                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4806


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JOHN DOUGLAS BIRD, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:09-cr-00015-LHT-DLH-1)


Argued:   December 10, 2010                 Decided:   January 31, 2011


Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and KEENAN, Circuit Judge.


Affirmed by unpublished opinion.    Judge Keenan wrote the
opinion, in which Associate Justice O’Connor and Chief Judge
Traxler joined.


ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Donald David Gast, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee.   ON BRIEF: Claire J.
Rauscher, Executive Director, Angela Parrot, Assistant Federal
Defender, Fredilyn Sison, Assistant Federal Defender, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant.       Edward R. Ryan, United      States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
KEENAN, Circuit Judge:

     John   Douglas     Bird,     Jr.,    was   convicted      of    five     offenses

relating    to   the    shooting     of       Merony    George      Shell     on   the

reservation of the Eastern Band of Cherokee Indians in North

Carolina.      A jury found Bird guilty of attempted murder, in

violation of 18 U.S.C. §§ 1113 and 1153; assault with the intent

to commit murder, in violation of 18 §§ U.S.C. 113(a)(1) and

1153; assault with a dangerous weapon, in violation of 18 U.S.C

§§ 133(a)(3)     and    1153;     assault     resulting       in    serious    bodily

injury, in violation of 18 §§ U.S.C. 113(a)(6) and 1153; and use

of a firearm in a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii).

     On appeal, Bird challenges the district court’s denial of

his motion to suppress statements he made to law enforcement

officers    after      his   arrest.          Bird     also    argues       that   his

convictions and sentences for attempted murder and assault with

the intent to commit murder constitute multiple punishments for

the same offense, in violation of his constitutional protection

against being     placed     in   double      jeopardy.       For    the    following

reasons, we affirm Bird’s convictions and sentences.



                                         I.

     On December 25, 2008, Shell was walking in the woods when

he encountered Bird.            According to Shell, Bird was holding a

                                          3
rifle and stated that he was “going to shoot” Shell.                                    Shell

responded, “You’ve got the gun, you might as well kill me.”

Bird discharged the rifle, shooting Shell in the face and the

arm.        Shell    suffered      serious       injuries      as     a    result     of   the

shooting.

       After      Bird   was   arrested      and   taken       into       custody,    he   was

interviewed         by   William    Eugene       Owl,    an    investigator          for   the

Cherokee Indian Police Department (Detective Owl).                             Before the

interview began, Detective Owl advised Bird of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966).                         Bird stated that he

understood those rights and agreed to talk with Detective Owl.

       As    the     interview     began,     Bird      vomited.            Bird     informed

Detective Owl that his “stomach was messed up,” and that he had

suffered from this “condition” for “a couple years.”                               Bird also

stated that he drank a “couple of beers every morning to make

his stomach feel better.”

       During the interview, Bird denied any involvement with the

shooting.         When Detective Owl asked Bird if he would be willing

to take a polygraph test, Bird responded, “Yes, let’s do it,

because     I     didn’t   have    anything       to    do    with    [the    shooting      of

Shell].”          When Bird asked whether he would be released from

custody      if    he    “pass[ed]”   the        polygraph      test,       Detective      Owl

replied, “We [will] have to wait and see.”



                                             4
      The next day, Detective Owl arrived at the detention center

to transport Bird to the office where the polygraph test was to

be administered.             At   that      time,   Detective          Owl    observed         Bird

vomiting.      During the one-hour drive to the office, Bird vomited

at least two more times.

      The polygraph test was administered by Christopher J. Smith

(Agent     Smith),      an    assistant        special      agent        with       the    North

Carolina State Bureau of Investigation.                           Before starting the

test, Agent Smith asked Detective Owl and another officer about

Bird’s physical condition.                   The officers informed Agent Smith

that they thought “some” of Bird’s nausea may have been related

to   alcohol      withdrawal,         but    they   also     stated          that    Bird       was

nervous    and     previously         had     vomited      when      speaking        with      law

enforcement officers. 1

      Agent Smith began his conversation with Bird by advising

him of his Miranda rights.                   Bird indicated that he understood

those rights and agreed to waive them.                               The form that Bird

reviewed and signed was entitled, “Polygraph Adult Advice of

Rights,”    and    included       a    statement     that       he     agreed       “to   answer

truthfully       all    questions           asked   (a)     during           the    interviews

conducted      before    and      after      the    time    I     am    attached          to    the

      1
       The evidence did not establish whether Bird suffered from
alcohol withdrawal at the time of his arrest and later
interrogation.



