                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          May 2, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                          No. 11-6154
                                                  (D.C. No. 5:10-CR-00041-HE-1)
MARK EUGENE JOHNSON,                                       (W.D. Okla.)

             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, McKAY and LUCERO, Circuit Judges.


      Mark Eugene Johnson appeals his jury conviction on one count of bank

robbery, in violation of 18 U.S.C. § 2113(a), and his resulting sentence of life

imprisonment under the federal “three strikes” sentencing statute, 18 U.S.C.

§ 3559(c). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           I

                                 Factual Background

      On January 22, 2010, a black man with a goatee, wearing a brown blazer,

striped wind pants, a purplish scarf, and sandals, robbed the Oklahoma Fidelity Bank

on Second Street in Edmond, Oklahoma (a bank insured by the Federal Deposit

Insurance Corporation (FDIC)). The robber set a silver cylinder wrapped in a napkin

on the counter and announced that it was a detonator. Along with the money in her

drawer, the teller gave him “bait bills” and a dye pack. Carrying the money in his

hand, the man left the bank while cautioning the teller not to let anything happen to

the detonator. The teller hit an alarm, and the employees vacated the premises.

      The dye pack was triggered and expelled red dye when the robber left the

bank. Investigators found currency, the dye pack, and red discoloration on a grassy

area near the bank. Near the money, investigators also found a wallet with a driver’s

license and insurance card naming Mark Johnson. The bomb squad examined the

“detonator” and determined that it was a hoax device.

      Two Edmond police officers in a patrol car heard the radio alert for the robber.

A few blocks from the bank, they spotted and stopped a man matching the suspect’s

description, who turned out to be Johnson. He was wearing a brown blazer and

carrying a purplish scarf and sandals in his left hand. In his right hand he held a

napkin or paper towel stained with a red substance. His hand also was stained with a

red substance.


                                          -2-
      Officer James O’Neill handcuffed Johnson and placed him in the backseat of

the patrol car pending further investigation. A few minutes later a photographer (not

associated with law enforcement) began taking pictures of Johnson. Johnson did not

like being photographed. Johnson got O’Neill’s attention, and without prompting,

said, “hey, let’s get this on with. The money is over there,” while motioning toward

the bank. R., Vol. 3 at 176. O’Neill read Johnson his Miranda rights, but may have

omitted the right to appointed counsel.1 Johnson then said the money had started

leaking and he dropped the money and his wallet by the bank. The officers took

Johnson to the police station for booking.

      At the police station, two agents from the Federal Bureau of Investigation

interviewed Johnson. Special Agent Douglas Samuels testified that he read Johnson

his Miranda rights, and Johnson signed a written acknowledgement form. Johnson

agreed to speak with them without an attorney present. During the interview Johnson

confessed to the bank robbery and spoke about dropping the money when it started

leaking.

                                  Trial Proceedings

      Johnson was indicted on a single count of bank robbery. Before trial, his

counsel raised questions about his mental competency. The first court-ordered


1
       At a pre-trial evidentiary hearing, O’Neill’s summary of his advisement to
Johnson did not include the right to appointed counsel. But the district court did not
explicitly find that the Miranda warnings were incomplete, stating at the end of the
hearing that it did not matter because the statements to O’Neill were volunteered.


                                         -3-
mental evaluation tentatively concluded that Johnson was not competent to be tried,

but expressed concerns that he may be malingering and recommended further

evaluations. The court ordered another mental evaluation, which was performed for

nearly four months by Dr. Christina Pietz, a board-certified forensic psychologist,

and other mental health professionals at the Bureau of Prisons medical center in

Springfield, Missouri. Pietz issued a written opinion that Johnson was malingering,

that he did not suffer from a mental disease or defect, and that he was competent to

understand the proceeding and to assist in his defense. In reaching those conclusions,

Pietz did not perform the tests recommended by the first examiners. After holding a

competency hearing at which Pietz testified about her opinions and why she did not

perform additional tests, the court concluded that Johnson was competent for trial.

       The district court also held a pre-trial hearing on the voluntariness of

Johnson’s statements to law enforcement. After hearing O’Neill’s and Samuels’s

testimony, the court concluded that Johnson’s statements were voluntary and

admissible at trial.

       At trial, Johnson’s theory of defense was that the government had made

numerous assumptions in building its case and had failed to pursue common

investigative techniques that could have negated those assumptions (for example, the

investigators assumed that the red marking on Johnson’s hand was from the dye pack,

but did not test the swab they took of his hand to determine whether the substance

actually was dye). The government requested an “investigative techniques”


                                          -4-
instruction that would inform the jury it had no duty to use all possible methods of

investigation. Overruling Johnson’s objection, the court gave the instruction.

