                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0607n.06

                                          No. 17-1265                                FILED
                                                                                Nov 02, 2017
                                                                            DEBORAH S. HUNT, Clerk
                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                      )
                                               )
       Plaintiff-Appellee,                     )
                                               )
v.                                             )
                                                     ON APPEAL FROM THE UNITED
                                               )
                                                     STATES DISTRICT COURT FOR THE
BIJAN WOODLEY,                                 )
                                                     EASTERN DISTRICT OF MICHIGAN
                                               )
       Defendant-Appellant.                    )
                                               )
                                               )



BEFORE:       DAUGHTREY, McKEAGUE, and DONALD, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Based in large part upon inculpatory

statements given by defendant Bijan Woodley to law enforcement officers, a jury convicted

Woodley of carjacking and of use of a firearm during and in relation to a crime of violence. The

district court imposed consecutive prison sentences of 24 months and 84 months, to be followed

by three years of supervised release. On appeal, Woodley now contends that his confessions—

and the evidence that was uncovered as a result of those confessions—were obtained in violation

of his right to counsel guaranteed by the Sixth Amendment to the United States Constitution. He

also argues that the government’s failure to bring him before a magistrate judge “without

unnecessary delay” should have led the district court to suppress incriminating evidence obtained

prior to that court appearance. Supreme Court and circuit precedent lead us to conclude that
No. 17-1265
United States v. Woodley

Woodley’s allegations of error are without merit. We thus affirm the judgment of the district

court.

                      FACTUAL AND PROCEDURAL BACKGROUND

         On January 8, 2015, a federal grand jury indicted Woodley for a December 30, 2014,

carjacking and for using a firearm during and in relation to that crime of violence. Four days

later, on January 12, Detroit Police Department detective Moises Jimenez, armed with an arrest

warrant, found Woodley in a residence, cuffed him, informed him that he was being arrested for

a carjacking incident, and arranged for the defendant to be transported to police headquarters.

         Woodley arrived at the headquarters at approximately 8:00 p.m. on January 12, and at

8:13 p.m., he initialed and signed a notification-of-rights form that, in pertinent part, provided:

         I understand that:
         1. I have a right to remain silent and that I do not have to answer any questions
         put to me or make any statements.
         2. Any statement I make or anything I say will be used against me in a Court of
         Law.
         3. I have the right to have an attorney (lawyer) present before and during the time
         I answer any questions or make any statement.
         4. If I cannot afford an attorney (lawyer), one will be appointed for me without
         cost by the Court prior to any questioning.
         5. I can decide at any time to exercise my rights and not answer any questions or
         make any statement.
         I understand that these are my rights under the Law. I have not been threatened or
         promised anything, and I now desire and agree to answer any questions put to me
         or to make a statement.

At that time, however, neither Detroit Police Department Detective Richard Houser nor Officer

Lori Dillon informed Woodley that he already had been indicted for the carjacking for which he

was arrested. In fact, as he was signing the waiver-of-rights form, Woodley asked, “What am I

here for?” and later, when Houser stated, “You know why you’re here,” Woodley replied, “I

really don’t.”



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United States v. Woodley

        Over the next two hours, the officers were recorded1 questioning Woodley about his

acquaintances and asking him to identify individuals in various photographs, including a

photograph of Kanee Goode, an individual indicted with Woodley for the December 30

carjacking. Then, at 10:05 p.m., the interrogators showed Woodley a surveillance video taken in

the parking lot of Lou’s Coney Island, a 24-hour restaurant where the carjacking under

investigation had occurred, and asked Woodley whether he was one of the people shown in the

video. Three times, Woodley denied that he was involved in the carjacking, the last time after

Dillon had informed him, “You’ve been indicted for this carjacking . . . . [Y]ou’re going to go

through the federal system.” For approximately 30 more minutes, Woodley continued to deny

any participation in the carjacking, and at 10:50 p.m., Houser offered Woodley the opportunity to

take a cigarette break.

        Curiously, when the interrogation resumed ten or so minutes later, only one of the two

cameras recording the questioning was operational, thus offering a video, but not an audio,

record of the last 51 minutes of the interrogation. However, both Dillon and arresting officer

Jimenez, who was present during the questioning after the cigarette break, offered written

summaries of what Woodley purportedly said during those 51 minutes—approximately three to

four hours after his arrest. According to Dillon:

        WOODLEY confessed to being involved in a carjacking that took place on
        December 30, 2014 at 19100 Mound, Detroit, Michigan. WOODLEY denied
        knowing the other two subjects who assisted WOODLEY during the carjacking.
        WOODLEY stated that he was with two other unknown black males who
        provided the weapons that were used during the robbery.




