                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________          FILED
                                                U.S. COURT OF APPEALS
                             No. 09-11553         ELEVENTH CIRCUIT
                                                     MARCH 9, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                        CLERK

               D. C. Docket No. 08-00041-CR-FTM-29-DNF

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

LEE COBB,

                                                         Defendant-Appellant.


                       ________________________

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

                              (March 9, 2010)

Before TJOFLAT, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Lee Cobb, through counsel, appeals from his convictions for: (1) possession

with intent to distribute crack cocaine; (2) using his residence for the purpose of

storing, distributing, or using cocaine and crack cocaine; (3) distribution of crack

cocaine; and (4) possession of a firearm as a convicted felon. On appeal, he argues

that his convictions should be reversed because the district court erred in finding

that he received Miranda1 warnings before he made inculpatory statements to

police officers, and, as result, erroneously denied his motion to suppress his

statements to the officers. Specifically, Cobb argues that: (1) he did not receive

Miranda warnings before the police officers who searched his apartment

interrogated him; (2) even if he did receive Miranda warnings at the beginning of

the search, the officers were required to re-administer these warnings before they

interrogated him in his bedroom; and (3) any waiver of his Miranda rights was

involuntary. For the reasons set forth below, we affirm Cobb’s convictions, but

sua sponte remand this case for the limited purpose of correcting a clerical error in

the district court’s final judgment.

                                              I.

      In a superseding indictment, a federal grand jury indicted Cobb for:

(1) possession with intent to distribute crack cocaine, in violation of 21 U.S.C.



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          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                               2
§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2 (“Count 1”); (2) using his residence

for the purpose of storing, distributing, or using cocaine and crack cocaine, in

violation of 21 U.S.C. § 856(a)(2) and 18 U.S.C. § 2 (“Count 2”); (3) distribution

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

§ 2 (“Count 3”); and (4) possession of a firearm as a convicted felon, in violation

of 18 U.S.C. §§ 922(g)(1), 924(e), and 2 (“Count 4”). Cobb entered a plea of not

guilty on all counts and proceeded to trial.

      At trial, Phil McDonald, a Drug Enforcement Administration task force

agent employed by the Cape Coral Police Department, testified that, in February

2008, he and other officers executed a search warrant authorizing the search of

Cobb’s apartment. While he was inside of Cobb’s apartment, McDonald observed

cocaine pipes on the kitchen table and utensils typically used to manufacture crack

cocaine on top of a microwave oven. In addition, McDonald also saw a coffee pot,

inside of which he discovered two baggies containing substances that later tested

positive for crack cocaine. Inside of a kitchen drawer, McDonald found pieces of

mesh that could be used to smoke crack cocaine, and digital scales that could be

used to measure cocaine or crack cocaine.

      McDonald further testified that, after he finished searching the kitchen, he

provided Cobb with Miranda warnings. McDonald averred that he did not speak



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with Cobb until after he read him his rights under Miranda. As part of the

Miranda warnings, McDonald informed Cobb that he had the right to remain

silent, as well as the right to speak with an attorney. After hearing the Miranda

warnings, Cobb agreed to talk to McDonald. Cobb told McDonald that he was

aware of, and responsible for, the drugs and the drug paraphernalia in his

apartment. Cobb also stated that he and other individuals who lived in the

apartment sold crack cocaine. At the time that Cobb made these statements, both

Cobb and McDonald were in the kitchen.

      McDonald further testified that, after he spoke with Cobb, he proceeded to

search the master bedroom, in which he found additional drug paraphernalia,

cocaine, and crack cocaine. While he was in the master bedroom, McDonald again

spoke with Cobb, and asked him about the drugs in the bedroom. McDonald

averred that he did not engage in making promises or coercion in order to convince

Cobb to speak with him, and that Cobb was “cooperative.” While they were in the

bedroom, Cobb told McDonald that he and Leeann Chambers used the bedroom.

