                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                 _____________

                                  No. 97-4050
                                 _____________

United States of America,              *
                                       *
            Appellee,                  *
                                       *    Appeal from the United States
      v.                               *    District Court for the
                                       *    District of Nebraska.
Henry R. Valdez,                       *
                                       *
            Appellant.                 *
                                 _____________

                                  No. 97-4075
                                 _____________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Damion E. Johnson,                     *
                                       *
            Appellant.                 *
                                 _____________

                               Submitted: April 16, 1998
                                   Filed: June 1, 1998
                                _____________
Before McMILLIAN, BOWMAN,1 and MURPHY, Circuit Judges.
                        _____________

BOWMAN, Circuit Judge.

        Damion Johnson and Henry Valdez were tried jointly for attempted bank
robbery, see 18 U.S.C. § 2113 (1994), and using a firearm during a crime of violence,
see id. § 924(c)(1) (1994). A jury convicted each on both counts. Following the trial,
the District Court2 sentenced Johnson to 97 months' imprisonment on the bank robbery
conviction to be followed by 120 months' imprisonment on the weapons conviction and
sentenced Valdez to 175 months' imprisonment on the bank robbery conviction to be
followed by 120 months' imprisonment on the weapons conviction. Each defendant
appeals. For purposes of briefing and argument, the appeals have been consolidated.
We affirm.

                                          I.

      Shortly after 7:00 a.m. on October 1, 1996, bank president John Barry arrived
at Oak Creek Bank in Valparaiso, Nebraska, to open for the business day. Shortly after
he unlocked and entered the bank, two men entered and confronted Barry. The two
men were wearing over their faces dark stocking caps with jaggedly cut eye holes. One
was carrying a shotgun and the other was carrying a bag. The two ordered Barry to
open the bank vault and threatened Barry by telling him he would never see his
granddaughter again. Before Barry could open the vault, another bank employee
entered the bank and discovered the robbery. This prompted the two men to flee,
speeding away in a red pick-up truck.


      1
       The Honorable Pasco M. Bowman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 18, 1998.
      2
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

                                         -2-
         That same morning at approximately 7:30 a.m., a dispatcher alerted Officer
Stanley Funky to the attempted robbery that had just occurred and described both the
vehicle and the male suspects involved. Officer Funky exited the interstate that he had
been patrolling and began traveling a gravel road en route to Valparaiso. At 7:46 a.m.,
Officer Funky observed two male subjects traveling the opposite direction in a red
pick-up truck about six miles south of Valparaiso. Believing that the pick-up truck
matched the dispatcher's description, Officer Funky turned around and began following
the truck. The truck accelerated, so Officer Funky activated his red lights and siren.
A chase ensued that lasted several miles and reached speeds of seventy to eighty miles
per hour. In the meantime, two other officers had created a roadblock in the expected
path of the pick-up truck. As the truck approached the roadblock, one of the troopers
fired a round from his shotgun at the truck. Only then did the truck stop, whereupon
Johnson and Valdez were arrested.

       Pursuant to the arrest, officers seized from Johnson's pocket a butterfly fold-out
knife and from the pick-up truck two black stocking caps with roughly cut eye holes,
a cloth duffel bag, and a sawed-off shotgun. The pick-up truck had been reported
stolen just a few hours before the robbery took place.

       At the police station, FBI Agent Ronnie Ott and Nebraska State Patrol Sergeant
Rod Getting informed Valdez of his Miranda rights. Valdez agreed to speak to the
officers and signed a written waiver. Soon after the questioning began, Valdez
requested an attorney. The interview immediately ceased. A few moments later,
Valdez stated that he had changed his mind and wanted to answer questions. Valdez
went on to provide a detailed account of the attempted robbery. In this confession,
however, Valdez never named the other party with whom he was involved in the
robbery. Instead, Valdez referred to the other individual as his accomplice. Valdez
admitted that he and his accomplice stole the pick-up truck, purchased the stocking
caps, cut eye holes in the stocking caps with a butterfly knife, waited in the bushes at


                                          -3-
the bank for the bank president to arrive, and then entered the bank in an attempt to
execute the robbery.