        1
           The recording equipment at the police headquarters was activated automatically “once you open the door
and turn the lights on” in the interrogation room.

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United States v. Woodley

Jimenez’s report stated:

       ON 01/12/2015 AT APPROXIMATELY 8:10 PM, POLICE OFFICER LORI
       DILLION [sic] ASSIGNED TO THE V[IOLENT] C[RIMES] T[ASK] F[ORCE]
       ALONG WITH DETECTIVE RICHARD HOUSER ASSIGNED TO DETROIT
       HOMICIDE INTERVIEWED SUBJECT: BIJUAN [sic] WOODLEY WHO
       WAS READ HIS CONSTITUTIONAL RIGHTS WHICH HE WAIVED AND
       PROVIDED ACCOUNTS OF HIS PARTICIPATION OF A CAR-JACKING OF
       A WHITE IN COLOR CADILLAC AT A CONEY ISLAND.

       SUBJECT: BIJUAN [sic] WOODLEY WAS TAKEN OUTSIDE BY WRITER
       FOR A CIGARETTE BREAK. SUBJECT WAS THEN BROUGHT BACK TO
       THE INTERVIEW ROOM WHERE WRITER BEGAN QUESTIONING HIS
       INVOLVEMENT IN THE CAR-JACKING. SUBJECT THEN STATE [sic]
       THAT HE WAS PICKED UP IN A TRUCK AND THAT A LONG RIFLE WAS
       ALREADY IN THERE. SUBJECT CONTINUE [sic] TO SAY THAT HE
       KNEW THE VICTIM AND THAT HE HAD FIRST SEEN HIM AT THE GAS
       STATION ACROSS THE STREET FROM THE CONEY ISLAND. SUBJECT
       THEN STATED THAT THEY FOLLOWED THE VICTIM TO THE CONEY
       ISLAND, WHERE HE, THE SUBJECT[,] WAS ARMED WITH A RIFLE AND
       DEMANDED THE VICTIMS’ [sic] ITEMS AND VEHICLE. (ROBBING THE
       VICTIM ITEMS: JEWELRY AND WALLET) SUBJECT THEN STATED
       THAT THEY LEFT THE AREA, TAKING THE VICTIMS [sic] BELONGINGS
       TO INCLUDE THE WHITE IN COLOR CHRYSLER 300 AND WAS
       DROPPED OFF. SUBJECT REFUSED TO GIVE INFORMATION ON THE
       OTHER INDIVIDUALS HE WAS PARTICIPATING WITH AND/OR ANY
       INFORMATION OF THEIR IDENTITY.

       SUBJECT INTERVIEW CONTINUED BY P.O. DILLION [sic] AND
       DETECTIVE HOUSER.

       SUBJECT WAS GIVEN AMPLE OPPORTUNITY TO TAKE A BREAK, GO
       TO THE BATHROOM AND WAS NOT INTOXICATED NOR ON ANY
       DRUGS AT THE TIME OF THE INTERVIEW.

       WRITER COMPLETED THIS REPORT DUE TO THE AUDIO/VIDEO
       EQUIPMENT MALFUNCTION. (NOTIFIED BY P.O. DILLION [sic] OF THE
       MALFUNCTION)

       The next morning, January 13, 2015, Woodley was taken to FBI headquarters, was

advised again of his Miranda rights, and, after waiving those rights a second time, was

interviewed by FBI Special Agent Michael FitzGerald. According to FitzGerald, Woodley told

him that he (Woodley) had been at a bar with his girlfriend during the early morning hours of

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No. 17-1265
United States v. Woodley

December 30, 2014. When his girlfriend left to meet another individual, Woodley obtained a

ride in a Dodge Durango from an individual Woodley claimed he did not know. The two

occupants of the Durango and Woodley eventually drove to the parking lot of the Coney Island

restaurant where Woodley grabbed an assault rifle from the backseat of the Durango, approached

the passenger side of a white Chrysler 300, and tapped on the window of the Chrysler with his

weapon so that the driver of the Chrysler would lower the passenger window. At that time,

Woodley and another individual from the Durango forced the Chrysler’s driver from the vehicle,

got into the Chrysler, and drove it away. Later, Woodley met up with an individual named D.J.,

exchanged the Chrysler for D.J.’s BMW, and drove the BMW to Woodley’s girlfriend’s home.

