                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUN 25 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,                          No. 00-5255
                                              (Northern District of Oklahoma)
v.                                                (D.C. No. 99-CR-97-C)

DEMARQUES M. MORRIS,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, Circuit Judges, VAN BEBBER, Senior District
Judge. **



I. INTRODUCTION

      Defendant-Appellant DeMarques M. Morris appeals his convictions arising

from his participation in several robberies in Tulsa. A jury found him guilty of



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        The Honorable G. Thomas Van Bebber, Senior District Judge, United
States District Court for the District of Kansas, sitting by designation.
multiple counts of interference with interstate commerce, using or carrying a

firearm during a crime of violence, and bank robbery. He challenges his

convictions claiming that (1) the district court erred in denying his motion to

suppress certain incriminating statements; (2) the district court abused its

discretion in denying a motion for severance; and (3) there was insufficient

evidence to convict him on the charges. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

II. BACKGROUND

      On June 30, 1999, co-defendant Elliot C. Toles and Sh-Pone Harris, who

was not indicted in this case, were arrested in connection with an armed robbery

of a Burger King restaurant in Wichita, Kansas. Both men were brought to the

FBI Violent Crime Task Force after their arrest. Detective Steven Nevil of the

Wichita Police Department, who was assigned to the Task Force, was the agent

investigating the case. During the course of investigation that night, the police

learned from Harris that someone nicknamed Kidnap and whose first name was

DeMarques was also involved in the robbery and might be driving Elliot Toles’

car. At some point, officers also learned that there was an outstanding Oklahoma

state warrant for Morris’ arrest. By the time that authorities initially stopped

Morris, police also had a description of Toles’ vehicle, had developed Morris’ full

name, and had a physical description and the birth date of Morris. After Morris


                                         -2-
was stopped, Harris was brought to the scene and positively identified Morris as

the person Harris had been describing that night. At some point after Morris’

stop, Nevil ordered his arrest.

      Morris was subsequently brought to the Task Force office and interviewed

alone four times by law enforcement officials: at 12:20 a.m. and 3:15 a.m. on July

1, and at 7:45 a.m. and 5:20 p.m. on July 2. Authorities also questioned Toles

and Morris together on July 2 sometime after 5:20 p.m. Except for the first

interview, Morris gave statements implicating himself in the robberies of the

Northside Tag Agency, a Homeland grocery store, and branches of the American

State Bank and the Bank of Oklahoma. The substance of each of the confessions

was later admitted at trial.

      During the first interview, conducted at 12:20 a.m. on July 1, authorities

asked Morris if he wanted to give a statement. Morris stated that he wanted time

to think about whether or not he wanted to give a statement. Sometime during

this initial interview, Detective Nevil informed Morris that Harris and Toles were

cooperating and giving statements to authorities. Morris was not Mirandized at

this initial interview, but asserts that he invoked his right to counsel.

      Authorities then left the room and returned three hours later, at

approximately 3:15 a.m. on July 1. Investigators again asked Morris whether he

wanted to make a statement. Morris stated that he was not sure whether he


                                           -3-
wanted to make a statement. Detective Nevil informed Morris that authorities had

spoken to Toles and Harris on tape. Morris then asked to hear the taped

statements. Nevil played the statements to Morris, after which Morris signed a

waiver of rights form and gave an incriminating statement. Morris gave another

incriminating statement at 7:45 a.m. on July 2 after being given Miranda

warnings and waiving his rights.

      At approximately 1:00 p.m. on July 2, Morris was appointed counsel to

represent him in the charges stemming from his Kansas crimes. 1 The record does

not disclose whether Morris actually spoke to or had any communication with

counsel. Shortly after the appointment, Morris contacted FBI Special Agent

Daniel Jablonski by phone and indicated that he wished to confess to additional

crimes. Jablonski reminded Morris that he was represented by counsel and that he

could have counsel present at any interview. Morris indicated that he did not

wish to have an attorney present. As a result, Detective Nevil interviewed Morris

at the Sedgwick County Adult Detention Facility (SCADF), where Morris waived

his rights and implicated himself in each of the four Oklahoma robberies. As a



      1
       Morris was charged with various crimes related to the robbery of two
grocery stores and a Burger King restaurant in Wichita, Kansas. See United
States v. Morris, 247 F.3d 1080, 1082 (10th Cir. 2001). He was convicted of
these Kansas charges after a jury trial, and this court affirmed in part and vacated
and remanded in part. See id at 1082, 1091-92. The Oklahoma crimes, which are
the subject of the instant appeal, involved various robberies in Tulsa.