                                           II.

       Valdez raises two issues separate from those raised by Johnson. Valdez first
argues that his confession was not voluntary and therefore should not have been
admitted as evidence against him. Valdez claims that, after he requested counsel and
the interrogation ceased, the officers held up some papers and stated that Johnson had
already told them everything. Only then, Valdez contends, did he change his mind and
decide to talk. Valdez further claims that he confessed to the robbery without being
readvised of his Miranda rights. The government contends, however, that the agents
never held up papers indicating that Johnson had already spoken with them. Rather,
when the interrogation was initially terminated, the government claims that the agents
stood up to leave, and it was then that Valdez stated that he had changed his mind and
wanted to talk. The government further asserts that Valdez was readvised of his
Miranda rights and waived them a second time.

       The voluntariness of a confession is a question of law and thus entitled to de novo
review. See Miller v. Fenton, 474 U.S. 104, 115 (1985). A district court's factual
findings about the circumstances surrounding a confession, however, are reviewed only
for clear error. See United States v. Hornbeck, 118 F.3d 615, 618 (8th Cir. 1997). To
determine the voluntariness of Valdez's confession, the District Court held a Jackson
v. Denno3 hearing wherein both Agent Ott and Valdez testified as to their version of
the facts surrounding the confession.4 The court specifically found Valdez to be "totally
incredible," Trial Tr. at 428, and therefore believed the government's version.

      3
       Jackson v. Denno, 378 U.S. 368, 376-77 (1964).
      4
         Sergeant Getting had been injured in an explosion just a few days before the
trial started. As a result, he was unable to testify.

                                           -4-
We find no clear error in the District Court's findings of fact, and our de novo review
of the legal issue of the voluntariness vel non of Valdez's confession proceeds on the
basis of those findings.

     Valdez began making a confession to the officers after he had been informed of
his Miranda rights and he had signed a written waiver. Valdez then asked for an
attorney, and the interrogation ceased. Once an accused requests counsel, no further
interrogation may take place until counsel has been made available or "unless the
accused himself initiates further communication, exchanges, or conversations with the
police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Further, the
communication initiated by the accused satisfies Edwards only if it relates to the
investigation. See Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (plurality
opinion). In this case, Valdez himself initiated further communication by telling the
agents as they were leaving the room that he had changed his mind and wanted to
answer questions. Moreover, it was clear that Valdez wanted to talk about the
attempted robbery. Valdez then was readvised of his Miranda rights, waived them
again, and confessed to the attempted robbery. We hold that Valdez's confession was
made knowingly and voluntarily.5

       The second issue Valdez separately raises relates to his sentencing: whether the
District Court erred in denying him a downward departure based on diminished
capacity. The sentencing guidelines provide:




      5
       Even if we believed Valdez that he was not advised of his rights under Miranda
a second time, we would hold the same. There is nothing to suggest that the
interrogation would have caused Valdez "to forget the rights of which he had been
advised and which he had understood moments before." Pittman v. Black, 764 F.2d
545, 547 (8th Cir.) (quoting Wyrick v. Fields, 459 U.S. 42, 49 (1982)), cert. denied,
474 U.S. 982 (1985).

                                         -5-
      If the defendant committed a non-violent offense while suffering from
      significantly reduced mental capacity[,] . . . a lower sentence may be
      warranted to reflect the extent to which reduced mental capacity
      contributed to the commission of the offense . . . .

U.S. Sentencing Guidelines Manual § 5K2.13 (1995). To be considered for a
downward departure under this section, the defendant must have committed a
nonviolent offense. Valdez argues that, because the shotgun used in the attempted
robbery was not loaded and his accomplice was carrying the weapon, his commission
of the robbery should be considered nonviolent. We reject this argument and hold that
Valdez was not entitled to a downward departure for diminished capacity. See United
States v. Mayotte, 76 F.3d 887, 889 (8th Cir. 1996) (holding that "[defendant's]
commission of the offense of bank robbery precludes any 'diminished capacity'
reduction" under § 5K2.13).