He further stated that he was aware of, and was responsible for, the items in the

bedroom. In addition, Cobb stated that he and the other individuals who lived in

the apartment sold at least an ounce of narcotics every day. When McDonald




                                          4
asked Cobb about the pipes in his apartment, Cobb stated that he sometimes

permitted his narcotics customers to smoke crack cocaine in the apartment.

      McDonald further testified that the officers found a rifle in Cobb’s bedroom.

When McDonald asked Cobb about the rifle, Cobb responded that he was

“holding” it for his son. McDonald reminded Cobb that he was a convicted felon,

and Cobb responded that he was aware that he was not permitted to be around

firearms.

      Klaus Chambers, who lived with Cobb, testified that he had assisted Cobb

with drug trafficking by picking up cocaine on his behalf and selling crack cocaine

on his behalf. He sold crack cocaine out of Cobb’s apartment. On any given day,

between 10 to 15 people would visit Cobb’s apartment to buy crack cocaine. Cobb

and Leeann Chambers would provide Klaus Chambers with the crack cocaine to

sell to customers.

      Robert Wardrop, a detective employed by the Cape Coral Police

Department, testified that he assisted in searching the master bedroom in Cobb’s

apartment. Wardrop testified that he asked Cobb about sets of coins that he found

in the bedroom, and Cobb responded that he had received the coins in exchange for

crack cocaine. At this point in Wardrop’s testimony, the court sua sponte asked

the parties to approach the bench for a sidebar discussion. During this discussion,



                                          5
the court stated that it was concerned that it was not clear whether Cobb received

Miranda warnings prior to his discussion with Wardrop. The prosecution

informed the court that it could demonstrate that Cobb had received Miranda

warnings before he spoke to Wardrop.

      Thereafter, Wardrop further testified that he did not hear anyone inform

Cobb of his rights under Miranda, did not read Miranda warnings to Cobb, and did

not ask McDonald whether he had read Miranda warnings to Cobb. Wardrop

identified a rifle as the rifle that he and other officers found in Cobb’s bedroom.

At this point during the proceedings, the parties stipulated that Cobb was a

convicted felon at the time the search of his apartment took place.

      Cobb moved to strike Wardrop’s testimony. The prosecution offered to

recall McDonald in order to establish when he informed Cobb of his Miranda

rights. Outside the presence of the jury, the government recalled McDonald, who

testified that he read the Miranda warnings to Cobb verbatim from a card that he

had carried with him on the day of the search. McDonald identified a card as one

that was identical to the card he had carried with him when he searched Cobb’s

apartment. He read the contents of the card aloud. The card informed the arrestee

that he had the following rights: (1) to remain silent; (2) to ask a lawyer for advice;

(3) to have an attorney appointed to represent him if he could not afford an



                                           6
attorney; and (4) to stop answering questions at any time. McDonald stated that,

after he informed Cobb of these rights, he asked Cobb if he understood his rights

and, with these rights in mind, whether he wished to speak to McDonald and the

other officers. McDonald clarified that he had informed Cobb of these rights while

they were in the kitchen, and that this occurred before Wardrop questioned Cobb in

the master bedroom.

      After McDonald concluded his testimony, Cobb’s attorney notified the court

that Cobb had just informed him that McDonald’s testimony was incorrect, and

that Cobb had not received Miranda warnings until he was taken to the police

department, which occurred after the search of his apartment had ended. Based on

this information, Cobb’s attorney made an oral motion to suppress the statements

that Cobb made to the officers during the search of his apartment, and also

requested that the court permit Cobb to testify in support of his motion. The court

granted Cobb permission to testify in support of his motion to suppress.

      Cobb subsequently testified that the officers had handcuffed him as soon as

they entered his apartment to execute the search warrant. The officers did not ask

him any questions until they searched his bedroom. At the time that the

questioning in his bedroom occurred, he previously had been standing outside for

half an hour. McDonald did not inform Cobb of his Miranda rights while they



                                          7
were in his apartment. During the search, Cobb answered some of the officers’

questions. Any statements that he made to the officers at his apartment occurred

before he was informed of his Miranda rights.