                                               5
polygraph        and    (b)    during      the     time       I    am    attached        to     the

polygraph.”

     In preliminary questioning conducted before the polygraph

test, Agent Smith asked Bird if he “felt okay” and offered him

crackers and water to “settle his stomach.”                             Although the record

does not indicate whether Bird accepted Agent Smith’s offer,

Bird stated that he “felt a little bit better.”                                Agent Smith

concluded that although Bird was “a little uncomfortable,” he

“seemed     to    be     fine.”        While       Agent      Smith       administered          the

polygraph test, Bird did not vomit.

     At the end of the 90-minute polygraph test, Agent Smith

informed Bird that he had failed the test.                              At that time, Bird

admitted    that        he    had   shot    Shell       and       provided    some       general

information about the shooting.

     Shortly           thereafter,      Detective          Owl      conducted        a        brief

interview with Bird but did not repeat the Miranda warnings.

Bird admitted to Detective Owl that he shot Shell “[s]omewhere

in the mountains.”             However, Bird maintained that the shooting

was a “mistake” and was not intentional.

     Before        trial,       Bird    filed       a     motion         to   suppress          the

statements that he made to Agent Smith and Detective Owl.                                     After

a hearing, the district court denied the motion, and the case

proceeded to a jury trial.                  During trial, the district court

admitted these statements into evidence.

                                               6
      The    jury     found    Bird       guilty     of    all    five    charges.          The

district      court     imposed       a    total      sentence       of       330    months’

imprisonment for the five offenses.



                                            II.

      Bird first argues that the district court erred in denying

his motion to suppress the statements he made to Agent Smith and

Detective Owl.         Bird asserts that his waiver of rights was not

voluntarily, knowingly, or intelligently made.

      In considering a district court’s ruling on a motion to

suppress, we review the district court’s legal conclusions de

novo and its factual findings for clear error.                       United States v.

Cardwell, 433 F.3d 378, 388 (4th Cir. 2005).                      The district court

in   the    present    case    denied      the     motion    to   suppress          summarily

without making factual findings.

      Established       principles        guide      our   review    of       the    district

court’s     denial    of    Bird’s    suppression          motion.        A    defendant’s

incriminating statements made during a custodial interrogation

will be suppressed unless law enforcement officers advise the

defendant     of    his     Miranda       rights     and    the   defendant          properly

waives those rights.            See Miranda, 384 U.S. at 444.                         In the

present     case,     the   parties       do   not    dispute     that        Bird    was   in

custody during the post-polygraph interrogation, or that Bird

was advised of his Miranda rights.

                                               7
       In   determining         the   validity         of   a   defendant’s     waiver      of

Miranda rights, we examine the “totality of the circumstances”

of the interrogation, including the defendant’s characteristics,

the interview environment, and the details of the interrogation.

United States v. Cristobal, 293 F.3d 134, 140 (4th Cir. 2002).

When reviewing these circumstances, we primarily consider two

factors.     First, we consider whether the defendant voluntarily

relinquished his rights in a free and deliberate manner, without

intimidation,           coercion,       or   deception           by    law     enforcement

officers.         Cardwell, 433 F.3d at 389; Cristobal, 293 F.3d at

140.     The critical question under this factor is whether the

defendant’s will has been overborne or his capacity for self-

determination          critically     impaired         because    of    coercive      police

conduct.     Cardwell, 433 F.3d at 389; Cristobal, 293 F.3d at 140.

Second,     we    consider      whether      the    defendant         waived   his    rights

knowingly and intelligently, fully aware of the nature of the

rights being abandoned and the consequences of waiving them.

Cardwell, 433 F.3d at 389; Cristobal, 293 F.3d at 140.

       Bird argues that he was coerced by Detective Owl to waive

his    Miranda        rights    and   submit      to    a   polygraph     test,      because

Detective        Owl     knew    that    Bird       was     suffering        from    alcohol

withdrawal and would “do anything” to be released from custody.