                                         -4-
result of the interviews and the ensuing criminal investigation, Morris was

indicted with Toles in a superceding indictment for various offenses related to the

Tulsa robberies.

      Morris made a motion to suppress his confessions and any fruits thereof

based on alleged violations of the Fifth and Sixth Amendments. After a hearing

on July 17, 2000, the district court denied Morris’ motion.

      Morris also made a pretrial motion seeking severance from co-defendant

Toles, which was denied orally by the district court following a hearing. Toles

and Morris were tried together. During the trial, Morris renewed his motion for

severance several times, but it was never granted by the court.

      On direct examination by the government at trial, Detective Nevil testified

that Morris had confessed to the indicted crimes, but the government did not offer

a transcript or recording of the confession into evidence. On cross-examination

by Toles, Nevil testified to additional details of Morris’ confessions and read

portions of Morris’ July 2, 7:45 a.m. confession into the record. Morris did not

testify at trial, but Toles testified in his own defense and Harris testified as a

government witness after a grant of use immunity. After a four-day trial, a jury

found Morris guilty of two counts of violating the Hobbs Act for robbing the

Northside Tag Agency and the Homeland grocery store, two counts of using and

carrying a firearm in the Northside Tag Agency and Homeland grocery store


                                           -5-
robbery, and two counts of bank robbery for the robberies of the American State

Bank and the Bank of Oklahoma. 2

III. DISCUSSION

A. Motion to Suppress 3

      1. Probable Cause, Voluntariness, and Right to Remain Silent

      Morris first argues that the police lacked probable cause to arrest him. He

asserts that Detective Nevil’s contradictory testimony at the suppression hearing

indicates that the police did not know Morris’ full name when he was arrested,

and that officers learned of his identity and outstanding arrest warrant in

Oklahoma only after he was taken into custody.

      This court reviews de novo the district court ruling that probable cause

existed at the time of arrest. United States v. Allen, 235 F.3d 482, 488 (10th Cir.



      2
       Toles was also found guilty of multiple offenses and brought a separate
appeal from those convictions. See United States v. Toles, No. 01-5009 (10th Cir.
___, 2002), Slip Op.
      3
        Morris concedes that his suppression claims were previously considered by
this court in the appeal from his Kansas convictions. Neither party briefed the
possible applicability of stare decisis or issue preclusion. It is unclear whether
stare decisis would apply to legal determinations, such as probable cause and
voluntariness, that are necessarily based on the record before the district court.
This court has also previously noted the circuit split over the issue whether the
government may use issue preclusion against a criminal defendant. See United
States v. Gallardo-Mendez, 150 F.3d 1240, 1242 n.3 (10th Cir. 1998) (citing
cases). Neither doctrine is jurisdictional, and we need not address the
applicability of either because we resolve Morris’ suppression claims on the
merits.

                                         -6-
2000). Probable cause to arrest exists when, under the totality of circumstances,

an officer reasonably believes that an offense has been or is being committed by

the suspect. Id. Here, Nevil had evidence developed by other officers that there

was an outstanding Oklahoma warrant for Morris’ arrest, Harris’ information that

a third robber named Kidnap may be driving Toles’ car, a description of Toles’

car, Morris’ full name, and a physical description of Morris and his birth date.

Based on the totality of circumstances, an officer would have a reasonable belief

that Morris had committed a crime. His arrest was based on probable cause.

      Morris next asserts that he was enticed into making statements about his

Oklahoma robberies in order to receive the benefit of consolidation under Federal

Rule of Procedure 20. Morris’ brief on this argument, however, does not contain

a single citation to support his argument or otherwise argue why it is sound

despite the lack of authority. The argument is therefore waived. See Phillips v.

