remand

this case to the District Court for resentencing .

Finally, while the panel opinion correctly sets out the

state of the law in Part II, above, I write separately to

address United States v. Davis, 785 F .3d 498 (11th Cir .

2015) . Our panel is indeed bound by this court’s ruling in

Davis, however I have set out my reasons for believing it

was wrongly decided . The parties to this proceeding are

aware, of course, that the Supreme Court has recently

heard arguments on a similar Fourth Amendment

challenge, see United States v. Carpenter, 819 F .3d 880

(6th Cir . 2016), cert. granted, 137 S . Ct . 2211, 198 L . Ed .

2d 657 (2017), which may mean that this issue will need

to be revisited .

20a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF FLORIDA, JACKSONVILLE

DIVISION, FILED FEBRUARY 4, 2016

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

3:13-CR-00177-LSC-JEG-1

UNITED STATES OF AMERICA,

Plaintiff,

vs .

AARON M . RICHARDSON,

Defendant.

February 4, 2016, Decided

February 4, 2016, Filed

ORDER

On December 15, 2015, the magistrate judge filed his

report and recommendation in the above-styled cause,

recommending that defendant, Aaron M . Richardson’s,

Motion to Suppress Identification be denied (doc. 64), his

Motion to Suppress Evidence be denied (doc. 63), and his

Motion to Suppress Richardson’s Statements be granted

in part and denied in part (doc. 62). (Doc. 124). He further

recommended that the Government should not be allowed

21a

Appendix B

to use Richardson’s statements at Shands Hospital at

Richardson’s trial but should be allowed to use all other

statements made and physical evidence gathered against

Richardson. (Id.)

On January 6, 2016, the defendant filed under

seal objections to the magistrate judge’s report and

recommendation. (Doc. 130.) On January 20, 2016, the

Government responded to those objections, also under

seal. (Doc. 134.)

Having now carefully reviewed and considered de

novo all the materials in the court file, including the

report and recommendation, the defendant’s objections

thereto, and the Government’s response, the Court is of

the opinion that the defendant’s objections are due to be

and hereby are OVERRULED, the report is due to be

and hereby is ADOPTED, and the recommendation is

ACCEPTED . Consequently, the defendant’s Motion to

Suppress Identification is DENIED (doc. 64), his Motion

to Suppress Evidence is DENIED (doc. 63), and his Motion

to Suppress Richardson’s Statements is GRANTED

IN PART AND DENIED IN PART as stated in the

magistrate judge’s report and recommendation (doc. 62).

DONE and ORDERED on February 4, 2016 .

/s/ L . Scott Coogler

L. Scott Coogler

United States District Judge

22a

Appendix

C

APPENDIX

C — REPORT

AND

RECOMMENDATION OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT

OF FLORIDA, JACKSONVILLE DIVISION,

FILED DECEMBER 15, 2015

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CASE NO .: CR313-177

UNITED STATES OF AMERICA,

v .

AARON M . RICHARDSON .

December 15, 2015, Decided

December 15, 2015, Filed

MAGISTRATE JUDGE’S REPORT

AND RECOMMENDATION

Richardson Aaron M . Richardson (“Richardson”),

facing a twenty-five count indictment charging the

attempted murder of a United States District Judge

and related offenses, moves the Court to suppress

three identifications, two separate statements made

by Richardson while in custody, and evidence found

pursuant to a protective sweep, two consent searches,

and certain cell-site information . (Doc . nos . 63-64, 66 .)

The undersigned conducted an evidentiary hearing on

these Motions on December 1, 2015 at which Agent John

23a

Appendix C

Brock, Florida Department of Law Enforcement, Rod

Pinckney, Jacksonville Sheriff’s Office, Steve Burros, FBI,

Scott Waters, FBI, Bill Logan, FBI, Sharon Richardson,

Richardson’s mother, and Ronna Richardson, Richardson’s

sister, testified.

STATEMENT OF THE FACTS

On June 11, 2013, the United States District Court

for the Middle District of Florida, Jacksonville Division,

issued a warrant for Richardson’s arrest due to his failure

to appear at an arraignment on a superseding petition

for revocation of his supervised release . (Exs . 1A, 1B .)

A United States Marshal’s Fugitive Task Force was

assigned to execute the warrant due to Richardson being

a possible suspect in the attempted murder of United

States District Judge Timothy J . Corrigan . (Suppression

Tr . (“Tr .”) at 6-9 .)

A. The Execution of the Warrant and Protective Sweep

Special Agent John Brock of the Florida Department

of Law Enforcement was the lead case agent for

Richardson’s outstanding warrant . (Tr . at 5, 51 .) SA Brock,

through a database search, located a home as Richardson’s

likely residence, but then determined through a police

report made by Richardson that his residence was more

likely at 6710 Collins Road, Apartment 2519 . (Tr . at 1012.) The police report identified Aaron Richardson as

the complainant making a report in regards to a stolen

motorcycle on May 3, 2015, approximately a month and a

half before the warrant was executed . (Ex . 2 .) Richardson

24a

Appendix C

made the report at 8710 Collins Road and stated that he

was in a several week process of moving out of the home

that SA Brock initially identified and into apartment

2519 . (Id.) Richardson also stated in the report that he

discovered the motorcycle missing at 6:30 a .m ., but did

not report it stolen until 5:40 p .m . because he had to go

to work at LaborReady at Edgewood .(Id.)

After reading this report, SA Brock travelled to

Westland Park Apartments and spoke with Jennifer

Clavell . (Tr . at 15 .) Clavell advised SA Brock that

Richardson’s mother was leasing the apartment and

that she had given Richardson permission to stay in the

apartment with his mother as a student . (Tr . at 16 .) Clavell

also identified Richardson from a picture. (Tr. at 17.) After

speaking with Clavell, SA Brock spoke with Larry Trees,

the apartment maintenance manager, and asked him to do

a maintenance call on the apartment . (Tr . at 17-18 .) Trees

was unable to gain entry to the apartment due to a third

dead-bolt lock installed by a previous tenant that he did

not have the key to . (Tr . at 20 .) Trees relayed to SA Brock

that only the previous tenant possessed a key to the lock,

and as a result, the only way to lock the dead-bolt was

from the inside of the apartment . (Id.) This indicated to

SA Brock that someone was inside the apartment . (Id.) SA

Brock could not locate any cars in the apartment complex’s

parking lot that they could associate with Richardson’s

mother . (Id.) Wes Bowen of the Jacksonville Sheriff’s

Office, who was assisting the team by covering the rear of

the apartment with his K-9, also radioed to SA Brock that

he observed blinds moving from a ceiling fan . (Tr . at 70 .)

