                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-4251

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

M YRON R OBINSON, a/k/a B OOJIE,
                                               Defendant-Appellant.



             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 08 CR 00067—Elaine E. Bucklo, Judge.



  A RGUED S EPTEMBER 17, 2009—D ECIDED N OVEMBER 10, 2009




 Before P OSNER, M ANION, and E VANS, Circuit Judges.
  M ANION, Circuit Judge. In 2003, Myron “Boojie”
Robinson gave law enforcement agents a signed state-
ment implicating himself in criminal firearms trafficking.
In 2008, he was indicted for conspiring to transport fire-
arms across state lines without a license and for
receiving firearms transported across state lines in viola-
tion of 18 U.S.C. § 922. Before trial, he filed a motion
to suppress the statement he had given to law enforce-
2                                               No. 08-4251

ment agents, arguing that he was interrogated in viola-
tion of his Fifth Amendment rights. The district court
denied the motion. The case went to trial and Robinson
was convicted. Robinson appeals, arguing that the
district court erred in denying his motion to suppress.
We affirm.


                      I. Background
   Myron Robinson is apparently one of those people
who is blessed with the gift of gab, but in this case that
gift turned out to his detriment. Over the years, his crimi-
nal associations have brought him into contact with
quite a few federal and state law enforcement agents.
Despite the apparent conflicts of interest, Robinson has
kept in touch with several of these acquaintances. He
has even called them for advice on critical personal deci-
sions, such as where to find the best criminal defense
representation. In 1995 and 1996, Robinson got to know
FBI Special Agent R. Lee Walters and Assistant
United States Attorney for the Northern District of
Illinois Brian Netols. At that time, Robinson was a cooper-
ating witness in an undercover sting investigation in-
volving corrupt police officers. Robinson was paid cash
for his cooperation, but during the investigation he
made false statements to federal agents, which led to his
guilty plea for violating 18 U.S.C. § 1001. He was sen-
tenced to two years’ probation. Over the next decade,
Robinson kept in occasional contact with Agent Walters,
calling him as often as three times per year to catch up
and make small talk. Robinson also had some contact
No. 08-4251                                                 3

with Netols over the years. Most recently, in early 2008,
he contacted Netols and asked for a recommendation
for an attorney to represent him in this case. Netols ended
the conversation after determining Robinson had been
charged in federal court and was represented by counsel.
  Returning to 2002, after his brief stint assisting federal
law enforcement (and presumably after his term of proba-
tion had expired), Robinson and Carlos Orr went into
business together reselling ill-gotten guns in the Chicago
area. Robinson used his connections in Shreveport, Louisi-
ana to make straw purchases 1 of guns at pawn shops.
He and Orr used their Chicago connections to sell the
guns up north at a hefty profit. On at least two
occasions, Robinson and Orr traveled to Shreveport
and hired people without criminal backgrounds,
including Reginald Dean, Teresa Woodward, and Mary
Williams to make straw purchases of guns that Robinson
and Orr had selected. When they had assembled the
guns, Robinson and Orr boxed and shipped them via
Federal Express to Robinson’s home in Maywood, Illinois.
Once the guns arrived in Maywood, Robinson removed
the serial numbers and resold them to various buyers,


1
   A “straw purchase” occurs when one individual purchases a
firearm on behalf of another individual but fills out the
required Form 4473 as if he or she were the actual purchaser.
Such purchases are often used when the individual who
wishes to purchase the gun is prohibited from purchasing a
firearm for some reason, such as a previous felony conviction.
B UREAU OF A LCOHOL , T OBACCO , F IREARMS , AND E XPLOSIVES ,
F EDERAL F IREARMS R EGULATIONS R EFERENCE G UIDE 165 (2005).
4                                                No. 08-4251

including Roynel Coleman, who had introduced Orr and
Robinson. Sometime later, Chicago police officers recov-
ered a .38-caliber High Point pistol and a 9-millimeter
High Point pistol, both with serial numbers removed.
Forensic specialists with the Illinois State Police were
able to restore the serial numbers, which matched
weapons that Woodward and Dean admitted to pur-
chasing for Robinson in Shreveport.
  In 2003, Robinson phoned Special Agent James
Ferguson of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“ATF”) and set up a meeting at Robinson’s
mother’s house in Maywood. 2 Ferguson was part of a task
force with fellow ATF Agent Dave Balkema, Matt Gainer
of the Illinois State Police, and Joseph Bowers from the
Chicago Police Department. Before the meeting, Ferguson
checked the National Crime Information Center database
and discovered an outstanding warrant for Robinson
for retail theft, originating out of the Lombard, Illinois,
Police Department. When Ferguson and his team arrived
at the Maywood residence, they were met by Charles
Allen, Robinson’s attorney. Allen asked Ferguson what
they wanted and, after learning that the agents wished
to discuss an investigation into firearms trafficking,
informed Ferguson that Robinson would not talk to them
about the investigation. At that point, Agent Gainer
informed Allen that Robinson was going to be taken
into custody on the outstanding warrant.