                                          III.

       Johnson raises two arguments apart from those set forth by Valdez. First, under
a theory different from Valdez's, Johnson takes issue with the admissibility of Valdez's
confession. At trial, the substance of Valdez's confession was offered through the
testimony of Agent Ott. The court instructed the jury both before it heard Ott's
testimony and after the trial, as part of the jury instructions, not to consider the
confession as evidence against Johnson. Ott also told the jury that Valdez would not
identify in his confession the person who accompanied him during the robbery. And
just as Valdez had done in giving his confession, Ott referred to the unidentified
companion as Valdez's accomplice. Thus, Johnson's name never had to be redacted
from Ott's testimony because Valdez never had mentioned Johnson by name in his
confession. The only part of Valdez's confession relevant to this discussion was the
reference to Valparaiso as being the accomplice's home town, which Ott omitted from
his testimony.


                                          -6-
       Johnson contends that the confession was admitted in violation of his Sixth
Amendment right to confront and cross-examine witnesses against him. More
specifically, Johnson alleges a Bruton violation. See Bruton v. United States, 391 U.S.
123 (1968). In Bruton, the Supreme Court held that limiting instructions are not
constitutionally adequate when "powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the defendant, are deliberately
spread before the jury in a joint trial." Id. at 135-36. The Supreme Court later held in
Richardson v. Marsh, 481 U.S. 200, 211 (1987), that a proper limiting instruction is
constitutionally adequate when "the confession is redacted to eliminate not only the
defendant's name, but any reference to his or her existence."

       We have interpreted Bruton as prohibiting the presentation of a redacted
statement that "draws the jury's attention to the fact that a name was omitted and invites
the jury to fill in the blank." United States v. Long, 900 F.2d 1270, 1280 (8th Cir.
1990) (citing United States v. Garcia, 836 F.2d 385, 390-91 (8th Cir. 1987)). We find
constitutionally problematic cases "in which the redacted statement alerts the jury to the
fact that a name available to the prosecution has been purposely omitted . . . [T]his may
improperly lead the jury to infer that the omitted name must be the defendant's." Garcia,
836 F.2d at 390; see also Gray v. Maryland, 118 S. Ct. 1151, 1156 (1998) (holding that
"redactions that replace a proper name with an obvious blank, the word 'delete,' a
symbol, or similarly notify the jury that a name has been deleted" render the admission
of a codefendant's confession unconstitutional).

      Valdez never mentioned in his confession the name of the person with whom he
had attempted the robbery, and Agent Ott told this fact to the jury. We thus are not
presented with the situation in which a name was actually omitted in the redacted
confession, so we are not concerned with the difficulties presented in that circumstance.
See Garcia, 836 F.2d at 391. We therefore look to whether the codefendant's
confession incriminates the defendant "on its face," United States v. Flaherty, 76 F.3d
967, 972 (8th Cir. 1996) (citing Richardson, 481 U.S. at 211), and inquire whether the

                                           -7-
redacted confession "itself implicates the defendant; there is no violation where the
confession implicates the defendant only when linked to other evidence." United States
v. Jones, 101 F.3d 1263, 1270 (8th Cir. 1996) (citing United States v. Miller, 995 F.2d
865, 867 (8th Cir.), cert. denied, 510 U.S. 1018 (1993)), cert. denied, 117 S. Ct. 1346
and 117 S. Ct. 1566 (1997).

       On its face, Valdez's confession does not itself implicate Johnson. Only by
linking the confession to other evidence could a jury infer that the accomplice was in
fact Johnson. Further, the prosecution did not improperly "[lead] the jury straight to the
conclusion" that the accomplice was Johnson. Long, 900 F.2d at 1280. In fact,
Valdez's confession was redacted to omit his statement that his accomplice was from
the small town of Valparaiso, thus minimizing the chance that the jury would infer that
the accomplice was Johnson, who was actually from Valparaiso. We find no Bruton
violation and hold that the limiting instruction provided by the court to the jury was
constitutionally adequate.

