                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          FEB 11 2005
                                 TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 03-3334
          v.                                             (D. Kansas)
 QUINCY DARNELL BLUE,                          (D.C. No. 03-CR-10058-WEB)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and LUCERO, Circuit Judges.




      Quincy Darnell Blue (“Blue”) was convicted following a jury trial of one

count of bank robbery, in violation of 18 U.S.C. § 2113(a), and one count of

carrying and using a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2. He was sentenced to 300

months in prison for the bank robbery and 60 consecutive months for the firearms




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
charge, and was ordered to pay a $200 fine. 1 On appeal, Blue argues that the

district court erred by failing to suppress his allegedly involuntary admission that

he committed the robbery because questioning authorities employed a “ruse” to

obtain the admission. We affirm.



                                  BACKGROUND

      On the afternoon of March 31, 2003, Blue entered the Home Bank and

Trust in Wichita, Kansas, brandished a handgun, and directed a teller to put

money in a bag. A codefendant, James Monroe Morris, 2 drove his blue Buick

Regal from the bank as the getaway car. A concerned citizen saw Blue and

Morris leave the bank, followed them, and called police with a description of the

getaway vehicle. The defendants were then seen swapping the Buick for a brown,

four-door Cadillac with Kansas license plates, number “UVC-890.” It was



      1
       The district court enhanced Blue’s sentence under the United States
Sentencing Commission, Guidelines Manual (“USSG”), after determining that he
was a career offender under USSG §4B1.1 and that the bank which he robbed was
a “financial institution” under USSG §2B3.1(b)(1). Defense counsel initially
argued that we should remand this case for resentencing in light of the Supreme
Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Counsel
argued that the USSG were wholly unconstitutional and that the enhancements
were found by the judge rather than the jury. Both parties briefed these issues.
At oral argument, however, which occurred two days after the Supreme Court
issued United States v. Booker, 125 S. Ct. 738 (2005), Blue’s counsel withdrew
her Blakely arguments. We therefore do not consider them.
      2
          Morris reached a plea agreement with the prosecution.

                                          -2-
subsequently determined that this vehicle was owned by Blue’s girlfriend, Laila

Hail (“Hail”).

      Two officers on patrol heard a report relaying this information over the

police radio. They then saw the brown Cadillac with the UVC-890 license plates

occupied by two men matching the suspects’ description. The vehicle was

stopped, and officers saw a loaded .25-caliber handgun in plain view on the front

seat. Officers also found a coat in the back seat that was thought to be worn by

Blue when he committed the robbery. Also plainly visible was a large wad of

bills sticking out of Blue’s pants pocket. Both men were ordered to exit the

vehicle. Blue was arrested and searched, and officers retrieved the money, which

totaled $1,927 and which included “bait bills” from the bank.

      Blue was taken to the Federal Bureau of Investigation offices around

5:30 p.m. that day. He was placed in an interview room, offered a can of soda,

and was fingerprinted and photographed. Agent Tracy Jenkins then presented

Blue with an “Advice of Rights” form informing Blue of each of his Miranda

rights. The form also advised Blue that he would waive his rights by signing the

form. Blue wrote the word “yes” and his initials next to each right, and then

signed the document.

      When Jenkins first asked about the bank robbery, Blue denied his

involvement in the crime and stated that he had borrowed Hail’s brown Cadillac


                                        -3-
for a drug deal. He stated that the cash was his and denied owning or using the

handgun. Jenkins responded by telling Blue that if the gun was not his, it must be

Hail’s. The officer then laid Hail’s criminal history records and mug shots in

front of Blue.

      Jenkins then left the room and told an officer to send a text message,

already composed by Jenkins, to Jenkins’ pager. Jenkins returned to the interview

and handed the pager to Blue so Blue could read the message for himself. Jenkins

testified that the message was part of a “simulated information” technique. The

message purported to be from another FBI officer who was en route to interview

Hail. The message asked Jenkins what questions he wanted asked of Hail. The

message also said something to the effect that Hail was already in custody and

could be brought to the FBI office. The interview was then halted, but a short

time later, without further questioning, Blue changed his story and admitted to the

bank robbery and gave agents specific details about the crime.