Calhoun, 956 F.2d 949, 953-54 (10th Cir. 1992).

      Morris also claims that he invoked his right to remain silent at the

interrogation conducted at approximately 3:15 a.m. on July 1, 1999. The district

court expressly found that Morris did not invoke his right to remain silent at any

time. Morris did not testify at the suppression hearing or at trial, and has not

cited to any record evidence to support his contention. Detective Nevil testified

at the hearing that Morris did not invoke his right to remain silent at the 3:15 a.m.



                                          -7-
interview. Given that there is no record evidence that Morris invoked his right to

remain silent, we need not discuss Morris’ contention any further.

      2. Edwards Violation

      Finally, Morris claims that he also invoked his right to speak to an attorney

during his first interview with police at approximately 12:20 a.m. on July 1. It is

undisputed that approximately three hours after Morris’ alleged invocation of his

right to counsel, Detective Nevil returned to the interview room, asked Morris

whether he wanted to make a statement, and informed him that Toles and Harris

had given taped statements. At the suppression hearing, the government

stipulated that, if Morris were to testify at the hearing, he would testify that he

asked for an attorney at the 12:20 a.m. interview. The government does not cite

to, nor has this court found, any record evidence at the suppression hearing or at

trial which rebuts Morris’ assertion that he asked for an attorney at the 12:20 a.m.

interview. Nor does the government cite to any record evidence or otherwise

argue that there is some other basis on which the district court could have

disbelieved Morris’ proffer or found that it was not credible. Thus, the district

court’s factual finding that “at no time did Morris . . . request to speak to [his]

attorney” is clearly erroneous with regard to the 12:20 a.m. interview.

      The Supreme Court has held that “when counsel is requested, interrogation

must cease, and officials may not reinitiate interrogation without counsel present,



                                           -8-
whether or not the accused has consulted with his attorney.” See Minnick v.

Mississippi, 498 U.S. 146, 153 (1990); see also Edwards v. Arizona, 451 U.S.

477, 484-85 (1981). The mere fact that the accused responded to further police-

initiated custodial interrogation, even if he has been advised of his rights, is

insufficient to constitute a valid waiver. See Edwards, 451 U.S. at 484. The

accused, however, may voluntarily waive his Fifth Amendment rights after

invoking the right to counsel if he initiates contact or discussion with authorities.

See Minnick, 498 U.S. at 156; Edwards, 451 U.S. at 485.

      The admission of Morris’ incriminating statements made at 3:15 a.m. on

July 1 and 7:45 a.m. on July 2 was error. Both statements were made after Morris

invoked his right to counsel and law enforcement reinitiated interrogation. 4 That

Morris’ confessions concerned crimes other than those underlying his arrest is

immaterial. See Arizona v. Roberson, 486 U.S. 675, 682-84 (1988).

      We reach a different conclusion, however, with respect to the 5:20 p.m.

confession given at the SCADF on July 2. The parties do not dispute that Morris

made the 5:20 p.m. confession after contacting authorities. At that time, Agent

Jablonski reminded Morris that he was represented by counsel and could have

counsel present during any interviews with authorities, a reminder which Morris

did not heed. There is also no record evidence that law enforcement officials


      The government does not allege that Morris was not in custody or that he
      4

was not interrogated.

                                          -9-
interfered or prevented Morris from consulting his attorney. At the SCADF,

Morris was advised of his rights and waived them. Thus, Morris validly waived

his Fifth Amendment protections when he spoke to Detective Nevil at SCADF

and implicated himself in the four robberies at issue in this case. See Oregon v.