       Second, Johnson argues that the District Court erred by including a prior,
uncounseled juvenile adjudication for burglary and criminal mischief in his criminal
history score. Prior to Johnson's sentencing, the District Court held a hearing on the
issue and received evidence, including testimony from Johnson. We review the court's
findings for clear error. See United States v. Early, 77 F.3d 242, 245 (8th Cir. 1996)
(per curiam).

       A defendant can collaterally attack during federal sentencing an earlier state court
conviction only on the ground that it was obtained in violation of the defendant's right
to counsel. See United States v. Jones, 28 F.3d 69, 70 (8th Cir. 1994) (per curiam).
After the government proves the fact of conviction, the burden then shifts to the
defendant to show that the prior conviction is not constitutionally valid. See Early, 77
F.3d at 245. Johnson claims that his right to counsel was violated because, he asserts,
his waiver of counsel at the juvenile proceeding was not voluntary. For

                                           -8-
support, Johnson states that at the time of the juvenile adjudication he was only
seventeen, inexperienced with the juvenile justice system, and that he knew his mother
and stepfather wanted him to resolve the matter quickly.

        Johnson's juvenile court records show that at his adjudicatory hearing the court
properly advised Johnson and his mother of his rights and that he waived his right to
appointed counsel at that time. At his disposition hearing held some months later,
Johnson appeared with his mother and an attorney. Neither Johnson, his mother, nor
his attorney sought at that time to set aside the adjudication because of an invalid waiver
of counsel. There is simply no support in the record for Johnson's bare assertions that
his waiver was involuntary. We therefore hold that the District Court did not clearly err
in concluding that Johnson failed to establish that his waiver of counsel was invalid.
Accordingly, it was proper for the District Court to use Johnson's juvenile adjudication
in determining his criminal history category.

                                            IV.

        The remaining issues are raised by both Johnson and Valdez. They first argue
that the District Court erred in concluding that the gun used in the robbery was a short-
barreled shotgun. The firearm seized from the truck and later admitted into evidence
was a fully functional "Ted Williams model 200, pump 12 gauge shotgun." Trial Tr. at
362. The barrel of the gun had been shortened to sixteen inches, and the stock had been
partially cut off, leaving a "pistol grip-type stock." Id. at 365. The overall length of the
firearm was twenty-seven and one-half inches.

      Both Johnson and Valdez received a mandatory ten-year sentence under 18
U.S.C. § 924, which provides in part:

       Whoever, during and in relation to any crime of violence . . . uses or
       carries a firearm, shall, in addition to the punishment provided for such

                                            -9-
        crime of violence[,] . . . be sentenced to imprisonment for five years, and
       if the firearm is a . . . short-barreled shotgun, . . . to imprisonment for ten
       years . . . .

18 U.S.C. § 924(c)(1). The ten-year mandatory sentence thus requires that the firearm
be a "short-barreled shotgun," which is defined as:

       [A] shotgun having one or more barrels less than eighteen inches in length
       and any weapon made from a shotgun (whether by alteration, modification
       or otherwise) if such a weapon as modified has an overall length of less
       than twenty-six inches.

Id. § 921(a)(6). This statute proscribes the use of two sub-categories of weapons: 1)
a shotgun with a barrel shorter than eighteen inches, and 2) any weapon made from a
shotgun that is shorter than twenty-six inches. See United States v. Hall, 972 F.2d 67,
70 (4th Cir. 1992). The second sub-category is inapplicable because the firearm at
issue is longer than twenty-six inches.