      The jury found Johnson guilty. At sentencing, the determinative issue was

whether Johnson was eligible for sentencing under the three-strikes statute. Johnson

contended that the instant offense did not qualify as a third serious violent felony,

and he also argued that a prior Kansas conviction did not qualify as a serious violent

felony. Concluding that both convictions were serious violent felonies, the district

court imposed a life sentence under § 3559(c).

                                           II

      On appeal, Johnson argues: (1) the district court clearly erred in finding he

was competent to be tried; (2) the court erred in refusing to suppress the statements

he made to law enforcement officials after receiving an incomplete Miranda warning;

(3) the evidence was insufficient for conviction; (4) the court should have declined to

give the investigative-techniques instruction; and (5) the court erred in sentencing

him under the three-strikes statute.

         A. The district court did not clearly err in finding Johnson competent.

   Johnson first contests the district court’s finding that he was competent to be

tried. “We review the district court’s competency determination for clear error and

will reverse only if we are left with the definite and firm conviction that a mistake

has been committed.” United States v. DeShazer, 554 F.3d 1281, 1286 (10th Cir.

2009) (internal quotation marks omitted). “The district court need not be correct, but


                                          -5-
its finding must be permissible in light of the evidence.” United States v. Mackovich,

209 F.3d 1227, 1232 (10th Cir. 2000) (internal quotation marks omitted).

       A defendant is incompetent to be tried if he is “suffering from a mental disease

or defect rendering him . . . unable to understand the nature and consequences of the

proceedings against him or to assist properly in his defense.” 18 U.S.C. § 4241(d);

see also DeShazer, 554 F.3d at 1286 (“The test for competency to stand trial asks

whether a defendant has sufficient present ability to consult with his lawyer with a

reasonable degree of rational understanding--and whether he has a rational as well as

factual understanding of the proceedings against him.” (internal quotation marks

omitted)). “When assessing a defendant’s competence, the district court may rely on

a number of factors, including medical opinion and the court’s observation of the

defendant’s comportment.” Mackovich, 209 F.3d at 1232 (internal quotation marks

omitted).

       The district court did not clearly err in finding that Johnson was competent to

stand trial. Pietz opined that Johnson was able to understand the proceedings against

him and to assist in his own defense. We have held that a district court does not

clearly err when it accepts and relies on expert testimony regarding competency. See

id.; see also United States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 2001) (“It was

within the district court’s province to assess the credibility of the witnesses,

including the forensic psychologist . . . .”). Further, the district court heard

recordings of two of Johnson’s telephone conversations, finding persuasive “the


                                           -6-
rather dramatic differences” between those conversations and his interactions with

mental health personnel. R., Vol. 3 at 411. Also, the district court had the ability to

observe Johnson’s behavior before the court, during not only the competency hearing

but also at other proceedings. See Mackovich, 209 F.3d at 1232. Given the evidence

presented regarding Johnson’s competency and the court’s own ability to observe

Johnson’s behavior, the district court’s finding of competency was not clearly

erroneous.

     B. The district court did not err in refusing to suppress Johnson’s statements.

      Next, Johnson argues that the court erred in determining his confessions to

O’Neill and Samuels were voluntary and admissible. “When a party challenges a

district court’s ruling on a motion to suppress a confession, we review its conclusions

of law de novo and its factual findings for clear error.” United States v. Pettigrew,

468 F.3d 626, 633 (10th Cir. 2006). “Our de novo review includes the ultimate issue

of whether a statement was voluntary, taking into account the totality of the

circumstances surrounding the confession.” Id. (internal quotation marks omitted).

Johnson does not contest that his first statement to O’Neill was voluntary, so we

focus on the post-Miranda-warning statements to O’Neill and the statements to

Samuels.

                       1. Post-Miranda-warning statements to O’Neill

      The district court held that the post-Miranda-warning admissions to O’Neill

were admissible because they were voluntary statements that were not the products of

any questioning or coercion by the officer. “The evidence I think establishes that the
                                         -7-
defendant was reacting to the interest in him by the photographer as opposed to some

sort of an inquiry made by the police department.” R., Vol. 3 at 63-64. Johnson

suggests that the circumstances fit the legal definition of interrogation.

      “Miranda rights need only be given to a suspect at the moment that suspect is

‘in custody’ and the questioning meets the legal definition of ‘interrogation.’”