Bradshaw, 462 U.S. 1039, 1044-46 (1983) (plurality opinion). 5

      The erroneous admission of confessions in violation of Edwards is subject

to harmless error analysis. See United States v. Parra, 2 F.3d 1058, 1068 (10th

Cir. 1993). In this case, even though the district court erred in admitting the July

1, 3:15 a.m. statement and the July 2, 7:45 a.m. statement, those errors were

harmless. With respect to the 3:15 a.m. confession, the jury heard that Morris

discussed with Nevil his role in a Tulsa bank robbery. No further details of the



      5
        Morris does not argue that the 5:20 p.m. confession was somehow tainted
by the prior Edwards/Minnick violations. It is unclear under Supreme Court
precedents whether a taint analysis is proper for confessions made after Edwards
violations. Cf. Oregon v. Elstad, 470 U.S. 298, 307-09 (1985) (holding that the
fruit of the poisonous tree doctrine is inapplicable to confessions made after the
failure to give Miranda warnings and there was no evidence of any actual
coercion). Moreover, the viability of Elstad itself, which was premised in part on
the Supreme Court’s conclusion that “[t]he Miranda exclusionary rule . . . sweeps
more broadly than the Fifth Amendment itself,” is unclear after Dickerson v.
United States, 530 U.S. 428, 438-44 (2000).
       Even assuming Elstad does not apply to this case, Morris’ 5:20 p.m.
confession was sufficiently attenuated to purge the Edwards violation. See Wong
Sun v. United States, 371 U.S. 471, 491 (1963). As already noted, Morris
contacted Agent Jablonski expressing his desire to speak further about the
Oklahoma robberies, Jablonski reminded Morris that he had an attorney, and there
is no record evidence that the authorities did anything to impede Morris from
contacting his attorney.

                                        -10-
confession were adduced at trial. With respect to the 7:45 a.m. confession, Nevil

testified at trial that Morris confessed to committing a bank robbery in Tulsa.

Morris gave only vague details about the name and location of the bank. He

indicated, however, that he was disguised as a woman, wore a dark brown jacket

and a black wig, passed a note that asked for no fake money, and stated orally he

did not want any fake money.

      The admission of the 3:15 a.m. and 7:45 a.m. confessions was harmless

because Morris’ properly admitted confession at 5:20 p.m. on July 2 implicated

him in each of the four robberies charged in this case. In his 5:20 p.m.

confession, Morris stated that he was responsible for a bank robbery in Tulsa but

did not know the address. He indicated, however, that he wore makeup during

that robbery. This admission was corroborated at trial by Cassey Hicks, a teller

supervisor at a branch of the Bank of Oklahoma, who testified that the robber was

a man dressed as a woman and wore red lipstick. Sh-Pone Harris testified that

Morris had told him he had disguised himself as a woman during one of the

robberies. Hicks also testified that the robber was an African-American male who

wore a brown security guard jacket, which is consistent with Harris’ testimony

that he had seen Morris in possession of a brown security guard jacket. The

prosecution also presented fingerprint evidence connecting Morris to the Bank of

Oklahoma robbery. Given the overwhelming evidence of Morris’ participation in



                                        -11-
the Bank of Oklahoma robbery, the erroneous admission of Morris’ 3:15 a.m. and

7:45 a.m. confessions was harmless. 6

B. Motion For Severance

      This court reviews a district court’s denial of a motion for severance under

Federal Rule of Criminal Procedure 14 for abuse of discretion. See United States

v. Morales, 108 F.3d 1213, 1219 (10th Cir. 1997). Rule 8(b) of the Federal Rules

of Criminal Procedure provides that defendants may be charged together “if they

are alleged to have participated in the same act or transaction or in the same

series of acts or transactions constituting an offense or offenses.” Fed. R. Crim.

P. 8(b). “There is a preference in the federal system for joint trials of defendants

who are indicted together.” Zafiro v. United States, 506 U.S. 534, 537 (1993).




      6
       In light of recent Supreme Court precedent, it is unclear whether the
erroneous admission of Morris’ 3:15 a.m. statement and 7:45 a.m. statement
amounted to a constitutional violation subject to the Chapman harmless error
standard. Compare Dickerson, 530 U.S. at 438-44 (holding that Miranda v.
Arizona, 384 U.S. 436 (1966), was a constitutional decision which cannot be
superceded by Congressional action) with New York v. Quarles, 467 U.S. 649, 654
(1984) (indicating that Miranda protections are merely prophylactic and “not
themselves rights protected by the Constitution” (quotation omitted)). Dickerson
did not discuss whether Edwards was also a constitutional decision, or instead a
prophylactic rule which merely safeguards a defendant’s constitutional rights. In
United States v. Parra, however, we applied Chapman harmless error analysis to
the admission of a confession in violation of Edwards. See 2 F.3d 1058, 1068
(10th Cir. 1993). Even assuming that Chapman applies, we conclude that the
admission of Morris’ statements was harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18, 24 (1967).