2
  It is not clear what motivated Robinson to make this call in
the first place, but he apparently got Ferguson’s number from
a card that was left with Robinson’s mother.
No. 08-4251                                               5

  Robinson and the government dispute many of the
details of the evening after that point. But in both
versions, shortly after the police arrived at his mother’s
residence Robinson was arrested and transported to the
Westchester, Illinois, Police Department at approximately
8:00 p.m. and later transferred to the Lombard Police
Department shortly before midnight. While at Robin-
son’s mother’s house his lawyer unambiguously
asserted Robinson’s right to counsel before Robinson
was arrested, and the government acknowledges that
Robinson was not informed of his Miranda rights at his
mother’s house or during the car ride to Westchester.
While at Westchester, however, Robinson signed a
Miranda waiver and a detailed statement implicating
himself in illicit firearms trafficking. After he signed the
statement, he was eventually transported to the Lombard
police station. Robinson’s mother testified that she
called the Lombard police station around 9:00 p.m. to
inquire about her son’s status, but neither she nor his
attorney went to the Lombard police station that evening.3
   In 2008, a grand jury indicted Robinson in a two-
count indictment for conspiring to transport firearms
purchased outside of Illinois and for receiving out-of-state
firearms in Illinois.4 Robinson moved to suppress the



3
  The record does not indicate what happened after Robinson
was transported to Lombard, how he posted bond, or how
he got home from the station.
4
 No explanation for the more-than-four-year delay between
Robinson’s incriminating statement in 2003 and his charging
                                              (continued...)
6                                               No. 08-4251

incriminating statement from 2003. The district court
held an evidentiary hearing, at which it heard testimony
from, among others, Agents Ferguson and Gainer, and
from Robinson, Robinson’s mother, and Robinson’s
former attorney, Charles Allen.
  Each side told varying versions of the 2003 events.
Everyone at least agreed that Robinson called Agent
Ferguson and that Ferguson and other law enforcement
agents came to the Maywood residence at his request.
All also agreed that Robinson was informed that he was
being arrested pursuant to a warrant out of the Lombard
Police Department. Ferguson testified that Agent Gainer
told Robinson that he was going to be taken to the
closer police department in Westchester, while Gainer
testified that he did not recall whether he told Robinson
or his attorney where he was going to be taken for pro-
cessing. Robinson was given time to change his clothes
and was then taken to the Westchester Police Department.
According to Ferguson and Gainer, Robinson was not
questioned outside of routine processing questions and
was not informed of his Miranda rights. After about
twenty minutes at Westchester, Robinson asked
Ferguson, “What do you want?” Ferguson testified that
he informed Robinson that because Robinson’s attorney


4
  (...continued)
in 2008 appears in the record. Agent Ferguson testified, how-
ever, that Robinson was not the primary target in 2003, and
Robinson implicated several individuals in his statement.
Perhaps if he was not the primary target, the police first
pursued the people whom he implicated.
No. 08-4251                                              7

had invoked Robinson’s right to counsel, a Miranda
waiver was required before they could discuss the investi-
gation. At 8:41 p.m., Robinson signed a Miranda waiver;
at 11:15 p.m. he made changes to and signed a hand-
written statement implicating himself and several others
in the gun trafficking conspiracy for which he was
later convicted.
  In his testimony at the evidentiary hearing, Robinson
claimed that his attorney was told not only that the out-
standing warrant for his arrest originated out of
Lombard, but that the officers were going to take him to
the Lombard Police Department. Robinson also claimed
that the officers began questioning him during the ride
to Westchester, continued interrogating him once they
arrived at the police station, and told him that he did not
need an attorney. Robinson testified that he signed the
incriminating statement at 11:15 p.m. “to get out of there”
and backdated the Miranda waiver to 8:41 p.m. at the
instruction of Agent Bowes.
  The district court denied Robinson’s motion to sup-
press after finding that, although the question was close,
Robinson—not the police officers—reinitiated the con-
versation about firearms trafficking at the Westchester
Police Department. The district court found the evidence
of Robinson’s history of talking to law enforcement espe-
cially convincing and concluded that Robinson initiated
the conversation because he was confident he could talk
his way out of any trouble.
  At trial, Robinson’s 2003 statement was published to
the jury and read out loud by Agent Ferguson during
8                                             No. 08-4251

his testimony. The jury convicted Robinson on both
counts of the indictment. The district court sentenced
Robinson to two consecutive terms of 60 months of impris-
onment and 36 months of supervised release. On appeal,
Robinson challenges the district court’s denial of his
motion to suppress.