       Johnson and Valdez argue that the first sub-category is also inapplicable. They
concede that the barrel of the firearm is less than eighteen inches, but they claim that the
firearm is not a shotgun within the meaning of the statute. A "shotgun" is defined as "a
weapon designed or redesigned, made or remade, and intended to be fired from the
shoulder." 18 U.S.C. § 921(a)(5). The two maintain that, because the firearm now has
a pistol grip, it is no longer intended to be fired from the shoulder and, therefore, falls
outside the scope of the definition. The District Court rejected this argument,
interpreting the statute to include the firearm. We review de novo a district court's
statutory interpretation. See United States v. Williams, 136 F.3d 547, 550 (8th Cir.
1998).

      There is no dispute that the shotgun as originally designed and made was
intended to be fired from the shoulder. We conclude that the statute applies to this

                                           -10-
firearm even though, after the stock had been sawed off to create a pistol grip, it no
longer could be fired from the shoulder. The statute, by its express terms, applies to
weapons "designed or redesigned, made or remade." 18 U.S.C. § 921(a)(5) (emphasis
added). We therefore agree with the District Court that the statute requires only that
a firearm be intended at some point during its design or redesign, making or remaking
to be fired from the shoulder. The firearm at issue clearly meets this requirement. The
District Court correctly sentenced Johnson and Valdez to an additional ten years
pursuant to § 924(c)(1).

       Johnson and Valdez next contend that the District Court erred in enhancing their
sentences for reckless endangerment during their flight from police officers. The
sentencing guidelines provide for a two-level enhancement "[i]f the defendant recklessly
created a substantial risk of death or serious bodily injury to another person in the
course of fleeing from a law enforcement officer." U.S. Sentencing Guidelines Manual
§ 3C1.2 (1995). "Reckless" is when a "defendant was aware of the risk created by his
conduct and the risk was of such a nature and degree that to disregard that risk
constituted a gross deviation from the standard of care that a reasonable person would
exercise in such a situation." Id. § 2A1.4 (1995), comment. (n.1). The District Court
found that Johnson and Valdez recklessly endangered the lives of other motorists and
at least three state troopers. We review a district court's finding of recklessness for
clear error. See Hobbs v. Evans, 924 F.2d 774, 775 (8th Cir. 1991) (per curiam).

       We first note that Valdez's sentence can be enhanced under the reckless-
endangerment provision even though Johnson was identified as the driver of the truck.
See U.S. Sentencing Guidelines Manual § 3C1.2, comment. (n.5) ("Under this section,
the defendant is accountable . . . for conduct that he aided or abetted . . . .). At trial,
Agent Ott testified that Valdez admitted to waving the shotgun during the car chase in
the hope that whoever was chasing them would see the shotgun and back off. See Trial
Tr. at 458. That testimony, coupled with the fact that Valdez presented no evidence


                                          -11-
to the contrary, leads us to conclude that Valdez aided and abetted Johnson during the
course of the chase.

        We now turn to the question of whether Johnson and Valdez's actions during their
flight recklessly created a substantial risk to others. Johnson attempted to flee from
police by driving seventy to eighty miles per hour on a gravel road for at least four miles
with Officer Funky in pursuit. The chase ended only after Johnson and Valdez reached
a roadblock set up by two other officers and a round from a shotgun was fired at the
truck. We believe the District Court did not clearly err in finding that this constituted
reckless endangerment. See United States v. Sykes, 4 F.3d 697, 700 (8th Cir. 1993)
(per curiam) (upholding finding of reckless endangerment under § 3C1.2 where police
had to pursue defendant after defendant sped off in vehicle and police had to force
defendant off the road to apprehend him). As the court found, the officers involved in
the chase and motorists and pedestrians in the area were placed at substantial risk.
Johnson and Valdez claim that their conduct falls short of recklessness because the
flight took place in daylight, it occurred on county roads in a rural area, and no other
vehicles or pedestrians were encountered during the pursuit. We find this argument
meritless. We do not interpret § 3C1.2 to require that a high speed chase occur at night,
in an urban area, or that any other vehicles actually ended up in harm's way. Further,
their argument does not account for the risk to the officers involved. The District Court
did not err in enhancing Johnson and Valdez's sentences for reckless endangerment.