                                        -12-
      Rule 14, however, permits a district court to grant a severance of

defendants if “it appears that a defendant or the government is prejudiced by a

joinder.” Fed. R. Crim. P. 14. Although courts have held that mutually

antagonistic defenses may be so prejudicial in some circumstances to warrant

severance, they are not prejudicial per se. See Zafiro, 506 U.S. at 538. Indeed,

Rule 14 does not require severance even if prejudice is shown, but instead permits

the district court in its sound discretion to tailor relief. See id. at 538-39. A

district court should grant severance

      only if there is a serious risk that a joint trial would compromise a
      specific trial right of one of the defendants, or prevent the jury from
      making a reliable judgment about guilt or innocence. Such a risk
      might occur when evidence that the jury should not consider against
      a defendant and that would not be admissible if a defendant were
      tried alone is admitted against a codefendant.

Id. at 539.

      This court has also stated, however, that “[severance] is an area in which

the trial judge’s discretion is very broad. Thus, we will not reverse absent a

strong showing of prejudice, which means that defendant’s burden to show an

abuse of discretion is a difficult one.” United States v. Wiseman, 172 F.3d 1196,

1211 (10th Cir. 1999) (quotation omitted). In such circumstances, the defendant

must demonstrate that the refusal to sever resulted in actual prejudice. See United

States v. Powell, 982 F.2d 1422, 1432 (10th Cir. 1992). “Neither a mere

allegation that defendant would have a better chance of acquittal in a separate

                                          -13-
trial, nor a complaint of the ‘spillover effect’ . . . is sufficient to warrant

severance.” Id. (quotation omitted).

       Morris claims that Toles’ trial strategy was highly prejudicial to him. At

trial, Toles’ defense strategy was, in part, to introduce Morris’ statements which

implicated Toles in the Kansas robberies, but did not implicate Toles in the

Oklahoma robberies. During the cross-examination of Detective Nevil, Toles had

Nevil read portions of the transcript of Morris’ 7:45 a.m. confession on July 2 to

Nevil and Jablonski. This confession implicated Morris in the Bank of Oklahoma

robbery.

       Morris also maintains that Toles made several damaging statements during

his trial testimony. Specifically, Toles testified that Morris was a drug user,

convicted felon, and a high-ranking gang member; that he and Morris had agreed

to lie to the police and confess to robberies they did not commit in order to get

credit for cooperating and accepting responsibility; and that a witness in the

Kansas federal trial had identified Morris.

       This court has carefully reviewed the record and concludes that the district

court did not abuse its discretion in denying Morris’ motion for severance. By

the time that Toles cross-examined Nevil, the government had already properly

introduced evidence of Morris’ confession to the four robberies as well as other

testimony showing Morris’ involvement in those crimes. Toles’ cross-



                                           -14-
examination of Detective Nevil about Morris’ confessions, as well as Toles’

introduction into evidence of part of the transcript of Morris’ taped 7:45 a.m.

confession on July 2, did not implicate Morris in any crimes other than those

tried in this case.   7
                          As already noted, the admission of the 7:45 a.m. confession

by the government was harmless error. Although Toles introduced the substance

of Morris’ 7:45 a.m. confession in greater detail than the government, he has

failed to demonstrate how its admission or the additional information elicitied

resulted in actual prejudice to his defense.          See Powell , 982 F.2d at 1432. There

was overwhelming evidence of Morris’ involvement in the Bank of Oklahoma

robbery, including Morris’ fingerprint lifted from the crime scene, Morris’ own

confession to the robbery, as well as testimony from Cassey Hicks and Sh-Pone

Harris which corroborated details of the robbery. Nothing in the 7:45 a.m.

confession improperly introduced by Toles would warrant an automatic severance

of the defendants.