United States v. Chee, 514 F.3d 1106, 1112 (10th Cir. 2008) (quoting United States v.

Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)). The government does not dispute

Johnson’s assertion that he was in custody, so the issue is whether he was subjected

to “interrogation.” In defining “interrogation,” the Supreme Court has stated:

      [T]he Miranda safeguards come into play whenever a person in custody
      is subject to either express questioning or its functional equivalent.
      That is to say, the term “interrogation” under Miranda refers not only to
      express questioning, but also to any words or actions on the part of the
      police (other than those normally attendant to arrest and custody) that
      the police should know are reasonably likely to elicit an incriminating
      response from the suspect.

Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).

      Johnson argues that the “circumstances were such that it was reasonable for

him to conclude the officer was seeking additional information from him and likely

the circumstances would elicit an incriminating response.” Aplt. Br. at 32. We

disagree. Johnson sought to get O’Neill’s attention and began speaking without any

prompts. O’Neill interrupted him to give the Miranda warnings. Johnson said that

he understood his rights and continued speaking, again without being asked any

questions. He was handcuffed in the back of the police car, but the district court


                                          -8-
credited O’Neill’s testimony that the officer made no threats, used no coercion, and

made no promises. There is no evidence that O’Neill said or did anything that was

reasonably likely to elicit an incriminating response from Johnson. Therefore, the

district court did not err in concluding that the statements to O’Neill were admissible.

                                  2. Statements to Samuels

      The district court held that the statements to Samuels also were voluntary. On

appeal, Johnson argues that these statements were tainted by O’Neill’s incomplete

Miranda warning.

      As the government points out, Johnson did not make this argument before the

district court. At the evidentiary hearing, defense counsel briefly remarked that it

appeared that O’Neill’s Miranda warnings were incomplete. But that was the extent

of counsel’s argument; he did not go on to assert the specific theory now presented

on appeal. Accordingly, this argument is waived. See Fed. R. Crim. P. 12(e); United

States v. Burke, 633 F.3d 984, 988-89 (10th Cir.), cert. denied, 131 S. Ct. 2130

(2011); United States v. Hamilton, 587 F.3d 1199, 1213 (10th Cir. 2009).2

               C. The evidence was sufficient to support the conviction.

      Johnson further argues that there was insufficient evidence to support his

conviction. “We review sufficiency of the evidence challenges de novo to determine


2
       In his reply, Johnson maintains that his argument was adequately presented to
the district court. Therefore, he has not demonstrated good cause for his failure to
raise the argument, as required to qualify for Rule 12(e)’s sole exception to waiver,
see Burke, 633 F.3d at 988; Hamilton, 587 F.3d at 1215-16.


                                         -9-
whether, viewing the evidence in the light most favorable to the government, any

rational trier of fact could have found the defendant guilty beyond a reasonable

doubt.” United States v. Doe, 572 F.3d 1162, 1171 (10th Cir. 2009) (internal

quotation marks omitted).

       Johnson highlights various weaknesses and uncertainties in the evidence. But

when viewed in the light most favorable to the government, as it must be, the

evidence clearly is sufficient to support the conviction. The bank was FDIC-insured.

Johnson was found, shortly after the robbery, only a few blocks away. He met the

description of the robber. The robber had carried the money by hand, but dropped it

when the dye pack activated, and Johnson’s hand was stained with the color of dye

from the dye pack. Johnson’s wallet was found near the money and dye pack. The

teller identified him in court. And, as discussed above, Johnson’s confessions to law

enforcement officials were properly admitted. This is ample evidence for a rational

juror to render a guilty verdict.

                D. The district court did not err in instructing the jury.

       Johnson further challenges the court’s decision to give the government’s

requested investigative-techniques jury instruction. “This court reviews a district

court’s decision to give a particular jury instruction for an abuse of discretion and

considers the instructions as a whole de novo to determine whether they accurately

informed the jury of the governing law.” United States v. Cota-Meza, 367 F.3d 1218,

1221 (10th Cir. 2004). “On review, this court merely determines whether the jury


                                          - 10 -
was misled by the instructions and whether it had an understanding of the issues and

its duty to resolve those issues.” Id.

      The challenged instruction stated:

             You have heard testimony as to the manner in which the
      government conducted its investigation in this case including certain
      investigative methods or techniques that were used and certain
      investigative methods or techniques that were not used. In attempting to
      prove its case, the government is under no obligation to use all of the
      investigative methods that are available to it or use any particular
      method. The question is whether the evidence presented is sufficient to
      convince you beyond a reasonable doubt of the defendant’s guilt.