      Blue filed a pretrial motion to suppress his statements on the grounds that

(1) they were the fruit of an illegal detention and search and (2) they were

involuntary. The district court conducted a hearing on Blue’s motion 3 and then



      3
       The issue of voluntariness was raised in a supplemental motion below after
the suppression hearing was held. Blue, however, did not request a second
hearing because the voluntariness motion was based on testimony already
provided at the suppression hearing.

                                         -4-
denied the motion to suppress, finding that the search and detention were not

illegal and that Blue’s will was not overcome by the agents’ trickery.

      The case went to trial, where Blue testified that the “simulated

information” did not work because he never actually believed that Hail was in

custody. He also testified that he never admitted committing the robbery. The

following testimony was elicited from Blue on direct examination:

              [THE DEFENDANT]: . . . So then he [Agent Jenkins] got
      up . . . and he came back and he had the pager and he say, like “You
      say that gun wasn’t yours?” I say, “Man, I told you it wasn’t mine,”
      and then he’s like, “Well we going to go get your girlfriend and we
      going to ask her about it,” and he showed me in this pager. . . . It
      says, “We got the Layla Hale [sic] girl . . . in custody and the boy,”
      talking about her son, and it was like, “What you want us to charge
      the girl with?” And it said, “What you want us to do with her boy?”
              . . . I said, “If you got Layla, go and get her and bring her. Let
      me see her.” He said, “Why would I do that?” I said, “Cause you
      ain’t got her,” and he like, “Yeah we got her.” I said, “Well, I don’t
      think you got her,” and then I just—we just left it at that and we just
      sit.
              Q [THE PROSECUTOR]: Okay. So when you were making
      those statements to the FBI with what appears to say you are
      acknowledging you participated in the bank robbery, were you
      making an admission that you had committed the robbery?
              A: No . . . I wasn’t actually admitting that I committed no
      robbery. I told them, I kept telling him I didn’t know nothing about
      no robbery and he kept insinuating I knew something about a
      robbery, so I just started, when he say, “You went in there with a
      mask on,” I said, “Yeah if you say so.”
              . . . I start getting agitated by him saying, “You did this. You
      did this. You did this,” and I kept telling him I didn’t, so I just like,
      “Whatever you say, okay.”




                                       -5-
Tr. of Jury Trial at 56-57, R. Vol. IV (emphasis added). On cross examination,

Blue testified similarly:

             Q [THE PROSECUTOR]: Mr. Blue, this story that your
      lawyer questioned all the FBI agents about, about this information
      about Layla Hale [sic], that didn’t really have any effect on you, did
      it?
             A [THE DEFENDANT]: Actually, you know, when he showed
      me the pager, you know, I mean, it didn’t scare me.
                                      ...
             Q: So the FBI—you’re saying the FBI had her son in custody?
      That’s what they told you?
             A: Yes, sir. That’s what this pager say. What he say this
      pager, he said, “We got the Layla girl in custody and we got the
      boy.” They say, “What you want us to charge Layla Hale with and
      what you want us to do with this boy?”
             Q: And you said you told them to bring them—
             A: I told them, “If you got Layla Hale, bring her here and let
      me see her.”
             Q: And they didn’t have her, did they?
             A: He told me, “We don’t have Layla Hale.”
             Q: So the big ruse didn’t work on you, did it?
             A: It didn’t work.
             Q: So all of the questions about the ruse are just—
             A: I mean, he was trying to get something that he never had
      out of me and—
             Q: And it didn’t work on you, did it?
             A: And I never admitted to nothing no way.

Id. at 61-63, R. Vol. IV (emphasis added). Blue was convicted and timely filed

this appeal.




                                        -6-
                                   DISCUSSION

      Blue argues that the district court erred by admitting his involuntary

admissions about the robbery at trial. He asserts that the officers’ statements that

they were going to arrest and charge Hail were misrepresentations because they

had no reason to believe that she was involved in the robbery. Blue also agues

that he testified at trial only that he did not believe that Hail was in custody; Blue

maintains that he never testified that he disbelieved that Hail would be charged

for the firearm.