From this information, SA Brock inferred that Richardson

was inside the apartment . (Tr . at 20-21 .)

25a

Appendix C

SA Brock next attempted to get the individual inside

to open the door by loudly knocking and announcing the

presence of law enforcement . (Tr . at 24 .) SA Brock and

the three law enforcement officers standing outside the

door were all wearing tactical gear which clearly indicated

that they were law enforcement . (Id.) SA Brock testified

that from his experience, it was common for individuals

with knowledge of an outstanding warrant to hide inside

their residence to avoid apprehension by law enforcement .

(Id.) SA Brock waited five to ten minutes before breaching

the door and then again announcing their presence and

requesting the individual to come to the front door . (Tr . at

24-25 .) After waiting another period of time, SA Brock and

his team conducted a preliminary sweep of the apartment,

checking all rooms for individuals that might have posed

an immediate threat . (Tr . at 26 .) This did not involve

looking into confined spaces where potential threats could

hide, such as under the bed or in closets . (Id.)

Upon reaching the master bedroom, the team

discovered that it was locked, thus requiring breaching it

and checking for possible threats. (Tr. at 27.) The officers

did not observe anyone in the master bedroom . (Id.) After

the team cleared the master bedroom, they performed

a secondary sweep, checking for potential confederates

hiding under beds and in closets . (Id.) This was performed

to secure the safety of the officers. (Id.) Upon looking into

a bedroom which was later determined to be Richardson’s,

the officers found a bolt-action rifle in the closet. (Tr. at

28.) Detective Calhoun, upon finding the rifle, cleared it

of any ammunition . (Tr . at 30 .)

26a

Appendix C

After performing the secondary sweep, the officers

proceeded to the master bedroom and determined that

the only option left for an individual hiding would be in the

closet of the master bedroom or in the attic crawlspace,

the hatch to which was located in the closet . (Tr . at 31 .) At

this point, SA Brock made the decision to deploy Officer

Bowen’s K-9, due in part to a recent incident where a law

enforcement officer was killed by an individual hiding in

a crawlspace. (Tr. at 31, 74.) Officer Bowen in particular

had recently been trained to not go into attics or near

crawlspaces due to that incident. (Tr. at 74.) Officer Bowen

proceeded into the room and announced for any individual

to come out or his dog would be released and bite him .

(Tr. at 72.) Officer Bowen waited thirty seconds before

releasing his K-9, which quickly found Richardson hiding

behind a pile of clothes in the closet . (Tr . at 75 .) Richardson

was handcuffed and given medical care for his wound from

the dog bite . (Tr . at 76 .)

B. The First Consent Search

After Richardson was arrested, Special Agent Steve

Burros and Special Agent Bill Logan with the Federal

Bureau of Investigations were tasked with responding to

the address and following up on any potential leads due

to Richardson’s status as a potential suspect in the Judge

Corrigan case . (Tr . at 83-84 .) After arriving, SA Burros

spoke with the officers that executed the warrant, went

into the apartment to observe the rifle, and waited for

Richardson’s mother to arrive to request consent to search

the apartment . (Tr . at 85-86 .) When Richardson’s mother,

Sharon Richardson, arrived, SA Burros, SA Logan, and

27a

Appendix C

Detective Calhoun spoke to her and told her they found

a gun in the apartment to which she expressed surprise .

(Tr. at 87-88.) The officers stated that they were there

to take Richardson into custody and then requested Ms .

Richardson’s permission to search the room in which the

rifle was found. (Tr. at 88-89.)

Ms. Richardson identified the apartment as hers and

informed the officers that she had the only key to the

apartment . (Tr . at 90-91 .) Ms . Richardson also relayed to

the officers that she had moved Richardson’s belongings,

set up his bedroom, put his clothes in the closet, and blew up

an air mattress in the room . (Tr . at 91 .) She further stated

that she had full access to the room and that Richardson

did not have a key because she did not trust him . (Tr . at

93-94 .) Ms . Richardson also refused to volunteer the name

of her employer or her younger son’s name when asked

by the officers. (Tr. at 114-115.) The officers then asked

for consent to search the room and presented her with a

consent form and also informed that if she did not sign the

form, they would seek a warrant . (Tr . at 94, 112, 229, 263;

Ex . 7 .) The consent form stated that Ms . Richardson has

been asked permission to search the first room on the right

of Apartment 2519, she has been advised of her right to

refuse consent, she gives the permission voluntarily, and

she authorizes the agents to take any items which may be

related to their investigation . (Ex . 7 .) The consent form

was witnessed by SA Burros and Detective Calhoun and

reflects Ms. Richardson’s signature. (Id.) As a result of

the consent search of the room, the agents seized one zip

lock bag containing ammunition, two cellphones, a black

backpack also containing ammunition, a machete, and two

pairs of shoes . (Ex . 7, p . 3 .)

28a

Appendix C

The consent form also reflects permission to search a

Verizon cellphone and HP laptop computer . (Ex . 7 .) These

items were not initially present when Ms . Richardson

signed the form but were added later during the search

of Richardson’s bedroom . (Tr . at 152-154 .) The phone was

found in Richardson’s room . (Tr . at 152 .) Ms . Richardson

revealed the presence of the laptop to the agents, and said

it was sometimes used by Richardson but belonged to

his younger brother . (Tr . at 154 .) Ms . Richardson agreed

to allow the agents to image the computer but did not

want them to take it because her younger son used it for

school . (Tr . at 154 .) Accordingly, the computer was imaged

the next day when an examiner was available . (Id.) Ms .

Richardson initialed the addition of both the laptop and

the phone on the form . (Ex . 7; Tr . at 101-102 .)

C. The Second Consent Search

On June 28, 2015, three days after Richardson’s

arrest, SA Logan and Special Agent Joshua Sizemore

returned to Ms . Richardson’s apartment to seek consent

for a second search of the entire apartment . (Tr . at 167 .)

The detectives were interested in searching the entire

apartment because the ballistics test indicated a match

between the caliber of bullet that penetrated Judge

Corrigan’s window in the attempted murder and the rifle

found in Richardson’s bedroom . (Tr . at 166-167 .)

Upon arriving at the apartment, Ms . Richardson was

not there, and the agents waited approximately an hour for

her to return . (Tr . at 167 .) When Ms . Richardson arrived,

SA Logan explained that this search would be more

29a

Appendix C

intensive, and she would probably need to find a place to

sleep that night, potentially with her daughter who lived in

the same complex . (Tr . at 169 .) Ms . Richardson asked about

her access to the apartment, and SA Logan explained that

she could not return to her apartment until after he had

discussed with the legal team if they could file for a search

warrant (Tr . at 169-170 .) After being presented a written

consent form, Ms . Richardson signed it shortly thereafter .