According        to    Bird,    Detective     Owl      improperly       induced      Bird   to

waive his Miranda rights and take the polygraph test by leaving

                                              8
open the possibility that if he “passed” the test, he might be

released from custody.             We disagree with Bird’s arguments and

conclude that, under the totality of the circumstances, Bird has

failed to demonstrate any coercive conduct that would render his

waiver of rights involuntary. 2

      The evidence did not show that Detective Owl, or any other

law   enforcement        officer,        improperly          used    Bird’s        physical

condition and possible alcohol dependency to induce him to waive

his Miranda rights and take the polygraph test.                              Rather, the

record demonstrates that Bird agreed to take the polygraph test

to show that “[he] didn’t have anything to do with [the shooting

of Shell].”      After agreeing to waive his Miranda rights and take

the polygraph test, Bird asked Detective Owl whether he would be

released   from    custody       if    he   “pass[ed]”       the     test.        Detective

Owl’s response, that Bird would “have to wait and see,” was

inconclusive      and    did     not     impair    Bird’s      capacity        for    self-

determination.          Moreover,      there      is    no    evidence       of    coercive

conduct    by    Agent     Smith       or    Detective        Owl.       We       conclude,

therefore,      that    Bird’s    will      was   not   overborne,       and      that   his

waiver of Miranda rights was voluntary.


      2
       Bird’s argument that his physical condition affected the
results of the polygraph test is not relevant to the issue
whether his waiver of rights was voluntary.    Therefore, we do
not address that argument.



                                             9
       Bird     argues,     nevertheless,       that      based       on    his     physical

condition at the time he waived his Miranda rights, his waiver

was not knowingly or intelligently made.                        At oral argument in

this    case,      Bird’s    counsel    acknowledged          that    Bird    effectively

asks this court to hold, as a matter of law, that a defendant

suffering from alcohol withdrawal is unable to make a knowing

and intelligent waiver of Miranda rights.                            We decline Bird’s

invitation, because the determination whether a defendant has

waived his Miranda rights must be based on the totality of the

circumstances surrounding the particular interrogation at issue.

See Moran v. Burbine, 475 U.S. 412, 421 (1986); Cristobal, 293

F.3d    at    140.      A     uniform   rule    that      a    defendant          exhibiting

symptoms      of     alcohol    withdrawal      cannot         knowingly          waive     his

Miranda       rights        would    violate       this        required           individual

assessment.

       In    the    present    case,    although    Bird       had     vomited       several

times before agreeing to waive his Miranda rights and sign the

waiver form, there is no evidence indicating that his nausea

impaired his mental capacity to understand his rights or the

effect of his waiver.               Bird’s statement to Detective Owl that

Bird expected that the polygraph test results would exonerate

him is evidence that he made a knowing choice to participate in

the test.       Additionally, when Agent Smith questioned Bird about

his    physical      condition,     Bird   told    Agent       Smith       that    he     “felt

                                           10
better.”    Based on these statements by Bird and the lack of any

evidence that Bird’s nausea impaired his mental faculties, we

conclude    that     Bird    knowingly        and    intelligently         waived   his

Miranda rights.       Accordingly, we hold that the totality of the

circumstances supports Bird’s waiver under Miranda, and that the

district court did not err in denying Bird’s suppression motion. 3



                                      III.

     Bird next argues that his convictions and sentences for

attempted    murder    and   for    assault         with    the   intent    to   commit

murder constitute multiple punishments for the same offense, in

violation of his constitutional protection against being placed

in double jeopardy.         Because Bird did not assert this defense in

the district court, we review his argument on appeal for plain

error.      United    States   v.   Olano,          507    U.S.   725,   731-32,    736

(1993).     To establish plain error, Bird must demonstrate that

(1) the district court erred; (2) the error was plain; (3) the

error affected Birds’ substantial rights; and (4) the error, if


     3
       We find no merit in Bird’s argument that Agent Smith and
Detective Owl were required to provide additional Miranda
warnings after the polygraph test ended.       The waiver form
reviewed and signed by Bird before the polygraph test began
contained clear language that that the waiver applied to both
“interviews conducted before and after the time [Bird was]
attached   to  the   polygraph,”  and   during   the  polygraph
examination.



                                         11
not corrected, would seriously affect the fairness, integrity,

or public reputation of judicial proceedings.                       Id.

       Under the Double Jeopardy Clause of the Fifth Amendment, a

person may not be “subject for the same offence to be twice put

in jeopardy of life or limb.”                      U.S. Const. amend. V.                This

provision protects a defendant from a second prosecution for the

same offense after acquittal, a second prosecution for the same

offense after a conviction, and multiple punishments imposed in

a single prosecution for the same offense.                    Jones v. Thomas, 491

U.S. 376, 381 (1989); United States v. Martin, 523 F.3d 281, 290

(4th Cir. 2008).