         By the time the FBI concluded its interrogation of Woodley, it was too late in the day to

have the defendant arraigned. As a result, Woodley did not appear before a magistrate judge

until January 14, 2015, two days after his arrest and six days after the return of the initial

indictment against him.

         Eventually, the grand jury returned a first superseding indictment against Woodley. In

that subsequent charging instrument, the government re-alleged the two crimes with which

Woodley originally had been charged, but also charged the defendant with two additional

carjackings, each of which involved his use of a firearm.

         Prior to trial, Woodley filed numerous motions, including a “Motion to Suppress

Statements and Evidence Taken in Violation of Defendant’s Sixth Amendment Right to

Counsel.” The district court denied that motion, and Woodley proceeded to trial where the

government introduced into evidence the defendant’s confessions, as well as cellphone-tracking

information that placed Woodley at the scene of the December 30 carjacking at the time of the

crime.


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         The government eventually moved to dismiss all counts of the first superseding

indictment against Woodley, except for the two counts relating to the December 30 carjacking.

Those motions were granted, and after the jury convicted Woodley of the two remaining counts,

the district court sentenced Woodley to a below-Guidelines sentence of 24 months on the

carjacking count, to be served consecutively with an 84-month sentence for the use of a firearm

during and in relation to a crime of violence.

         Woodley now appeals, raising two issues for our consideration. First, he contends that he

could not have knowingly waived his Sixth Amendment right to counsel without first being

informed that he already had been indicted for the carjacking crime. Thus, he argues that the

district court erred in denying his motion to suppress any evidence that flowed from his initial

interrogation. Second, Woodley argues for the first time on appeal that the government’s failure

to bring him before a magistrate judge “without unnecessary delay” rendered inadmissible any

incriminating statements or evidence elicited from him during his later confession to the FBI

agent.

                                           DISCUSSION

Waiver of Sixth Amendment Right to Counsel

         When ruling upon the propriety of a district court’s denial of a motion to suppress

evidence, we review factual determinations for clear error and legal conclusions de novo. United

States v. Pacheco, 841 F.3d 384, 389 (6th Cir. 2016). Moreover, we “must consider the evidence

in the light most favorable to the government.” United States v. Erwin, 155 F.3d 818, 822 (6th

Cir. 1998) (en banc).

         In pertinent part, the Sixth Amendment to the Constitution of the United States provides

that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of


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United States v. Woodley

Counsel for his defence.”     U.S. Const., amend. VI.      “[A] person’s Sixth and Fourteenth

Amendment right to counsel attaches only at or after the time that adversary judicial proceedings

have been initiated against him”—“whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 688–89 (1972). Thus,

“once adversary proceedings have commenced against an individual, he has a right to legal

representation when the government interrogates him.” Brewer v. Williams, 430 U.S. 387, 401

(1977) (citing Massiah v. United States, 377 U.S. 201(1964)) (footnote omitted).

       Here, Woodley was indicted for the December 30, 2014, carjacking on January 8, 2015.

As of that date, therefore, his Sixth Amendment right to the assistance of counsel attached.

However, there is no dispute that the questioning of Woodley on January 12 and 13, 2015,

occurred without counsel being present to advise Woodley. Thus, as was the Supreme Court in

Patterson v. Illinois, 487 U.S. 285 (1988), “we are called on to determine whether the

interrogation of [the defendant] after his indictment violated his Sixth Amendment right to

counsel.” Id. at 287.

       In addressing this inquiry, we recognize that the Supreme Court long has held that a

criminal defendant may waive his or her Sixth Amendment right to counsel, even at a critical

stage of the proceedings. Johnson v. Zerbst, 304 U.S. 458, 464–65 (1938). Even so, reviewing

courts must be vigilant to ensure that any such waiver “reflects ‘an intentional relinquishment or

abandonment of a known right or privilege.’” Patterson, 487 U.S. at 292 (quoting Johnson, 304

U.S. at 464). Consequently, the key inquiry becomes: “Was the accused, who waived his Sixth

Amendment rights during postindictment questioning, made sufficiently aware of his right to

have counsel present during the questioning, and of the possible consequences of a decision to

forgo the aid of counsel?” Id. at 292–93.