(Tr . at 170 .) The consent form states that Ms . Richardson

has been asked permission to search Apartment 2519,

she has been advised of her right to refuse consent, she

gives the permission voluntarily, and she authorizes the

agents to take any items which may be related to their

investigation . (Ex . 9 .) The agents seized numerous items

from the apartment, the most important of which was a

sham order purporting to exonerate Richardson of all

prior and pending state and federal charges with Judge

Corrigan’s signature . (Tr . at 131-134, Ex . 20-76, 20-78 .)

D. Richardson’s Statement to Officers in the Hospital

After being arrested and given first aid for his dog

bite, Richardson was transported to Shands Hospital

in downtown Jacksonville for treatment of his wound .

(Tr . at 32-33 .) Special Agent Scott Waters of the FBI

responded to the hospital in order to eliminate Richardson

as a suspect in the Judge Corrigan case . (Tr . at 123-124 .)

SA Waters did not believe he was a true suspect due to

preliminary tests indicating that the gun used in the Judge

Corrigan case was a handgun . (Tr . at 123 .)

30a

Appendix C

Upon arriving at the hospital, SA Waters questioned

Richardson while he was on a gurney at the hospital .

(Tr . at 124-125 .) At this time, Richardson was in custody

pursuant to his revocation arrest warrant and was not

given any Miranda warnings . (Tr . at 125 .) SA Waters

asked what his normal mode of transportation was, and

he indicated that he either rode with his mother or on the

bus . (Tr . at 126 .) SA Waters also asked what he did over

the weekend of the attempted murder of Judge Corrigan

to which he responded that he was at home sick with his

mother due to a sandwich from Tijuana Flats . (Tr . at 126 .)

SA Waters also asked about the injury above Richardson’s

eye which he indicated was from a toilet . (Tr . at 127 .) SA

Waters interviewed him for less than thirty minutes . (Tr .

at 128 .) Notably, Richardson’s alibi that he was with his

mother the night of Judge Corrigan’s attempted murder

later broke down . (Id.)

E. Richardson’s Statement at the Jacksonville

Sheriff’s Office

After being discharged from the hospital on June 15,

2013 at approximately 11 p .m ., Richardson was taken to the

Jacksonville Sheriff’s Office robbery unit for questioning.

(Tr . at 157 .) At the time of questioning, Richardson was

only taking ibuprofen for his dog-bite wound . (Tr . at 161 .)

At the beginning of the interview, Richardson asked if

the agents were going to hit him, sharing an experience

where he was hit in Clay County . (Tr . at 162 .) The agents

immediately informed Richardson that they were not

going to hit him and that was not why there were there .

(Id.) (Ex . 24A, 3:45 — 7:23)

31a

Appendix C

Agent Silverstein then read him his rights, informing

him that he had the right to remain silent, anything he

said could be used against him in court, he had a right

to an attorney, if he could not afford an attorney, one

would be provided to him, and that he had a right to

stop the questioning at any time . (Ex . 24A, 3:45 — 7:23)

When asked if he understood his rights, Richardson did

not immediately assent, and Agent Silverstein further

clarified his rights to him. (Id.) Richardson also asked if

he could go home, and Agent Silverstein replied that he

could not get him home and that he would have to deal with

his failure to appear . (Ex . 24, 15:33 — 15:50 .) Richardson

refused to sign a written consent form but shook Agent

Silverstein’s hand, stating that looking someone in the eye

and shaking their hand was something you could build

a trust bond with . (Ex . 24, 17:46 — 17:50; Tr . at 164 .) At

no point during the interview did the agents threaten or

use physical violence against Richardson or draw their

weapons . (Tr . at 163 .) After the handshake, the recording

of the interview reflects that Richardson began talking

to Agent Silverstein, apparently of his own volition .

Richardson also stated near the end of the interview that

he understood that he could ask for an attorney but that

he had not said anything incriminating . (Tr . at 166 .)

F. The Identification by Erik Markiewicz

A trace performed on the Savage .30-06 rifle found

in Richardson’s bedroom indicated that the rifle belong

to a Sports Authority near Regency Mall in Jacksonville .

(Tr . at 174 .) The Sports Authority did not realize that

the firearm was missing, and review of surveillance

32a

Appendix C

video showed an individual in the store late on the night

of June 20th and into the early morning hours of June

21st . (Tr . at 174-175 .) Upon reviewing that surveillance,

Erik Markiewicz, a manager, recognized the individual

as someone that was also in the store on June 15, 2013 .

(Tr . at 175 .)

In an interview with SA Logan, Markiewicz recalled

talking to the individual in regards to two separate

weapons, a .270 Savage arms rifle and a .30-06 Savage

arms rifle. (Tr. at 178; Ex. 16.) The surveillance video from

Sports Authority reflects that Markiewicz spoke to the

individual for approximately twenty-three minutes . (Ex .

13, 21:30 - 45:08 .) Markiewicz described the individual as

standing approximately 5’10 with a muscular build, very

white teeth, a hat on, and no visible tattoos . (Ex . 16 .) During

their conversation, the individual claimed to be in the

special forces in the military, was home from deployment,

and had been shot twice . (Id.) Despite claiming to be in the

military, the individual’s questions did not convey that he

had much knowledge about firearms. (Id.) The individual

asked about the difference between the .270 and .30-06

and their ammunition, and claimed to be dead-on with iron

sights . (Lc He also claimed that his father and grandfather

were previously in the military and that there was an old

sniper movie about his grandfather . (Id.)

Upon being shown an unmarked driver’s license photo

of Richardson, Markiewicz identified the individual in the

store that he spoke with on June 15, 2013 as Richardson .

(Id.) Markiewicz stated he was one hundred percent

positive about the identification. (Id.) In the interview,

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Markiewicz recalled that Richardson’s comments made

him hesitant to allow Richardson to handle the firearms

despite allowing most customers to do so . (Tr . at 180 .)

Markiewicz also stated that he recalled Richardson in

particular because he did not sell many firearms in the

store, making such interactions unique . (Tr . at 181 .)

G. The Identification by Joshua Sizemore

Through multiple interviews with Ms . Richardson,

the agents found out that she picked up Richardson early

in the morning on June 21, 2015, the same day the gun

was stolen from the Sports Authority . (Tr . at 182 .) Ms .

Richardson received a phone call that morning from a

number that she did not recognize, and it was her son,

Richardson, requesting to be picked up . (Id.) A review of

Ms . Richardson’s phone records indicated that the call

came from a phone belonging to Joshua Sizemore, the

only call from that number . (Id.)