       When examining the issue of multiple punishments for the

same   offense     in    a    single    prosecution,          the    double      jeopardy

violation     alleged    here,    we    consider       the    punishment         that   the

legislature intended for the crimes.                     See Jones, 491 U.S. at

381;   Missouri    v.    Hunter,       459    U.S.     359,   366     (1983).        If   a

defendant’s     single       course    of    conduct    violates          more   than   one

statute, a court generally may impose multiple punishments if

the legislature authorized those punishments.                        Hunter, 459 U.S.

at 365; United States v. Ayala, 601 F.3d 256, 265 (4th Cir.

2010).      However, it is presumed that the legislature did not

intend   to   authorize       multiple       punishments      under       two    statutory

provisions    if   those      provisions          proscribe   the     “same      offense.”



                                             12
Hunter, 459 U.S. at 366 (citing Whalen v. United States, 445

U.S. 684, 691-92 (1980)).

      In determining whether two provisions proscribe the same

offense, we apply the test set forth in Blockburger v. United

States,    284      U.S.   299     (1932).        Ayala,    601   F.3d    at     265.          In

Blockburger, the Supreme Court stated that when the “same act or

transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there

are two offenses or only one, is whether each provision requires

proof of a fact which the other does not.”                    284 U.S. at 304.

      In applying this test, we consider exclusively the legal

elements of the different offenses, not the particular facts of

the case at issue.           See Blockburger, 284 U.S. at 304; Iannelli

v. United States, 420 U.S. 770, 785 n.17 (1975); Whalen, 445

U.S. at 694 n.8; see also Ayala, 601 F.3d at 265; United States

v.   Allen,    13     F.3d   105,      109   n.4    (4th    Cir.    1993).               If   the

offenses, viewed comparatively, each require proof of at least

one different element, then the offenses are not the “same” and

multiple      punishments        are   presumptively        valid       absent       a    clear

showing of contrary Congressional intent.                         Ayala, 601 F.3d at

265 (quoting United States v. Terry, 86 F.3d 353, 356 (4th Cir.

1996)).       However,       two    different       statutes      are    considered           as

defining      the    “same       offense”    when     one    offense      is     a       lesser

included offense of the other.                    Rutledge v. United States, 517

                                             13
U.S. 292, 297 (1996); see, e.g., Ball v. United States, 470 U.S.

856, 861-864 (1985) (concluding that multiple prosecutions were

barred because statutes directed at “receipt” and “possession”

of a firearm amounted to the “same offense” because proof of

receipt “necessarily” included proof of possession); Whalen, 445

U.S. at 691-695 (concluding that two punishments could not be

imposed because rape and felony murder predicated on the rape

were the “same offense”); Brown                v. Ohio, 432 U.S. 161, 167-168

(1977) (confirming conclusion that offense of “joyriding” was a

lesser included offense of auto theft).

      In   the   context    of    these        principles,     we    consider    the

elements of the charged offenses at issue here, assault with the

intent to commit murder, punishable under 18 U.S.C. § 113(a),

and attempted murder, punishable under 18 U.S.C. § 1113.                         The

elements of assault with the intent to commit murder are: 1)

assault;   and   2)   the   specific       intent    to   commit     murder.     See

United States v. Perez, 43 F.3d 1131, 1137 (7th Cir. 1994).

      We observe that the crime of “assault” is not defined under

federal statutory law, and that this circuit has not addressed

the   required    elements       of   a        criminal     assault.        We   have

recognized, however, that other courts uniformly have held that

federal    statutes   criminalizing            particular    types     of   assaults

incorporate the common law definition of “assault.”                     See United

States v. Passaro, 577 F.3d 207, 217-18 (4th Cir. 2009).                          At

                                          14
common   law,   an    assault      is   committed   when   a   person   willfully

attempts to inflict injury on another, or threatens to inflict

injury on another, coupled with an apparent present ability to

do so, causing a reasonable apprehension of immediate bodily

harm.    United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir.

1976); United States v. Bell, 505 F.2d 539, 540 (7th Cir. 1974).

In the present case, the jury instructions defining “assault”

apply this common law definition.

      Attempted murder, like any attempt to commit a crime, is a

separate offense from the crime intended by the attempt.                        See

United   States      v.   Pratt,    351   F.3d   131,   135    (4th   Cir.   2003).