      We review the question of voluntariness de novo. United States v. Muniz,

1 F.3d 1018, 1021 (10th Cir. 1993). We examine the entire record and make an

independent determination of voluntariness. United States v. Glover, 104 F.3d

1570, 1579 (10th Cir. 1997). The district court’s factual findings underlying a

voluntariness determination are reviewed for clear error. Muniz, 1 F.3d at 1021.

      In determining whether a particular confession is coerced and therefore

involuntary, we consider the following factors: “(1) the age, intelligence, and

education of the defendant; (2) the length of the detention; (3) the length and

nature of the questioning; (4) whether the defendant was advised of her

constitutional rights; and (5) whether the defendant was subjected to physical

punishment.” Glover, 104 F.3d at 1579; see also Schneckloth v. Bustamonte, 412

U.S. 218, 226 (1973). “The determination of voluntariness is based on the


                                          -7-
totality-of-the-circumstances; none of the single factors listed above is

determinative.” Glover, 104 F.3d at 1579.

      “Incriminating statements obtained by government acts, threats, or promises

that permit the defendant’s will to be overborne run afoul of the Fifth Amendment

and are inadmissible at trial as evidence of guilt.” Id. Without more, however,

misrepresentations, ruses, and trickery by questioning authorities do not render a

voluntary confession involuntary. See Frazier v. Cupp, 394 U.S. 731, 739 (1969)

(interrogator’s misrepresentation to suspect that accomplice had already confessed

did not render suspect’s confession coerced); United States v. Unser, 165 F.3d

755, 766-67 (10th Cir. 1999) (agents employed a “measure of subterfuge” by

inducing defendant to return to their offices when defendant did not know he was

the target of a criminal investigation, and defendant believed officers merely

wanted to help him retrieve his snowmobiles; nonetheless, defendant’s will was

not overborne and statements were admissible); Lucero v. Kerby, 133 F.3d 1299,

1311 (10th Cir. 1998) (defendant’s inculpatory statements were admissible even

though officer falsely told defendant that his fingerprints had been found at the

crime scene); but see Rogers v. Richmond, 365 U.S. 534, 539 (1961) (threats to

take family members into custody may render voluntary confession involuntary);

United States v. Alcarez-Mora, 246 F. Supp. 2d 1146, 1154-55 (D. Kan. 2003)

(officer’s statement to defendant that if he failed to cooperate he would “never


                                         -8-
see his daughters again,” in totality of the circumstances, caused confession to be

coerced).

      Here, it is abundantly clear that Blue’s will was not overcome by the

“simulated information” ruse. First, there is nothing in the record demonstrating

that Blue was susceptible to coercion because of age, inexperience, or lack of

intelligence. He is 29 years old, reportedly has a GED, and has experience within

the criminal justice system. He was also advised of and waived his Miranda

rights. Additionally, the questioning was not unduly long and Blue was not

subjected to any sort of physical punishment. Second, and more importantly,

according to Blue’s own testimony at trial, the “ruse” had no effect on him. He

testified repeatedly that the simulated information “did not scare him” and “did

not work.” Blue therefore never believed that his girlfriend was in custody or was

going to be charged with a firearms offense. 4 In fact, at trial, Blue denied

admitting anything as a result of Jenkins’ misrepresentations. We therefore

cannot conclude that Blue was coerced into making the inculpatory statements,

and the district court did not err by admitting the statements.



      4
       Agent Jenkins maintained at trial that officers planned to question Hail
about the incident because Blue and Morris were arrested while driving her car,
and because it was her coat that was found in the backseat of the car. The “ruse,”
therefore, was only deceiving to the extent that it suggested that officers were
already on their way to question Hail or that Hail was already in custody. Hail
was indeed questioned the day after the robbery.

                                         -9-
                         CONCLUSION

For the foregoing reasons, we AFFIRM Blue’s conviction.

                                      ENTERED FOR THE COURT


                                      Stephen H. Anderson
                                      Circuit Judge




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