An interview with Sizemore revealed that he had

gone to the movies that night . (Ex . 17 .) He was sitting on

the trunk of his car in the parking lot of Regency Square

Mall near the theater when an individual walked up

between 1:00 a .m . and 1:30 a .m . (Id.) Sizemore described

the individual as looking like he had just come from a

construction site, with paint or concrete on his clothes

and wearing a baggy top shirt and work boots . (Id.) The

individual asked if he could borrow Sizemore’s phone,

stating he had just gotten off work and had to call his mom

for a ride . (Id.) Sizemore allowed the individual to use his

phone and heard the individual tell his mother to meet him

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at the same spot she dropped him off previously . (Id.) The

records demonstrate that the call lasted approximately

two minutes. (Tr. at 187.) Sizemore identified the individual

as Richardson from a driver’s license photograph . (Tr . at

188 .) SA Logan did not disclose to Sizemore the reason

for asking the identity of the individual . (Id.)

H. The Identification by Jahbari Hall

After multiple interviews with Ms . Richardson, she

also admitted that she picked up Richardson on the south

side of Jacksonville early in the morning on the same night

of the attempted murder of Judge Corrigan . (Tr . at 190191 .) Ms . Richardson admitted to receiving a phone call

from an unknown number and then picking up Richardson .

(Tr . at 191 .) The agents traced a call consistent with this

information to a phone number belonging to Jabhari Hall .

(Tr . at 191 .)

Hall recalled working early in the morning on June 23,

2013 at South Side Ale House . (Ex . 18 .) At approximately

2 a .m . that evening, a black male walked into the bar area

of the Ale House and sat in the corner across from the

dishwasher area . (Id.) Hall recalled lending his phone to

that individual and that the individual stated he needed

to call for a ride, requesting the address of the Ale House .

(Id.) Hall stated that the individual’s appearance was dirty,

as if he had just come out of the woods, but did not recall

his appearance except for the fact that he may have been

wearing a white t-shirt . (Id.) In addition, Hall, because

of his location across the bar, could not tell whether the

individual had any bags or additional items with him . (Id.)

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The individual waited at the ale house for approximately

thirty minutes while waiting for the ride and did not

purchase anything . (Id.) Hall identified the individual in

the restaurant as Richardson from a license photograph

and a booking photograph . (Tr . at 194 .) When shown the

booking photograph, Hall remarked that the scar in that

photograph was present when he was in the restaurant .

(Id.)

DISCUSSION AND CITATION TO AUTHORITY

I.

The Payton Entry and Protective Sweeps of Ms.

Richardson’s Apartment Leading to Discovery of

the Rifle were Reasonable.

In Payton v. New York, 445 U .S . 573, 603, 100 S .

Ct . 1371, 63 L . Ed . 2d 639 (1980), the Supreme Court

held that “for Fourth Amendment purposes, an arrest

warrant founded on probable cause implicitly carries

with it the limited authority to enter a dwelling in which

the suspect lives when there is reason to believe the

suspect is within .” The Eleventh Circuit has held that

Payton requires a two-part inquiry to determine if entry

pursuant to an arrest warrant complies with the Fourth

Amendment’s proscription of unreasonable searches .

See Magluta, 44 F .3d at 1533 . “[F]irst, there must be

a reasonable belief that the location to be searched is

the suspect’s dwelling, and second, the police must have

‘reason to believe’ that the suspect is within the dwelling .”

Id. Elaborating on this inquiry, the Eleventh Circuit has

explained that “for law enforcement officials to enter a

residence to execute an arrest warrant for a resident

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Appendix C

of the premises, the facts and circumstances within the

knowledge of the law enforcement agents, when viewed

in the totality, must warrant a reasonable belief that the

location to be searched is the suspect’s dwelling, and that

the suspect Is within the residence at the time of entry .”

Id. at 1535 . Furthermore, “in evaluating this on the spot

determination, as to the second Payton prong, courts

must be sensitive to common sense factors indicating a

resident’s presence .” Id. Such “common sense factors”

must also guide courts in evaluating the first Payton

prong . United States v. Bervaldi, 226 F .3d 1256, 1262-63

(11th Cir . 2000) .

Here, there are a multitude of factors showing a

reasonable belief that Apartment 2519 at Collins Road was

in fact Richardson’s address . The agents examined a police

report which indicated that Richardson was in the process

of a moving out of a house on Marsala Road, an address

that had come up in the officer’s database search. The

police report further showed that Richardson was moving

into Apartment 2519 . The length between the police report

and the execution of the warrant, over a month and a half,

would have indicated to the officers that any such move

would have been completed by that time, and it would be

highly unlikely that Richardson would have moved again

in such a short time period . SA Brock’s conversation with

Ms. Clavell, the apartment manager, also confirmed that

Sharon Richardson was leasing that apartment and that

Richardson was residing with her as a student . Ms . Clavell

also identified Richardson from a picture.

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The officers also possessed a reasonable belief that

Richardson was, in fact, inside the apartment . The

apartment maintenance manager, Larry Trees, relayed to

the officers that he could not gain access to the apartment

for a maintenance call due to a dead-bolt lock installed by

the previous tenant . Trees indicated that only the prior

tenant had a key, and the lock was engaged from the inside,

indicating someone was inside. Officer Bowen also noticed

vertical movement of the window blinds, indicating that

a ceiling fan was on, and radioed this to SA Brock . SA

Brock also had knowledge that Richardson worked at a

temporary staffing agency and knew about the transient

nature of his work, giving further indications that he

could be home during the day . (Tr . at 41 .) Further, the

refusal of anyone to open the door to law enforcement

further heightened the inference that the person inside

was Richardson. SA Brock testified that it was not unusual

for individuals with a warrant for their arrest to refuse

to open the door for law enforcement. When Officer Rod

Pinckney forcibly opened the door, the officers had more

than reasonable belief to believe that the person hiding

inside the apartment was Richardson . This was only

further confirmed by the refusal of the individual to come

to the door once the door was forcibly opened .

Once the officers had reasonable belief that Richardson

was in the apartment, they “had the right, based on the

authority of the arrest warrant, to search anywhere in

the house that [Richardson] might have been found . . . .