Although there is no federal statutory definition of “attempt,”

we have explained that the elements of an “attempt” are:

      (1) the defendant had the requisite intent to commit a
      crime; (2) the defendant undertook a direct act in a
      course of conduct planned to culminate in his
      commission of the crime; (3) the act was substantial,
      in   that  it   was  strongly  corroborative   of  the
      defendant’s criminal purpose; and (4) the act fell
      short of the commission of the intended crime due to
      intervening circumstances.

Id.

      The Supreme Court has explained that under the common law,

the conduct required to prove an “attempt” includes an “overt

act” constituting a “substantial step” toward completion of the

intended offense.          United States v. Resendiz-Ponce, 549 U.S.

102, 106 (2007); see Braxton v. United States, 500 U.S. 344, 349


                                          15
(1991).    The jury instructions in the present case stated, among

other   things,          that   proof     of    a    “substantial     step”    toward   the

commission of murder was required to convict Bird of attempted

murder.        A separate instruction defined the term “substantial

step” as a “firm, clear, and undeniable action to accomplish”

murder.

       The issue whether a defendant has engaged in a “substantial

step”     is        a     question      requiring          review     of   the    factual

circumstances of a particular case.                        United States v. Neal, 78

F.3d 901, 906 (4th Cir. 1996).                         We have explained that the

presence       of    certain     facts     provide      strong      corroboration     of   a

defendant’s         criminal     intent        and   may   constitute      a   substantial

step    toward          commission   of    a    substantive      crime.        Such   facts

include:   (1)          lying   in   wait,      searching     for,    or   following    the

contemplated victim; (2) reconnoitering the place contemplated

for the commission of the crime; (3) possession of materials to

be employed in the commission of a crime; and (4) possession or

fabrication of materials to be used in committing the crime at

or near the place chosen for its commission.                         Pratt, 351 F.3d at

135.

       Here, Bird acknowledges that an initial comparison of the

elements of the two crimes at issue reveals that each contains

an element that the other does not.                        Attempted murder requires

proof of a “substantial step” toward the commission of murder,

                                                16
while assault with the intent to commit murder requires proof of

an “assault.”        Bird argues, however, that one who commits an

assault    coupled    with    the   specific     intent     to    commit   murder

necessarily takes a “substantial step” toward the commission of

murder.    Thus, Bird contends that attempted murder is a lesser-

included offense of assault with intent to commit murder, and

that    multiple     convictions        and   sentences     for    these    “same

offenses” violate double jeopardy principles.

       Bird cites no authority in support of this argument, and we

observe that no federal appellate court has addressed this issue

in a published opinion.           To satisfy the plain error standard of

review, however, Bird must show that the error committed by the

district court was plain under established law.                   See Olano, 507

U.S. at 734.

       In United States v. Beasley, 495 F.3d 142, 149 (4th Cir.

2007), we explained the limited nature of plain error review.

There, we examined the timeliness of an information filed under

21 U.S.C. § 851(a) for purposes of seeking enhanced punishment

for a repeat drug offender.             Id. at 145.       We held that in the

absence of controlling Supreme Court or circuit precedent, we

could not say that the district court committed plain error in

holding that the information, which was filed after the jury was

selected   but     before    it   was   sworn,   was   timely     filed    “before

trial” as required by the statute.            Id. at 149.

                                         17
       We emphasized in Beasley that to qualify as plain error,

the error must be plain under “current law.”            Id. at 149 (citing

Olano, 507 U.S. at 734).        We further explained that for purposes

of plain error review, it is sufficient that an error be plain

at the time of appellate consideration.             Id. at 149-150 (citing

Johnson v. United States, 520 U.S. 461, 468 (1997)).

       In the case before us, there was no controlling Supreme

Court or circuit precedent on this double jeopardy issue when

Bird   was   sentenced   by   the   district   court,    and    there    is   no

controlling precedent on that issue today.            Therefore, we cannot

conclude that the district court plainly erred under established

law in imposing convictions and sentences for both attempted

murder   and   assault   with   the   intent   to    commit    murder.        See

Johnson, 520 U.S. at 468; Olano, 507 U.S. at 732; Beasley, 495

F.3d at 149-150.    Accordingly, for the reasons stated, we affirm

the district court’s judgment.

                                                                    AFFIRMED




                                      18