       Finally, Johnson and Valdez contend that their sentences should not have been
enhanced for obstruction of justice. The sentencing guidelines provide for a two-level
sentence enhancement "[i]f the defendant willfully obstructed or impeded, or attempted
to obstruct or impede, the administration of justice during the investigation, prosecution,
or sentencing of the instant offense." U.S. Sentencing Guidelines § 3C1.1 (1995). This
can include an attempt to harm a witness. See id. § 3C1.1, comment. (n.3(a)); United
States v. Adipietro, 983 F.2d 1468, 1479 (8th Cir. 1993).


                                          -12-
       Here, the government moved to enhance the defendants' sentences on the ground
that they had attempted to harm a witness--the bank president. The District Court heard
evidence, including testimony from Johnson, and found that Johnson and Valdez
willfully attempted to have the bank president harmed. We will review this finding for
clear error. See United States v. Moss, 138 F.3d 742, 745 (8th Cir. 1998). We will
review de novo the question of whether the defendants' conduct warrants an
obstruction-of-justice enhancement. See United States v. Eagle, 133 F.3d 608, 611 (8th
Cir. 1998).

       The government presented evidence that Johnson and Valdez attempted to have
the bank president harmed while they were awaiting trial and in custody at the
Lancaster County Jail in Lincoln, Nebraska. Melvin Denny Lear, a friend of both
Johnson and Valdez, testified that he had a phone conversation with Johnson in which
Johnson talked about wishing something bad would happen to the bank president. Lear
also testified that he had phone conversations with Valdez in which Valdez asked Lear
whether he could get a gun and Valdez talked about getting a bunch of guys and doing
something to the bank president. Lear denied that any of the threats were serious. Lear
further denied taking any steps to harm the bank president. The District Court found
that, as to these denials, Lear was lying.

       Several other witnesses testified. Jim Hughes, Johnson's uncle, testified that,
during a conversation with Johnson at the jail, Johnson told Hughes that he wanted to
escape and kill the bank president. Hughes also testified that, during a conversation
with Lear, Lear said to Hughes that Johnson talked about wanting to escape in order to
"do the bank manager," which Hughes interpreted as meaning to kill the bank manager.
Sentencing Tr. at 82-83. Lisa Hanks testified that Lear asked her to drive Lear and his
friends to Valparaiso "so that he could kick John Berry's [sic] [the bank president's]
ass." Id. at 58. Robert Nelson also gave testimony about a conversation with Lear in
which Lear "said he was going to get a couple other guys to go hurt some president and
he wanted me to be involved in the beat down." Id. at 100. Nelson

                                         -13-
testified that Lear explained that two of Lear's friends got "narked on." Id. at 101.
Nelson recalled Lear naming Henry Valdez as one of those friends. Finally, Kenneth
Anderson testified that he and a friend, Corky Graves, visited Valdez at the jail. On the
way home from the jail, Graves said that Valdez had asked Graves to either "knock off
the bank president or get in touch with someone who could." Id. at 119.

       Johnson and Valdez claim that the testimony of Hughes, Hanks, and Nelson was
not credible. A district court's credibility determinations, however, are "virtually
unreviewable on appeal." United States v. Heath, 58 F.3d 1271, 1275 (8th Cir.), cert.
denied, 516 U.S. 892 (1995). Based on the testimony of these witnesses, we conclude
that the government, needing only to prove by a preponderance of the evidence that
Johnson and Valdez attempted to have the bank president harmed, see United States v.
Hammer, 3 F.3d 266, 272 (8th Cir. 1993), cert. denied, 510 U.S. 1139 (1994), satisfied
its burden of proof, and that the District Court did not clearly err in its finding that the
defendants attempted to have the bank president harmed. We further hold that this
conduct is sufficient as a matter of law to warrant a two-level enhancement for
obstruction of justice.

                                            V.

        We have considered all the issues that Johnson and Valdez have raised. We
conclude that none has merit. In each of the appeals, the judgment of the District Court
is affirmed.

       A true copy.

              Attest:

                      CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


                                           -14-