.” Maryland v. Buie, 494 U .S . 325, 330, 110 S . Ct . 1093,

108 L. Ed. 2d 276 (1990). “If there is sufficient evidence of

a citizen’s participation in a felony to persuade a judicial

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officer that his arrest is justified, it is constitutionally

reasonable to require him to open his doors to the officers

of the law .” Id. In accordance with this authority, the

officers forcibly opened the door after Richardson refused

to open it and then performed primary and secondary

sweeps searching for Richardson and any potential

threats. During these sweeps, the officers found the rifle in

a closet of a bedroom, a place where Richardson or another

confederate that could potentially have a weapon could

have been hiding . (See Tr. at 28.) The rifle was in plain

view when the officer looked in the closet, and the officer

had a prior justification for validly looking into the closet

for Richardson . See Horton v. California, 496 U .S . 128,

135, 110 S . Ct . 2301, 110 L . Ed . 2d 112 (1990) . Further, the

incriminating nature of the gun was immediately obvious

to the officer because of Richardson’s status as a felon

and his condition of release that prohibited possession of

firearms. (See Ex . 3 .)

Buie, 494 U .S . at 334, also supports the officers’

right to conduct a “protective sweep” to ensure the

officers’ safety. There, the Court recognized two types

of protective sweeps . See United States v. Mayo, 792

F .Supp . 768, 773 (M .D .Ala .1992) . First, during a search

incident to an arrest occurring inside a home, officers may,

as a precautionary matter and without probable cause

or reasonable suspicion, look in closets and other spaces

immediately adjoining the place of arrest from which an

attack could be immediately launched .” Buie, 494 U .S . at

334. Second, officers may conduct a more pervasive search

when they have “articulable facts which, taken together

with the rational inferences from those facts, would

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warrant a reasonably prudent officer in believing that the

area to be swept harbors an individual posing a danger

to those on the arrest scene .” Id.; See also United States

v. Colbert, 76 F .3d 773, 776 (6th Cir .1996) (discussing the

two types of protective sweeps allowed by Buie) .

Here, the officers were not only looking for Richardson

but also searching for any potential threats in the

apartment . The closet was a space in which Richardson

or confederates could have hidden to potentially launch

an attack on the officers. Accordingly, Buie also supports

the officer’s entry into Richardson’s bedroom closet which

lead to seizure of the gun .

Even if the incriminating nature of the gun was

not immediately obvious to the officers, their actions in

clearing the rifle and simply placing it on the bed was

reasonable . (Tr . at 30, 42; Ex . 6E .) “Upon discovery of

weapons during the course of a search, it is permissible to

secure those weapons, for the safety of those conducting

the search, as well as any others present .” United States

v. Laferrera, 596 F . Supp . 362, 363 (S .D . Fla . 1984) . Here,

the later seizure of the gun and removal from Richardson’s

bedroom was authorized by Ms . Richardson’s valid consent

as explained infra . See United States v. Delancy, 502

F .3d 1297, 1309 (11th Cir . 2007) (homeowner’s voluntary

consent was not tainted by prior illegal protective sweep) .

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II. Ms. Richardson Gave Voluntary Consent for the

Search of Richardson’s Bedroom, the HP Laptop,

and the Verizon Cellphone on June 25, 2013.

Under the Fourth Amendment, a search conducted

pursuant to a valid consent is constitutionally permissible .

Schneckloth v. Bustamonte, 412 U .S . 218, 222, 93 S . Ct .

2041, 36 L . Ed . 2d 854 (1973) . However, when a prosecutor

seeks to rely upon consent to justify the lawfulness of a

search, the prosecutor bears the burden of proving that

the consent was freely and voluntarily given . Id. Consent

to a search is voluntary if it is the product of an ‘essentially

free and unconstrained choice .’ United States v. Boulette,

265 Fed . Appx . 895, 898 (11th Cir . 2008) . Consent is not

voluntarily given where it is acquiescence to a claim of

lawful authority . United States v. Blake, 888 F .2d 795,

798 (11th Cir . 1989)

A third party with common authority over the

premises may give consent to search the area . United

States v. Matlock, 415 U .S . 164, 171, 94 S . Ct . 988, 39 L .

Ed . 2d 242 (1974) . “[E]ven if the consenting party does

not, in fact, have the requisite relationship to the premises,

there is no Fourth Amendment violation if an officer has

an objectively reasonable, though mistaken, good-faith

belief that the consent he has obtained valid consent to

search the area .” United States v. Brazel, 102 F .3d 1120,

1148 (11th Cir . 1997) (citing Illinois v. Rodriguez, 497 U .S .

177, 186, 110 S . Ct . 2793, 111 L . Ed . 2d 148 (1990) . Common

authority “rests rather on mutual use of the property by

persons generally having joint access or control for most

purposes, so that it is reasonable to recognize that any of

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the co-inhabitants has the right to permit the inspection

in his own right and that the others have assumed the risk

that one of their number might permit the common area

to be searched .” United States v. Matlock, 415 U .S . 164,

171, n .7, 94 S . Ct . 988, 39 L . Ed . 2d 242 (1974) .

Here, it is apparent that Ms . Richardson had common

authority over Richardson’s bedroom . Ms . Richardson

was the only person paying rent at the apartment

and possessed the only key . (Tr . at 90-91 .) She moved

Richardson’s belongings, set up his bedroom, put his

clothes in the closet, and blew up an air mattress in the

room . (Tr . at 91 .) She also regularly went into his room

to pick up laundry so that it would not stink . (Tr, at 255 .)

This information demonstrated that Ms . Richardson had

full access to the room and exercised dominion and control

over items in the room, thus showing she had common

authority to permit a search of the room . After SA Logan

had this information, he would have had a reasonable belief

that Ms . Richardson had common authority over the room

the officers wished to search (Tr. at 149-151.)

Further, there is a complete absence of any evidence of

coercion by the officers in getting Ms. Richardson to sign

the consent form. The officers merely informed her that

they would seek a warrant if she did not consent, which

is not a claim of lawful authority but rather an implicit

admission by the officers that they had no authority at

the moment to search the room . This did not taint Ms .

Richardson’s consent . United States v. Garcia, 890 F .2d

355, 361 (11th Cir . 1989) (consent was voluntary where

officers refused conditional consent and requested consent

42a

Appendix C

to search entire premises or else they would have to secure

house and apply for search warrant) . Nor did the fact that

she might have been informed she could not reenter until

the warrant application process was completed render her

consent involuntary, especially in light of the presence of

her daughter’s apartment in the same complex . See id.

Nonetheless, SA Burros testified that Ms. Richardson

was never told that she could not return to her apartment

unless she consented . (Tr . at 111 .) Further, the consent

form that was signed by Ms . Richardson and witnessed

by SA Burros and Detective Calhoun reflected that she

had been advised of her right to refuse, a requirement

not necessary for obtaining consent but instructive in

determining whether consent is voluntary . Finally, Ms .

Richardson’s refusal to give her younger son’s name or

to provide her employer to the officers further shows her

awareness of her right to refuse consent .