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United States v. Woodley

       Answering that question, the Supreme Court in Patterson held:

       As a general matter, then, an accused who is admonished with the warnings
       prescribed by this Court in Miranda [v. Arizona, 384 U.S. 436, 479 (1966)], has
       been sufficiently apprised of the nature of his Sixth Amendment rights, and of the
       consequences of abandoning those rights, so that his waiver on this basis will be
       considered a knowing and intelligent one.

Id. at 296 (footnote omitted). Specifically, the Court noted that the Miranda admonitions that a

defendant “had a right to consult with an attorney, to have a lawyer present while he was

questioned, and even to have a lawyer appointed for him if he could not afford to retain one on

his own” were sufficient to make a defendant aware of the right to have counsel present during

any postindictment questioning. Id. at 293. The Court also recognized that Miranda warnings

would serve to make an individual aware of the consequences of a decision to waive Sixth

Amendment rights by letting “petitioner know what a lawyer could ‘do for him’ during the

postindictment questioning:     namely, advise petitioner to refrain from making any such

statements.” Id. at 293–94 (footnote omitted).

       Woodley maintains, however, that his situation is different from that of the petitioner in

Patterson because Woodley was unaware at the time of his waiver of rights and questioning that

he was under federal indictment. In support of that position, Woodley directs us to the decision

of the Second Circuit in the pre-Patterson case of Carvey v. LeFevre, 611 F.2d 19 (2d Cir. 1979).

In Carvey, the Second Circuit ruled that “[w]ithout knowledge of a pending indictment, the

accused cannot appreciate the gravity of his legal position or the urgency of his need for a

lawyer’s assistance.” Id. at 22. Indeed, according to the court, “[h]ad he known that he was not

merely suspected of the crime but actually under indictment, Carvey might well have been more

circumspect in his replies and more insistent on his immediate right to counsel.” Id.




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United States v. Woodley

       Although there is some logical and emotional appeal to Woodley’s argument, we reject it

for two reasons. First, even the Court of Appeals for the Second Circuit has disavowed the

holding in Carvey in light of the Supreme Court’s pronouncement in Patterson. See United

States v. Charria, 919 F.2d 842, 847 (2d Cir. 1990). Second, the danger envisioned in Carvey—

answering questions without knowledge that the detainee was “not merely suspected of the crime

but actually under indictment”—is not present in this case because Woodley did not offer any

statements implicating himself in the carjacking until one hour after Dillon informed him that an

indictment had been returned against him.

       In Patterson, the Supreme Court opted for “a more pragmatic approach to the waiver

question—asking what purposes a lawyer can serve at the particular stage of the proceedings in

question, and what assistance he could provide to an accused at that stage—to determine the

scope of the Sixth Amendment right to counsel.” Patterson, 487 U.S. at 298. Concluding that

there is no “substantial difference between the usefulness of a lawyer to a suspect during

custodial interrogation, and his value to an accused at postindictment questioning,” the Court

determined “that whatever warnings suffice for Miranda’s purposes will also be sufficient in the

context of postindictment questioning.” Id. at 298–99.

       Because we are bound by settled Supreme Court precedent, and because nothing in the

record before us indicates that Woodley’s waiver of rights was not knowing and voluntary, we

conclude that the postindictment questioning of Woodley did not violate his Sixth Amendment

right to counsel. Woodley’s first issue on appeal is without merit.

Alleged Violation of Rule 5 of the Federal Rules of Criminal Procedure

       For the first time on appeal, Woodley argues that the district court also erred in failing to

suppress statements and evidence related to the FBI’s interrogation of him on January 13, 2015.


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No. 17-1265
United States v. Woodley

According to the defendant, that evidence must be suppressed because he was not brought before

a magistrate judge “without unnecessary delay,” as required by Federal Rule of Criminal

Procedure 5(a)(1)(A).

