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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10235
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:17-cr-00122-PGB-TBS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

CHRISTOPHER GERARD DICKERSON,
a.k.a. Casual,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                             (June 13, 2019)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Christopher Dickerson appeals his convictions for conspiracy to distribute

and possess with intent to distribute controlled substances, in violation of 21

U.S.C. §§ 841(b)(1)(C), 846; distribution and possession with intent to distribute

heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); possession with intent to

distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C.

§ 2; possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924(e), (2); and possession with intent to distribute fentanyl and

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). On appeal, he argues

that the district court should have suppressed an incriminating statement that he

made because he was being interrogated by law enforcement when he made the

statement, he had not yet been read his Miranda 1 rights, and he had previously

requested an attorney.

      A district court’s denial of a defendant’s motion to suppress is reviewed

under a mixed standard of review, where we review the district court’s findings of

fact for clear error and the district court’s application of law to those facts de novo.

United States v. Ramirez, 476 F.3d 1231, 1235-36 (11th Cir. 2007). The court’s

factual findings are construed in the light most favorable to the prevailing party.

Id. When reviewing the denial of a motion to suppress, we may review the entire




      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
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record, including trial testimony. United States v. Morales, 893 F.3d 1360, 1367

(11th Cir. 2018).

      The Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V. In

Miranda, the Supreme Court held that the government “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 privilege against self-incrimination.” Miranda, 384 U.S. at 444. As

part of the procedure to safeguard a defendant’s right against self-incrimination,

the government must inform the defendant that he has the right to remain silent,

anything he says may be used against him in court, and he can consult with a

lawyer and have a lawyer present with him during interrogation. Id. at 467-73.

Once the accused invokes his right to counsel, authorities may not subject him to

further interrogation until counsel has been made available to him, unless the

accused himself initiates further communication with the police. Edwards v.

Arizona, 451 U.S. 477, 484-85 (1981). However, if the suspect’s reference to an

attorney is “ambiguous or equivocal” from the perspective of a reasonable officer,

law enforcement is not required to stop questioning. Davis v. United States, 512

U.S. 452, 459 (1994).




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      Interrogation occurs “whenever a person in custody is subjected to either

express questioning or its functional equivalent,” which refers to words or actions

that the police should know are reasonably likely to elicit an incriminating

response. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). “Voluntary

incriminating statements, however, not made in response to an officer’s

questioning are freely admissible” even after Miranda rights are asserted. United

States v. Suggs, 755 F.2d 1538, 1541-42 (11th Cir. 1985); see also Miranda, 384

U.S. at 478 (“Volunteered statements of any kind are not barred by the Fifth

Amendment and their admissibility is not affected by our holding today.”).

      The admission of statements in violation of Miranda is subject to harmless

error analysis. United States v. Beale, 921 F.2d 1412, 1435 (11th Cir. 1991). This

determination requires: (1) a two-fold inquiry into the effect of (A) the erroneously

admitted statement upon the other evidence introduced, and (B) the conduct of the

defense; and (2) whether, absent the illegal statement, the remaining evidence

establishes guilt beyond a reasonable doubt. Id.

      First, as to the issue of whether Dickerson actually requested a lawyer at the

scene of his arrest and invoked his Miranda rights—based on Officer Detitto’s

testimony that Dickerson said that he wanted to “think about it”—Dickerson’s

reference to having an attorney was ambiguous. Davis, 512 U.S. at 459. Because

Dickerson did not affirmatively request an attorney, law enforcement was not


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required to refrain from questioning him. Id. Regardless, the issue of whether

Dickerson requested an attorney is not dispositive because, as discussed more

below, the district court did not err in concluding that Dickerson was not being

interrogated and his statement was voluntary.

      Based on the testimony given both at the suppression hearing and trial and a

review of the recorded interview, Officer Middleton was reading Dickerson his

charges and explaining the associated penalties immediately before Dickerson

made an incriminating statement, not unlike the officers in Suggs showing the

suspect the indictment right before the suspect incriminated himself. Suggs, 755

F.2d at 1541-42. Although Middleton did warn Dickerson that he could get a

longer sentence if he did not cooperate, those statements were made after

Dickerson had incriminated himself and thus could not have been said to elicit his

incriminating statement. Therefore, the district court reasonably concluded that

Middleton’s statements were not the “functional equivalent of interrogation.”

Innis, 446 U.S. at 300-01. Moreover, even if Dickerson was being interrogated, his

incriminating statement was not responsive to Middleton’s statement that he would

be considered an armed career criminal. Id. at 1542. Dickerson interrupted

Middleton’s explanation of the penalties to make his incriminating statement.

Therefore, his voluntary incriminating statement was properly admissible. Suggs,

755 F.2d at 1541.


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      To the extent that Dickerson relies on Officer Roman’s question about

whether he could remove his mask, Officer Roman’s question was not the

functional equivalent of interrogation under Miranda because a reasonable officer

would not have thought that the question was likely to elicit an incriminating

response. Innis, 446 U.S. at 300-01 (1980). Moreover, Dickerson did not make

his statement until a few minutes after Officer Roman asked him about removing

the mask, and Dickerson’s statement was unresponsive to Officer Roman’s

statements about his mask. Suggs, 755 F.2d at 1542. Though Dickerson argues

that Roman’s actions created a coercive environment, the focus of the inquiry is on

the officer’s reasonable expectation of the suspect’s response. Innis, 446 U.S. at

300-01 (1980).

      Even if the incriminating statement did violate Miranda, the error was

harmless. Beale, 921 F.2d at 1435. Though Dickerson argues that the statement

had a spillover effect on the drug charges by making the jury believe he was a “bad

guy,” this argument is rebutted by the fact that the jury acquitted him of several of

the drug charges, showing that the jury considered the evidence against each of the

drug charges and was not improperly influenced by Dickerson’s incriminating

statement. Further, both Officer Roman and Officer Gwizdala testified at length

about the sale of firearms that underlaid the charge, and both were directly

involved in and witnesses to that transaction. Both were also able to identify the


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firearms that were purchased from Dickerson. Therefore, even without

Dickerson’s incriminating statement, the remaining evidence established his guilt

as to the firearms charge beyond a reasonable doubt. Beale, 921 F.2d at 1435.

Accordingly, we affirm.

      AFFIRMED.




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