As to Ms. Richardson’s representation that the officers

told her that a warrant would inevitably be obtained, the

Court finds her not fully credible. SA Burros testimony

was unequivocal that Ms . Richardson was informed

if she did not sign the form that the officers would be

“trying to obtain a search warrant .” (Tr . at 99 .) This was

also confirmed by Ronna Richardson, Ms. Richardson’s

daughter who was also present when the consent was

given . (Tr . at 262-263 .) Ms . Richardson’s testimony is

also impugned by the fact that she misrepresented to

agents that she did not see Richardson from June 20, 2015

through June 23, 2015, but sent a cryptic text message to

Richardson informing him about the investigation . (Tr .

at 248-252 .) Her obvious relationship to Richardson also

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poses a further obstacle to crediting her testimony over

that of the officers.

Ms . Richardson also gave valid consent to search the

HP Laptop and Verizon cellphone added to the consent

form during the search of Richardson’s room on June

25, 2013 . As discussed above, Ms . Richardson knew

of her right to refuse consent and had demonstrated

the ability to exercise that right by refusing to answer

certain questions from the agents . The consent form

reflects that she initialed these additions, and there were

no unscrupulous intentions through adding these items

due to their discovery after Ms . Richardson gave consent

to search the room . (Tr . at 152-153 .) Ms . Richardson

specifically identified the Verizon phone as belonging to

her, that she paid the bill, and gave the agents permission

to search it . (Tr . at 153 .) Ms . Richardson also brought the

agents the HP laptop, demonstrating dominion over it, and

specifically consented to allowing the agents to image it.

(Tr . at 153 .)1

III. Ms. Richardson Gave Voluntary Consent for the

Search of the Apartment on June 28, 2013.

The record also demonstrates that Ms . Richardson

gave voluntary consent on June 28, 2015, to allow the

agents to search the apartment . SA Logan explained

to her that this second search would be more intensive,

1 . Although Richardson’s motion goes to extensive lengths to

argue he had an expectation of privacy in his room, it is not apparent

that he has standing to contest the seizure of the laptop, as it belonged

to his younger brother . (Tr . at 153 .)

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Appendix C

and she would probably need to sleep at her daughter’s

apartment who lived in the same complex . (Tr . at 169 .) He

also explained that she could not return to her apartment

until after he had discussed with the legal team if they

could file for a search warrant. (Tr. at 169-170.) The consent

form that was also signed by Ms . Richardson shows that

she was apprised of her right to refuse and voluntarily

consented to the search . (Ex . 9 .)

On June 28, 2013, Ms . Richardson was fully apprised

of the consequences of consenting to the search . She had

full knowledge that this would be a more intensive search

and would keep her out of her apartment for an extended

period of time . Although the agents informed her that they

would need to secure the apartment until a warrant could

be applied for, this did not render her consent involuntary .

See Garcia, 890 F .2d at 361 . Further, the fact that she

would be excluded from her apartment for a period of

time put minimal hardship on Ms . Richardson given her

daughter’s apartment close by . Finally, Ms . Richardson’s

statement that no one explained any rights and the agents

stated “they had to search a second time is contradicted

by her signature on the form and by her lack of credibility

as explained above . (Tr . at 233 .)

IV. Richardson’s Unwarned Statements at the Hospital

Are Subject to Suppression.

“[T]he prosecution may not use statements, whether

exculpatory or inculpatory, stemming from custodial

interrogation of the defendant unless it demonstrates

the use of procedural safeguards effective to secure the

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privilege against self-incrimination .” Miranda v. Arizona,

384 U .S . 436, 444, 86 S . Ct . 1602, 16 L . Ed . 2d 694 (1966) . A

defendant may waive his right against self-incrimination,

provided such waiver is voluntary, know ing, and

intelligent . Id . at 444 . Waiver is voluntary, knowing, and

intelligent if “it was the product of a free and deliberate

choice rather than intimidation, coercion, or deception,”

and it was “made with a full awareness of both the nature

of the right being abandoned and the consequences of the

decision to abandon it .” U.S. v. Beckles, 565 F .3d 832, 840

(11th Cir . 2009) (internal quotations and citation omitted) .

Furthermore, “[v]oluntary and spontaneous comments by

an accused, even after Miranda rights are asserted, are

admissible evidence if the comments were not made in

response to government questioning .” Cannady v. Dugger,

931 F .2d 752, 754 (11th Cir . 1991) .

It is undisputed that Richardson was not given any

sort of warning before being asked questions while he

was receiving treatment at Shands hospital . SA Waters

testified that Richardson was not high on the suspect

list at that point due to the firearm found not being a

handgun, the type of firearm preliminary tests indicated

was used in the attempted murder of Judge Corrigan .

Thus, SA Waters was only seeking exculpatory evidence

from Richardson to eliminate him from the suspect

list . However, SA Waters subjective intent in asking

the questions is irrelevant under the Miranda analysis .

Further, the fact that he was not in custody for the

attempted murder of Judge Corrigan is also irrelevant to

the analysis . Mathis v. United States, 391 U .S . 1, 4, 88 S .

Ct . 1503, 20 L . Ed . 2d 381, 1968-2 C .B . 903 (1968) (“The

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Appendix C

Government also seeks to narrow the scope of the Miranda

holding by making it applicable only to questioning one

who is ‘in custody’ in connection with the very case under

investigation . There is no substance to such a distinction

. . . . .”) . Here, Richardson was subject to questioning while

in custody without the requisite warnings and Miranda

compels that these custodial statements cannot be used

against him . 384 U .S . at 479 .

However, these unwarned statements do not taint

any of the physical evidence later gathered against

Richardson . “Admission of nontestimonial physical

fruits . . . . does not run the risk of admitting into trial

an accused’s coerced incriminating statements against

himself .” United States v. Patane, 542 U .S . 630, 645,

124 S . Ct . 2620, 159 L . Ed . 2d 667 (2004) (Kennedy, J .,

concurring) . Thus, the right against self-incrimination

“cannot be violated by the introduction of nontestimonial

evidence obtained as a result of voluntary statements .” Id.

at 637 (plurality opinion) . Thus, Richardson’s unwarned

statements do not mandate exclusion of any later gathered

physical evidence from the apartment . Even if the fruit

of the poisonous tree doctrine did apply to Richardson’s

statements, a valid independent source for the June 28,

2013 search existed because of SA Logan’s testimony that

they were interested in searching the apartment due to a

caliber match from the ballistics test of the Savage rifle.

See United States v. Noriega, 676 F .3d 1252, 1261 (11th

Cir . 2012) .