      On cross-examination, Cobb denied that an officer informed him of his

Miranda rights in his kitchen. Cobb also denied that an officer questioned him in

the kitchen, asserting that he was questioned only in his bedroom.

      The court denied Cobb’s motion to suppress, finding that the government

had established, by a preponderance of the evidence, that Cobb was informed of

his Miranda rights before he made statements in response to questioning by the

officers. The court noted that McDonald’s testimony and Cobb’s testimony were

in direct conflict, and indicated that it found that McDonald’s testimony was more

credible than Cobb’s testimony. Thus, the court determined that McDonald had

informed Cobb of his rights under Miranda “at a point in time that preceded his

statements in response to questioning by officers.” The court noted that it also

denied Cobb’s motion to strike Wardrop’s testimony.

      Thereafter, Wardrop resumed his testimony before the jury. In addition to

finding coins in Cobb’s bedroom, Wardrop also had discovered gift cards,

cameras, and silverware. When Wardrop questioned Cobb about these items, Cobb

told him that individuals had given these items to him in exchange for crack



                                          8
cocaine. In addition, Cobb was asked about a sign in his bedroom that stated “Call

back tomorrow. Thank you.” He told the officers that he would place this sign on

the door to his apartment so that narcotics customers would not wake him up while

he was sleeping.

      The jury found Cobb guilty as to Counts 1 through 4. The jury’s verdict

form specified that Count 1 charged Cobb with possession with intent to distribute

crack cocaine, and that Count 3 charged Cobb with the distribution of the crack

cocaine. However, the court’s final judgment provided that Cobb’s convictions

under Counts 1 and 3 were both for the possession with intent to distribute crack

cocaine. The court sentenced Cobb to concurrent terms of 180 months’

imprisonment for each count of conviction.

                                           II.

      “We review a district court’s denial of a motion to suppress evidence as a

mixed question of law and fact, with rulings of law reviewed de novo and findings

of fact reviewed for clear error.” United States v. Lindsey, 482 F.3d 1285, 1290

(11th Cir. 2007). In addition, we view the facts “in the light most favorable to the

prevailing party in [the] district court.” Id. It is within the district court’s province

to make credibility determinations, and these determinations are generally




                                            9
conclusive unless the court credits “exceedingly improbable” testimony. United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quotation omitted).

      Under Miranda, officers must advise an individual who is in custody of the

following: (1) his right to remain silent; (2) that, if he chooses to speak, anything

he says can be used against him in court; (3) his right to consult with a lawyer and

have his lawyer be present during interrogation; and (4) an explanation that, if he is

indigent, a lawyer will be appointed to represent him. 384 U.S. at 467-73, 86 S.Ct.

at 1624-27. Statements obtained in violation of Miranda, whether exculpatory or

inculpatory, are not admissible at trial. Id. at 444, 86 S.Ct. at 1612. The

government must “prove by a preponderance of the evidence that the defendant

waived his rights voluntarily, knowingly, and intelligently.” United States v.

Glover, 431 F.3d 744, 748 (11th Cir. 2005). A defendant’s waiver of his Miranda

rights is knowing and voluntary where, “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.” United States v. Beckles, 565 F.3d 832, 840 (11th Cir.)

(quotation omitted), cert. denied, 130 S.Ct. 272 (2009).

       “There is no requirement that an accused be continually reminded of his

rights once he has intelligently waived them.” United States v. Barner, 572 F.3d



                                           10
1239, 1244 (11th Cir. 2009) (quotation omitted); see also Moore v. Dugger, 856

F.2d 129, 133-34 (11th Cir. 1988) (holding, in the habeas context, that the

defendant’s statements were admissible despite the fact they were not preceded by

a repetition of the Miranda warnings, because he previously had received the

Miranda warnings and understood these rights). Even if a district court admits a

defendant’s statement that was obtained in violation of the Miranda rule, the error

does not warrant reversal if it was harmless. United States v. Arbolaez, 450 F.3d

1283, 1292-93 (11th Cir. 2006) (holding that any error in admitting the defendant’s

statement in violation of Miranda was harmless in light of the substantial evidence

against him).