                     II. Discussion
  Robinson argues that his statement should have been
suppressed and that, because the jury was allowed to
consider this evidence, we should reverse his convic-
tion. We review the district court’s factual findings on
a motion to suppress for clear error and its legal conclu-
sions de novo. United States v. Burks, 490 F.3d 563, 565
(7th Cir. 2007).
  Under Miranda v. Arizona, 384 U.S. 436, 444 (1966), a
suspect must be informed of, and voluntarily waive,
his right to counsel before being subjected to custodial
interrogation. A waiver of the right to counsel is valid
only if, under the “totality of the circumstances,” the
waiver was knowing and voluntary. Edwards v. Arizona,
451 U.S. 477, 486 n.9 (1981). Once a suspect has informed
the police that he wishes to consult with a lawyer, all
interrogation of the suspect must cease “until counsel
has been made available to him, unless the accused him-
self initiates further communication, exchanges, or con-
versations with the police.” Id. at 484-85. A suspect
initiates conversation if he makes a statement that
“evince[s] a willingness and a desire for a generalized
discussion about the investigation.” Oregon v. Bradshaw,
No. 08-4251                                                  9

462 U.S. 1039, 1046 (1983). By itself, a suspect’s initiation
of conversation does not necessarily constitute a waiver
of his right to counsel; the suspect’s waiver must also be
knowing and voluntary, under the totality of the circum-
stances, before law enforcement agents engage in any
interrogation. Edwards, 451 U.S. at 486 n.9.
  Robinson claims that the district court erred in finding
that he reinitiated the conversation that resulted in his
incriminating statement. Specifically, he argues that
under the “totality of the circumstances” he could not
have reinitiated conversation with the agents. Robinson
claims that the officers first violated Edwards by deceiving
him by telling him he was going to the Lombard police
station but instead taking him to Westchester. He
claims this diversion was done with the intention of
eliciting an incriminating statement and that, but for the
diversion to Westchester, he would not have made the
incriminating statement. 5 Therefore, he now insists, his
subsequent initiation of a conversation with the police
was not valid.
  Robinson argues that the question of whether or
not he initiated the conversation is subject to de novo



5
  Robinson claims that had he been taken to Lombard, his
mother would have somehow prevented him from giving a
statement. This argument ignores two facts: first, he initiated
conversation during the processing of the warrant, and could
not, in any event, have been released until after the warrant
was processed; second, he initiated conversation and signed
the Miranda waiver twenty minutes before his mother tele-
phoned the Lombard station to inquire about his status.
10                                               No. 08-4251

review. Not so. The so-called “totality of the circum-
stances” test addresses the distinct question of whether
a Miranda waiver was voluntary and knowing. While
that is a legal question subject to de novo review,
the district court’s underlying findings of fact, including
the necessary fact that a suspect initiated the con-
versation with law enforcement agents, are reviewed for
clear error.6 Bradshaw, 462 U.S. at 1046-47; see also
Edwards, 451 U.S. at 486 n.9.
  Of course, if the officers’ conduct prior to the point
when Robinson initiated further conversation amounted
to interrogation, such interrogation would have
violated Edwards and rendered the subsequent initiation
and waiver invalid. But whether police officers intended
to elicit a suspect’s statement is not, as Robinson claims,
the standard for interrogations under the Fifth Amend-
ment. Rather, absent direct interrogation, the officers
did not violate Robinson’s Fifth Amendment right to
counsel unless they should have known that the
practices they employed were “reasonably likely to elicit
an incriminating response” from Robinson. Rhode Island