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Appendix C

V. Richardson Voluntarily Waived His Right to

Remain Silent and Have an Attorney Present at

the Jacksonville’ Sheriff’s Office.

The record shows that Richardson was read his full

Miranda rights before any questioning occurred at the

Jacksonville Sheriff’s Office . In addition, his actions

demonstrate a knowing and voluntarily waiver of those

rights . The agents did not promise anything and, in fact,

specifically told them that they could not get him home

and that he would have to deal with his failure to appear

charge . Further, no threats of violence were made,

and Agent Silverstein specifically told Richardson that

he would not lay a hand on Richardson when relayed

the incident that occurred in Clay County . (Tr . at 216 .)

Although Richardson refused to sign the form stating that

“I can’t sign that,” (Ex . 24, 17:44), his conduct after dispels

any notion that this was an unequivocal invocation of his

rights . As best as the Court can discern from the garbled

audio, Richardson, right after refusing to sign the form,

stated that he would “answer questions the best that I can,

but if I don’t know . . . .” (Ex . 24, 17:51 — 17:58 .) Richardson

then began speaking unprompted from the detectives for

almost two minutes straight . (Ex . 24, 17:44-19:49 .)

A defendant can implicitly waive their right to remain

silent and right to an attorney . N. Carolina v. Butler, 441

U .S . 369, 376, 99 S . Ct . 1755, 60 L . Ed . 2d 286 (U .S . 1979) .

Nothing in Miranda requires a defendant’s signature on

a written waiver of rights form, and the refusal to sign

a waiver does “not conclusively indicate that the suspect

wishes to remain silent .” Jones v. Dugger, 928 F .2d 1020,

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Appendix C

1027 (11th Cir . 1991) . Here, Richardson shook hands

with both detectives, stating that it could build a bond

of trust, and then immediately began talking without

any prompting, after stating he would not sign the form .

SA Logan also testified that the detectives received

an affirmative oral waiver by Richardson. (Tr. at 218.)

Richardson’s statement that he knew he had the right to

an attorney but had not said anything incriminating at

the end of the interview further confirms his voluntary

waiver . The fact that Richardson questioned whether

the detectives would hit him does not render his waiver

involuntary because he was unequivocally informed that

no physical violence would be used . Further, the statement

by Richardson that he was going to fall out during the

interview also does not render his statements involuntary .

Richardson had just been released from a hospital and

the only medicine that he was taking for his minor wound

was ibuprofen . (Tr . at 161 .) Based on this information, the

officers had a clear indication that his medical condition

was normal .

Further, Plaintiff’s statements at the Jacksonville

Sheriff’s Office are untainted by his earlier unwarned

statements at the hospital . In Oregon v. Elstad, 470

U .S . 298, 311, 105 S . Ct . 1285, 84 L . Ed . 2d 222 (1985),

the Supreme Court firmly rejected the “cat out of the

bag” theory that an earlier unwarned confession would

perpetually disable law enforcement from using a later,

warned and voluntary confession . The factors to consider

when determining whether an earlier unwarned statement

impacts a later statement include “the completeness and

detail of the questions and answers in the first round

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Appendix C

of interrogation, the overlapping content of the two

statements, the timing and setting of the first and the

second, the continuity of police personnel, and the degree

to which the interrogator’s questions treated the second

round as continuous with the first.” Missouri v. Seibert,

542 U .S . 600, 615, 124 S . Ct . 2601, 159 L . Ed . 2d 643

(2004) (plurality opinion) . Here, it would have been clear

to Richardson that the questioning at the Jacksonville’s

Sheriff’s Officer was a new and distinct experience and

that he had a genuine choice of whether to follow up on the

earlier information he had given to SA Waters .

Here, the two sessions were entirely different in

character. The first instance of questioning involved a

few perfunctory questions about his whereabouts in the

period between June 20th and June 23rd and his mode of

transport, which lasted no more than thirty minutes . (Tr .

at 128 .) The second questioning was more in depth and

lasted a full two hours . The two sessions of questioning

was also performed by entirely separate officers and at

different locations . There was also a substantial lapse of

time between the two sessions . Although SA Waters did

not testify as to the exact timing of the questioning at the

hospital, at least enough time elapsed for Richardson to be

discharged from the hospital, driven to the Jacksonville

Sheriff’s Office, and then given time to eat the McDonald’s

picked up by the officers . Further, the testimony by

SA Waters clearly indicated that the warnings at the

hospital were omitted in good faith . Seibert, 542 U .S . at

617 (Breyer, J ., concurring) . This was not an underhanded

attempt to gain a confession but rather an effort to

eliminate a suspect from a lengthy list . Accordingly,

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the two statements are distinct, and the first unwarned

statement in no way taints the admissibility of the later

voluntary statement .

VI. The Record Shows that Three identifications Are

Reliable under the Biggers factors.

Defendant arg ues that the identif ications by

Markiewicz, Sizemore, and Hall were unduly suggestive

leading to substantial risk of irreparable misidentification.

(See doc . no . 64 .) Defendant argues that the single-photo

indentification process used by the detectives was unduly

suggestive but gives no argument as to the specific factors

making the identifications unreliable. (Id.)

The Eleventh Circuit requires a two-step analysis

to determine whether an identification process is so

unreliable as to violate due process . Williams v. Weldon,

826 F .2d 1018, 1021 (11th Cir . 1987) . First, a court must

decide whether the original identification procedure was

unduly suggestive . Id. If not, that ends the inquiry . Id.

If so, however, the court must then determine whether

the suggestive procedure, given the totality of the

circumstances, created a substantial risk of irreparable

misidentification at trial. Dobbs v. Kemp, 790 F .2d 1499,

1506 (11th Cir . 1986), modified in part on other grounds,

809 F .2d 750 (11th Cir . 1987); Passman v. Blackburn, 652

F .2d 559, 569 (5th Cir . Unit A 1981), cert. denied, 455 U .S .

1022, 102 S . Ct . 1722, 72 L . Ed . 2d 141 (1982) .

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Under this analysis, “reliability is the linchpin in

determining the admissibility of identification testimony.”

Manson v. Brathwaite, 432 U .S . 98, 114, 97 S . Ct . 2243,

2253, 53 L . Ed .2d 140 (1977) . The factors that go into the

“totality of the circumstances” analysis include: (1) the

opportunity to view, (2) the degree of attention, (3) the

accuracy of the description, (4) the level of certainty, and

(5) the length of time elapsing between the crime and the

identification.” Blanco v. Singletary, 943 F .2d 1477, 1508

(11th Cir . 1991) (citing Neil v. Biggers, 409 U .S . 188, 199,

93 S . Ct . 375, 34 L . Ed . 2d 401 (1972)) .

First, the government suggests that the single-photo

identification process used by the agents in speaking to

the three witnesses that identified Richardson was not

unduly suggestive. This Court could find no case law that

found that such a process was not unduly suggestive and

the government cites none .