R., Vol. 1 at 39. Johnson argues this instruction fatally undermined his theory of

defense by telling the jury to disregard it. Both parties recognize that the Second and

Fourth Circuits have approved similar instructions, see United States v. Saldarriaga,

204 F.3d 50, 52-53 (2d Cir. 2000) (per curiam); United States v. Mason, 954 F.2d

219, 222 (4th Cir. 1992), but assert that this court has not yet addressed the propriety

of an investigative-techniques instruction.

      In Cota-Meza, however, this court did consider an investigative-techniques

instruction. 367 F.3d at 1223. The challenged instruction in Cota-Meza stated:

            Evidence has been received regarding law enforcement methods
      and equipment used in the investigation of this case. Likewise,
      evidence has been received concerning enforcement methods and
      equipment which were not used in relation to the investigation.

             You may consider this evidence for the purpose of evaluating the
      weight of the evidence produced by the government and the credibility
      of law enforcement personnel involved in the investigation. However,
      there is no legal requirement that the government, through its
      enforcement agents, must use all known or available crime detection
      methods or any particular type of equipment in its investigations.

                                         - 11 -
Id. This court determined that the instruction was not an abuse of the district court’s

discretion:

      The challenged instruction does not misstate the law; Cota-Meza
      himself acknowledges that there is no legal requirement that law
      enforcement officers utilize every available investigative method.
      Merely because the instruction informs the jury that the utilization of all
      known investigative methods is not legally required does not prevent
      the jury from concluding that a failure to employ certain investigative
      methods nevertheless detracts from the credibility of the government’s
      evidence. . . . Other jury instructions further informed the jury that
      they were the sole judges of the credibility of witnesses and the weight
      to be given to evidence.

Id.

      Similarly, in this case the instruction was an accurate statement of the law. It

did not prevent the jury from considering the extent of the government’s

investigation and concluding that the prosecution fell short of proving Johnson’s guilt

beyond a reasonable doubt. Further, other instructions informed the jury that it was

to determine credibility and weigh the evidence, and that the government bore the

burden to prove beyond a reasonable doubt that Johnson was guilty of the crime

charged. Because the jury was not misled, the district court did not abuse its

discretion in giving the requested instruction.

         E. Johnson qualified for sentencing under the three-strikes statute.

      The three-strikes sentencing statute requires a sentence of life imprisonment

for a defendant convicted of a “serious violent felony,” after having two or more

prior convictions for a “serious violent felony.” 18 U.S.C. § 3559(c)(1). Johnson

argues that he is not eligible for sentencing under this provision because neither the

                                         - 12 -
instant conviction nor his 1997 Kansas conviction for intentional torture and abuse of

a child qualify as serious violent felonies.3 We review the application of the

three-strikes statute de novo. See United States v. Cooper, 375 F.3d 1041, 1053

(10th Cir. 2004).

                                      1. Instant conviction

       Robbery generally qualifies as a “serious violent felony” for purposes of the

three-strikes statute. See 18 U.S.C. § 3559(c)(2)(F)(i). The statute, however, also

provides that a defendant may establish that certain offenses (including robbery) are

non-qualifying felonies “if . . . (i) no firearm or other dangerous weapon was used in

the offense and no threat of use of a firearm or other dangerous weapon was involved

in the offense; and (ii) the offense did not result in death or serious bodily injury . . .

to any person.” Id. § 3559(c)(3)(A). It is the government’s burden to establish, by a

preponderance of the evidence, the fact of a conviction. See Cooper, 375 F.3d at

1052. Then it is the defendant’s burden to establish, by clear and convincing

evidence, the elements of a non-qualifying felony. See 18 U.S.C. § 3559(c)(3)(A).

       Johnson asserts that the instant conviction is a non-qualifying felony because

the “detonator” was a fake, not a real explosive device. Therefore, he asserts, he did

not use a dangerous weapon or threaten to use a dangerous weapon. We disagree.




3
      Johnson does not challenge his first qualifying felony, a 1980 conviction for
aggravated robbery.


                                           - 13 -
      In United States v. Jones, 213 F.3d 1253, 1262 (10th Cir. 2000), this court held

that the “threat” element was satisfied where a robber announced that he had a gun

and made gestures consistent with having a gun, even though there was no gun.