       Morris’ argument that Toles’ testimony was highly prejudicial is without

merit. Morris had the opportunity to fully cross-examine Toles, but did not take

the opportunity to challenge Toles’ credibility or otherwise impeach his




       Although Toles had indicated at a sidebar conference that he would cross-
       7

examine Nevil about Morris’ statements relating to the Kansas robberies and an
unindicted bank robbery in Oklahoma City, the district court did not permit this
testimony.

                                               -15-
testimony. Thus, Morris has failed to indicate any actual prejudice that resulted

from the denial of the motion for severance.

C. Sufficiency of the Evidence

      This court reviews the sufficiency of evidence   de novo . See United States

v. Malone , 222 F.3d 1286, 1290 (10th Cir. 2000). However, we do so “viewing

the evidence and the reasonable inferences to be drawn therefrom in the light

most favorable to the government. We will reverse only if no rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. at 1290-91 (quotation omitted).

      1. Northside Tag Agency

      Morris alleges that there was no evidence that the robbery affected

interstate commerce to satisfy the commerce requirement of the Hobbs Act. He

concedes, however, that this court’s precedents require only that the government

demonstrate a de minimis effect on interstate commerce to satisfy the Hobbs

Act’s nexus requirement.   See id. at 1294-95. The testimony adduced at trial

indicated that the tag agency accepted out-of-state checks and cleared out-of-state

credit cards. As a result of the robbery, money was taken from the tag agency

and the tag agency was closed for the remainder of the day. To establish the

requisite de minimis effect on commerce, the government need only demonstrate

that the robbery had a potential effect on the sale of goods in interstate



                                         -16-
commerce. See United States v. Toles , No.01-5009, slip op. at __ (10th Cir.

____, 2002); see also Wiseman , 172 F.3d at 1216. We conclude that there was

sufficient evidence for a jury to infer that the robbery of the Northside Tag

Agency had a de minimis effect on interstate commerce.

      Morris also challenges the sufficiency of the evidence with respect to his

18 U.S.C. § 924(c) conviction. Morris confessed to the tag agency robbery and

Harris testified that he had heard Toles and Morris discussing the robbery of

Oklahoma tag agencies. Thomas McGee and Nikisha Harris testified that one of

the robbers wore a yellow construction hat, which corroborated Harris’ testimony

that he saw Morris in possession of such a hat. McGee further testified that he

had no doubt that the gun used in the robbery was real. We find no merit to

Morris’ claim.

      2. Homeland Grocery Store

      Morris makes similar challenges to the Hobbs Act and 18 U.S.C. § 924(c)

convictions for the robbery of a Homeland grocery store. The trial testimony

contained overwhelming evidence of Morris’ guilt, including Morris’ confession

and Harris’ testimony corroborating that of eyewitness Raymond Crawford.

There was sufficient evidence for a reasonable jury to find Morris guilty of both

counts.

      3. American State Bank    and Bank of Oklahoma



                                        -17-
      Lastly, Morris claims there was insufficient evidence to convict him of

robbing the American State Bank and the Bank of Oklahoma. Morris confessed

to both robberies and included details of the robberies and the disguises he used,

which were corroborated by eyewitnesses, Harris, and Toles. The prosecution

also presented fingerprint evidence connecting Morris to the Bank of Oklahoma

robbery. Given the wealth of evidence in both robberies, this court affirms the

convictions.

      Accordingly, this court   AFFIRMS the Defendant’s convictions in all

respects.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




                                        -18-
No. 00-5255, United States v. Morris

BRISCOE, Circuit Judge, concurring and dissenting:

      I concur in the majority's resolution of all of the issues except its

affirmance of the Hobbs Act conviction arising out of the robbery of the

Northside Tag Agency. For the reasons set forth in my concurring and dissenting

opinion in United States v. Toles, No. 01-5009, I conclude that the evidence

presented by the government was insufficient to establish that the Northside Tag

Agency robbery had the required minimal effect on interstate commerce. I would

reverse Morris' conviction and vacate his sentence on this count.