Nonetheless, the Biggers factors weigh heavily in favor

of admitting the testimony of Markiewicz that Richardson

was the person who, in fact, spoke to him about the

.30-06 Savage Arms Rifle on June 15, 2013. Markiewicz

had an extensive opportunity to view Richardson, speaking

with him for over twenty minutes . His description of

Richardson appears accurate from the surveillance video .

Markiewicz stated that he was one hundred percent

certain about the correctness of his identification, and

only about two and half weeks elapsed before Markiewicz

identified Richardson. (Ex. 16.) Markiewicz also indicated

that he specifically remembered Richardson because he

did not receive many customers who wished to purchase

52a

Appendix C

guns and thus, the interaction stood out . (Tr . at 181 .)

Finally, Markiewicz’s firm recollection of the eccentric

conversation with Richardson indicates that his memory of

Richardson remained intact and that his identification was

grounded in his recollection of Richardson’s appearance .

Accordingly, Markiewicz’s identification is reliable and

admissible at trial .

Applying the Biggers factors to Joshua Sizemore’s

identification, the record shows that his identification of

Richardson as the person he allowed to use his phone is

reliable . Sizemore described Richardson as a black male

who looked like he had just gotten off work because he had

paint and concrete on his clothes, was wearing a baggie

shirt, and was also wearing work boots . (Tr . at 187 .)

Richardson asked to borrow Sizemore’s phone to call his

mom and the call lasted approximately two minutes . (Tr . at

187 .) SA Logan described the parking lot of the encounter

as well lit and that Sizemore identified Richardson from

the photo without hesitation . (Tr . at 188 .)

Here, Sizemore had a substantial opportunity to view

Richardson for over two minutes and would have been in

close contact through handing him the phone . Although

there is no direct evidence on his degree of attention,

the fact that Richardson was using Sizemore’s phone

would have led to more than minimal attention due to

concerns about the phone being returned . Sizemore did

not express any specific degree of certainty but quickly

identified Richardson and expressed no doubts as to

the identification. (Tr. at 288.) The month between the

encounter and the identification is also not so long as to

53a

Appendix C

undermine the reliability of the identification. United

States v. Burke, 738 F .2d 1225, 1229 (11th Cir . 1984)

(finding an identification reliable after a time period of

two months elapsed). Finally, Sizemore’s identification is

supported by his description that Richardson needed to

use the phone to call his mom, when the phone was, in fact,

used to call Richardson’s mom . Accordingly, the Court

finds that Sizemore’s identification is sufficiently reliable

and will be admissible at trial .

Applying the Biggers factors to Jabhari Hall’s outof-court identification, the record demonstrates that

his identification is sufficiently reliable to be introduced

at trial . Hall had an extensive opportunity to view

Richardson because he waited at the Ale House for over

thirty minutes . (Ex . 18 .) Although Hall was performing

other tasks during that span of time, Hall would have

had the opportunity at least once to get a close view of

Richardson through handing him the phone . There is no

direct evidence in the record as to Hall’s degree attention,

but it stands to reason that a person lending a cell phone

to another individual would lend some degree of attention

to guard against it being purloined . The phone call was

also not brief, lasting a total of six minutes . (Tr . at 195 .)

Hall only gave a generic description of Richardson, stating

that he looked like he had just come out of the woods and

may have been wearing a white t-shirt but described no

facial features, distinctive marks, or body features like

height and weight. (Ex. 18.) There was also no specific

level certainty assigned by Hall, but he quickly identified

him when shown the photograph and expressed no lack of

certainty as to the identification. (Tr. at 195.)

54a

Appendix C

As to the last Biggers factor, a month and half had

passed between the encounter and the identification, a

permissible amount of time under Eleventh Circuit case

law . See Burke, 738 F .2d at 1229 . Finally, the accuracy of

Hall’s identification is firmly supported by the recognition

of a distinctive feature, Richardson’s wound above his eye .

Unprompted by the detectives, Hall pointed out the wound

in the booking photo after initially identifying him in the

driver’s license photo, stating that he had that wound when

he came into the restaurant . (Tr . at 194 .) Stripping aside

any presumption that the wound arose from the attempted

murder of Judge Corrigan, it would stand to reason that

the scar or wound would likely have been present during

the interaction a few days before the booking photo was

taken . Thus, Hall’s recollection of the wound strengthens

the likelihood that his identification was based on his own

recollection of Richardson rather than the suggestiveness

of the identification procedure used.

CONCLUSION

Based on the foregoing, it is my RECOMMENDATION

that Richardson’s Motion to suppress identification be

DENIED (doc . no . 64), his Motion to suppress evidence

be DENIED (doc . no . 63), and his Motion to suppress

Richardson’s statements be GRANTED IN PART AND

DENIED IN PART (doc . no . 62 .) . The government should

not be allowed to use Richardson’s statements at Shands

Hospital at Richardson’s trial but should be allowed to use

all other statements made and physical evidence gathered

against Richardson .

55a

Appendix C

SO REPORTED and RECOMMENDED this 15th

day of December, 2015 .

/s/ James E . Graham

JAMES E . GRAHAM

UNITED STATES MAGISTRATE

JUDGE

56a

AppendixOF

D PETITION FOR

APPENDIX D — DENIAL

REHEARING of thE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT,

FILED JUNE 27, 2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No . 16-14800-CC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AARON M . RICHARDSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Florida

BEFORE: MARTIN and ANDERSON, Circuit Judges,

and MURPHY*, District Judge .

PER CURIAM:

The petition(s) for panel rehearing filed by Aaron M.

Richardson is DENIED .

* Honorable Stephen J. Murphy, United States District Court

for the Eastern District of Michigan, sitting by designation .

57a

Appendix D

ENTERED FOR THE COURT:

/s/Beverly B. Martin

United states circuit judGe

58a

Appendix D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No . 16-14800-CC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AARON M . RICHARDSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of Florida

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

BEFORE: MARTIN and ANDERSON, Circuit Judges,

and MURPHY*, District Judge .

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no Judge

in regular active service on the Court having requested

that the Court be polled on rehearing en banc (Rule 35,

* Honorable Stephen J. Murphy, United States District Court

for the Eastern District of Michigan, sitting by designation

59a

Appendix D

Federal Rules of Appellate Procedure), the Petition(s) for

Rehearing En Banc are DENIED .

ENTERED FOR THE COURT:

/s/Beverly B. Martin

United states circuit judGe