“[T]he ‘threat of use’ includes a communicated expression to a victim that the

defendant would use a firearm.” Id. (internal quotation marks omitted). “The fact

that no gun was actually present does not prevent it from being a ‘threat.’” Id.; see

also United States v. Matthews, 545 F.3d 223, 228 (2d Cir. 2008) (“[I]t is irrelevant

for purposes of analysis under § 3559(c)(3)(A)(i) whether or not the object Matthews

brandished was actually a handgun where Matthews used the object to create the

impression that he was committing the robbery with a weapon.”). Likewise, the fact

that in this case the “detonator” was a hoax device does not prevent Johnson’s

conduct from being a threat to use a dangerous weapon. Johnson has not satisfied his

burden of showing that the instant conviction is a non-qualifying felony.

                                  2. Prior Kansas conviction

      Johnson argues that his 1997 Kansas conviction for intentional torture and

abuse of a child does not meet the definition of a “serious violent felony.” He also

contends that even if the conviction is a “serious violent felony,” it is a

non-qualifying felony because it did not involve a dangerous weapon and did not

result in death or serious bodily injury. Again, we disagree.

      In addition to listed crimes such as robbery, “serious violent felony” includes

      any other offense punishable by a maximum term of imprisonment of
      10 years or more that has as an element the use, attempted use, or

                                          - 14 -
      threatened use of physical force against the person of another or that, by
      its nature, involves a substantial risk that physical force against the
      person of another may be used in the course of committing the offense.

18 U.S.C. § 3559(c)(2)(F)(ii). Johnson argues that the 1997 conviction does not meet

this definition because the Kansas statute under which he was convicted can be

violated without the use, attempted use, or threatened use of physical force against a

person, and the charging document does not provide sufficient information to

conclude that the offense included, or by its nature involved, the use, attempted use,

or threatened use of physical force against a person.

      The language of § 3559(c)(3)(A) “unmistakably requires courts to look to the

specific facts underlying the prior offense, not to the elements of the statute under

which the defendant was convicted.” Mackovich, 209 F.3d at 1240. In examining

the facts, we are not limited to the charging document. See id. at 1238 (noting that

the government submitted judgments of conviction, offense reports, and a written

confession); id. at 1241 (referring to the offense reports and other documents); see

also Johnson v. United States, 130 S. Ct. 1265, 1273 (2010) (stating that the

“modified categorical approach” allows a court to consult “the trial record—

including . . . findings of fact and conclusions of law from a bench trial”). The

materials submitted in this case show that the conviction was based on Johnson’s

physical beating of a child. This offense obviously involved the use of physical force

against the victim.




                                         - 15 -
       The non-qualifying felony exception also applies to offenses under

§ 3559(c)(2)(F)(ii). See 18 U.S.C. § 3559(c)(3)(A). Johnson argues that the Kansas

conviction did not involve the use of a dangerous weapon and did not involve serious

bodily injury. Again, we disagree. The trial judge (who was the fact finder in this

bench trial) found that Johnson committed “a cruel beating,” R., Vol. 1 at 205, and he

stated that the marks left on the child were “severe,” id. at 206. At sentencing, the

court described the instrument and the child’s injuries, noting that “we’re not talking

about a beating just with an extension cord. This is an extension cord that was

wrapped and wrapped and wrapped and turned over on itself leaving crescent shaped

marks that are well healed over, all over this boy’s back, his buttocks, the front and

back of his legs.” Id. at 262. We have said in another context that “in the proper

circumstances, almost anything can count as a dangerous weapon, including . . .

leather straps.” United States v. Serrata, 425 F.3d 886, 910 (10th Cir. 2005) (internal

quotation marks omitted). It is evident that in these circumstances, the extension

cord qualifies as a dangerous weapon, such that the conviction cannot be a

non-qualifying offense under § 3559(c)(3)(A)(i). It also is evident that Johnson has

failed to establish a lack of serious bodily injury to the child.4



4
       Johnson argues that the statements of the sentencing judge do not substitute for
evidence. But the sentencing judge was also the trial judge, and therefore the fact
finder at trial. And because it is Johnson’s burden to show that the offense did not
involve a dangerous weapon or serious bodily injury, any lack of or deficiency in the
evidence on these matters simply works to his detriment.


                                           - 16 -
      Because the instant conviction and the 1997 Kansas conviction both qualified

as “serious violent felonies,” and were not non-qualifying felonies, the district court

did not err in sentencing Johnson to life imprisonment under § 3559(c)(2).

                                           III

      The judgment of the district court is affirmed.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Chief Judge




                                         - 17 -