       Because Woodley failed to file a motion to suppress this evidence on this ground in the

district court, we review his allegation for plain error. See, e.g., United States v. Doxey, 833 F.3d

692, 702 (6th Cir. 2016) (Keith, Clay, White), cert. denied, 137 S. Ct. 2204 (2017). Under the

plain-error standard, Woodley must establish: (1) error; (2) that is “plain”; and (3) that affects

substantial rights of the defendant. See United States v. Olano, 507 U.S. 725, 732–34 (1993).

Even if Woodley can establish each of those elements, we will correct a plain, forfeited error

only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

Id. at 736 (citation omitted).

       As explained by the Supreme Court in Corley v. United States, 556 U.S. 303, 306 (2009),

“[t]he common law obliged an arresting officer to bring his prisoner before a magistrate as soon

as he reasonably could.” That mandate now is found in Federal Rule of Criminal Procedure

5(a)(1)(A), which states explicitly that “[a] person making an arrest within the United States

must take the defendant without unnecessary delay before a magistrate judge, or before a state or

local judicial officer as Rule 5(c) provides, unless a statute provides otherwise.”

       In an effort to add “teeth” to the requirement, the Supreme Court, in the exercise of its

supervisory authority, held that defendants’ confessions would be deemed inadmissible at trial

“when obtained during unreasonable presentment delay.” Corley, 556 U.S. at 307 (discussing

the holding in McNabb v. United States, 318 U.S. 332 (1943)). Then, in Mallory v. United

States, 354 U.S. 449, 455 (1957), the Court held a defendant’s confession inadmissible when it

was given seven hours after arrest but prior to presentment before a magistrate judge, even


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United States v. Woodley

though the confession took place “within the vicinity of numerous committing magistrates.” The

principle that “generally rendered inadmissible confessions made during periods of detention that

violated the prompt presentment requirement of Rule 5(a)” thus came to be known as the

McNabb-Mallory rule. United States v. Alvarez-Sanchez, 511 U.S. 350, 354 (1994).

       In passing 18 U.S.C. § 3501, Congress “modified McNabb-Mallory without supplanting

it.” Corley, 556 U.S. at 322. That statutory provision creates a six-hour “safe harbor,” deeming

any delay of six hours or less between arrest and presentment reasonable enough that any

confession given within that time frame will be admissible if “made voluntarily and if the weight

to be given the confession is left to the jury.” 18 U.S.C. § 3501(c). “If the confession occurred

before presentment and beyond six hours, however, the court must decide whether delaying that

long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the

confession is to be suppressed.” Corley, 556 U.S. at 322.

       Woodley’s confession to FBI Agent FitzGerald on January 13 was made more than 15

hours after the defendant’s arrest, but still prior to the time he was taken before a magistrate

judge. Woodley thus argues that adherence to the McNabb-Mallory rule should have led the

district court to suppress any incriminating statements and evidence flowing from that second

admission of guilt. However, Sixth Circuit precedent holds that “waiver of one’s Miranda rights

also constitutes a waiver under McNabb-Mallory,” meaning that “[a] valid Miranda waiver also

waives the prompt judicial warning of one’s constitutional rights.” United States v. Barlow, 693

F.2d 954, 959 (6th Cir. 1982).        Thus, the district court’s admission of Woodley’s pre-

arraignment FBI confession cannot be considered plain error despite the government’s failure to

bring the defendant before a magistrate judge within six hours of his arrest.




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United States v. Woodley

       Furthermore, any error, plain or otherwise, in the admission of Woodley’s second

confession, or of evidence obtained as a result of that confession, must be considered harmless

beyond a reasonable doubt. In his first, admissible confession, Woodley conceded that he was

complicit in the carjacking for which he was indicted. Moreover, at trial, the two victims of the

carjacking crime identified Woodley as the individual who held the assault rifle and forced them

from the Chrysler and onto the ground. There is, therefore, no merit to Woodley’s challenge to

the admissibility of his second confession.

                                        CONCLUSION

       The Supreme Court’s decision in Patterson makes clear that the knowing and voluntary

waiver of a defendant’s Miranda rights is sufficient to establish waiver of his right to counsel

during postindictment questioning.      Furthermore, Sixth Circuit precedent establishes that

Woodley’s second waiver of his Miranda rights prior to his questioning by the FBI also

constituted a waiver under McNabb-Mallory, even though that questioning occurred more than

six hours after the defendant’s arrest. In the absence of any error in the admission of Woodley’s

confessions at trial, we AFFIRM the judgment of the district court.




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