      Here, the district court did not err in denying Cobb’s motion to suppress.

Officer McDonald consistently testified that he read Miranda warnings to Cobb

before any officers questioned him, and Cobb does not point to any evidence

demonstrating that this testimony was “exceedingly improbable.” While Cobb

testified that he did not receive Miranda warnings before officers questioned him

in his bedroom, it was within the district court’s province to determine whether to

credit McDonald’s testimony over Cobb’s testimony. Furthermore, while Cobb

contends that any Miranda warnings he may have received were “stale” by the




                                         11
time he was questioned in his bedroom, officers are not required to continually

re-administer Miranda warnings.

      Finally, although Cobb asserts that any waiver of his Miranda rights was

involuntary and unknowing, he does not provide any explanation as to why the

waiver would be involuntary and unknowing. McDonald testified that he did not

engage in making promises or using coercion in order to induce Cobb to speak to

him, and Cobb does not point to any evidence indicating that he did not understand

his Miranda rights, or was pressured to relinquish them against his will. Thus,

Cobb’s bare assertion that any waiver of his Miranda rights was invalid lacks

merit. Accordingly, viewing the evidence in the light most favorable to the

government, the court did not err in denying Cobb’s motion to suppress because

McDonald’s testimony supported the conclusion that Cobb validly waived his

Miranda rights before responding to the officers’ questions.

      Even if the district court had erred in denying Cobb’s motion to exclude the

statements he made to the officers, this error would have been harmless in light of

the substantial properly admitted evidence against Cobb. The officers found

cocaine, crack cocaine, drug paraphernalia, and a rifle in Cobb’s bedroom. In

addition, Klaus Chambers testified that he sold crack cocaine out of Cobb’s

apartment on Cobb’s behalf. Moreover, Cobb stipulated that he was a convicted



                                         12
felon. As a result, even if the district court had excluded Cobb’s statements,

substantial evidence supported the jury’s determination that Cobb possessed crack

cocaine with the intent to distribute it, distributed crack cocaine, used his apartment

for the purpose of distributing crack cocaine, and possessed a firearm as a

convicted felon. Accordingly, we affirm Cobb’s convictions.

                                          III.

      “We may sua sponte raise the issue of clerical errors in the judgment and

remand with instructions that the district court correct the errors.” United States v.

Massey, 443 F.3d 814, 822 (11th Cir. 2006); see also United States v. Anderton,

136 F.3d 747, 751 (11th Cir. 1998) (remanding to the district court to correct a

clerical error when the judgment cited 18 U.S.C. § 2242(a)(4)(B), but the

defendant actually violated 18 U.S.C. § 2252(a)(4)(B)). “[I]t is fundamental error

for a court to enter a judgment of conviction against a defendant who has not been

charged, tried, or found guilty of the crime recited in the judgment.” Massey, 443

F.3d at 822 (quotation omitted).

      We sua sponte note that there is a clerical error in the court’s judgment.

Count 3 of the superseding indictment charged Cobb with distribution of crack

cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), while Count 1 charged

Cobb with possession with intent to distribute crack cocaine, in violation of



                                          13
§ 841(a)(1) and (b)(1)(C). The jury’s verdict form reflects that it convicted Cobb

of these offenses as they were set forth in the superseding indictment. The court’s

final judgment in this case, however, reflects that Cobb’s convictions for both

Counts 1 and 3 were for the offense of possession with intent to distribute crack

cocaine. Because the district court’s judgment incorrectly states that Cobb’s

conviction for Count 3 was for possession with intent to distribute crack cocaine,

instead of distribution of crack cocaine, we remand this case for the limited

purpose of correcting the clerical error in the district court’s final judgment.

      CONVICTION AFFIRMED, REMANDED WITH INSTRUCTIONS.




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