6
  There is no doubt that, under the facts as found by the
district court, Robinson’s unprompted question, “What do
you want?” was sufficient under Edwards to initiate a con-
versation. See Bradshaw, 462 U.S. at 1045 (upholding a finding
of initiation where defendant had asked, “Well, what is going
to happen to me now?”).
No. 08-4251                                                     11

v. Innis, 446 U.S. 291, 301(1980).7 As this court has inter-
preted this test, there is no violation unless “a reasonable
objective observer would have believed that the law
enforcement officer’s statements to the defendant were
reasonably likely to elicit an incriminating response.”
United States v. Hendrix, 509 F.3d 362, 374 (7th Cir. 2007)
(citations omitted); United States v. Westbrook, 125 F.3d
996, 1002 (7th Cir. 1997).
  Here, the district court found that Robinson was not
directly interrogated by Agent Ferguson, and the sur-
rounding facts do not suggest the type of coercive
practices that are the “functional equivalent” of inter-
rogation. See Innis, 446 U.S. at 301. At most, the police
caused a slight delay in processing Robinson on the
retail theft warrant due to a delay in getting necessary
information from Lombard. But a short delay—in this
case probably less than half an hour—is not “reasonably
likely” to cause a suspect to make incriminating state-
ments, even with the attendant hope that a suspect will
act against his own interests, initiate a conversation,
and incriminate himself. Nor did the police isolate Robin-
son from his attorney. In fact, the diversion and delay
did not actually deprive Robinson of his attorney’s pres-
ence or advice. Allen did not attempt to accompany
or follow Robinson to the police station. He was



7
   This does not mean that the police officers’ intent is necessar-
ily irrelevant, as it might bear on whether they should have
known that their actions were likely to elicit an incriminating
response. Innis, 446 U.S. at 301-02 n.7.
12                                              No. 08-4251

equivocal regarding whether he planned to go to the
station at all that evening, as he was not representing
Robinson on the retail-theft charge, and did not, in fact,
make any further efforts on Robinson’s behalf that evening.
  The district court found that less than an hour after
he left his attorney, Robinson disregarded his attorney’s
advice and initiated a conversation with the police. Given
this finding, we see no reason to believe that Robinson
would not have given the same statement had he been
taken directly to Lombard.
  The question before us, then, is whether the district
court’s factual findings were clearly erroneous. In this
case, the district court held a hearing on Robinson’s
motion to suppress and heard testimony from virtually
everyone involved with his arrest, processing, and con-
fession. After weighing the credibility of the witnesses
and considering Robinson’s history of cooperating and
otherwise voluntarily conversing with law enforcement,
the district court found that the agents’ story, rather
than Robinson’s, was credible and that Robinson had
reinitiated the conversation that led to his Miranda
waiver and subsequent confession.
   Where a factual finding rests on the district court’s
credibility determination, it “is entitled to great deference
and can virtually never be clear error.” United States v.
Clark, 538 F.3d 803, 813 (7th Cir. 2008) (citations omitted).
Robinson correctly states that a district court finding is
clearly erroneous if it credits exceedingly improbable
testimony, such that we are left with the definite and
firm conviction that a mistake has been made. See Burks,
No. 08-4251                                             13

490 F.3d at 565. He cites contradictions between what
Agent Ferguson and Agent Gainer testified about what
they told Robinson concerning which police station he
would be taken to for booking. He also references varia-
tions in the minor details describing events that occurred
at the Westchester Police Department. Cumulatively, he
claims these inconsistencies made the officers’ testimony
exceedingly incredible, especially in light of Robinson’s
clear assertion of his right to counsel. Noting that the
district court found the question of who initiated the
conversation “close,” Robinson invites us to revisit the
factual question and reverse.
   The types of minor inconsistencies between Gainer’s
and Ferguson’s testimonies that Robinson identifies are
hardly indicative of clear error. Indeed, he could be just
as skeptical of whether the agents were telling the truth
if there were no inconsistencies, considering nearly five
years had passed between the arrest in 2003 and the
evidentiary hearing in 2008. In any event, what Robinson
was told at his mother’s house, and where he thought
he was heading when he got in the police car have no
bearing on whether he initiated the conversation about
firearms when he arrived at Westchester. It is perhaps
odd that having anticipated the need to retain an
attorney and clearly asserting his right to counsel, Robin-
son so quickly disregarded his attorney’s advice and
confessed his involvement with the gun trafficking con-
spiracy. Whatever doubt that this unusual twist may
have raised was likely outweighed by the district court’s
recognition of Robinson’s demonstrated propensity to
chat with law enforcement agents and his belief that he
14                                            No. 08-4251

could talk his way out of any sort of trouble. That
the district court found the issue close only demonstrates
that it carefully weighed the evidence and made a rea-
sonable finding. The district court believed the testi-
mony of Agents Ferguson and Gainer, and we refuse to
second-guess that finding.


                    III. Conclusion
  The district court did not commit clear error in finding
that Robinson initiated conversation with law enforce-
ment. Therefore, the law enforcement agents did not
interrogate Robinson in violation of his Fifth Amendment
right to counsel, and the district court properly denied
Robinson’s motion to suppress his incriminating state-
ments. Accordingly, we A FFIRM the district court’s judg-
ment.




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