                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1681
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Dennis Patrick Murphy,                   *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: November 6, 1998
                                Filed: December 9, 1998
                                    ___________

Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

      Dennis Patrick Murphy challenges his conviction by the district court1 after he
entered a conditional guilty plea to conspiring to distribute cocaine. We reject his
argument that the district court should have granted his motion to suppress statements
he made while in the custody of law enforcement officers, and affirm.




      1
      The Honorable Michael J. Melloy, Chief Judge, United States District Court for
the Northern District of Iowa.
       Murphy was arrested for violating his probation; while in custody, he made
incriminating statements to the arresting officers concerning his involvement in drug
trafficking. He moved to suppress those statements, asserting that after his arrest he
had requested to speak with his attorney, but had been unable to reach him; that the
officers had nevertheless continued their interrogation of him; and that he had been
coerced into cooperating with the officers. After a hearing, the district court denied
Murphy’s motion, crediting the testimony of the arresting officers that Murphy had
successfully reached his attorney by telephone, had held a brief conversation with him,
and upon hanging up, had announced his intention to answer the officers’ questions
regarding an ongoing drug investigation. The court found Murphy had volunteered his
statement after consulting with his attorney. Murphy appeals.

       We review the facts supporting the district court’s denial of a motion to suppress
for clear error, and review de novo the legal conclusions that are based upon those
facts. See United States v. Sykes, 144 F.3d 564, 566 (8th Cir. 1998).

        Murphy argues the district court erred because even if he had spoken with his
attorney, he could not later waive his right to have an attorney present at his
questioning unless counsel was present for such a waiver. We disagree. At the time
of his interrogation, Murphy did not yet have a Sixth Amendment right to counsel with
respect to the drug investigation underlying Murphy&s cocaine conspiracy conviction.
See McNeil v. Wisconsin, 501 U.S. 171, 175-76 (1991) (Sixth Amendment right to
counsel attaches upon commencement of adversary judicial proceedings; right is
offense-specific, and incriminating statements about crimes as to which right has not
yet attached are admissible at trial of those offenses). Instead, Murphy had a right--
based on the Fifth Amendment--to have an attorney present at his custodial
interrogation. See id. at 176-77. Once Murphy asserted this right, the officers were
required to cease their interrogation and were barred from reinitiating interrogation
unless counsel was present, see Minnick v. Mississippi, 498 U.S. 146, 153 (1990), or
unless Murphy initiated further conversation with the officers relating to their

                                          -2-
investigation, provided he knowingly and intelligently waived his right to have counsel
present, see Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983).

        The critical inquiry, therefore, is whether Murphy initiated further discussion
with respect to the drug investigation after the calls to his attorney's office and home.
The district court credited the officers’ version of events, which included testimony
from each officer that Murphy, after calling his attorney, knowingly expressed a
willingness to answer further questions. Murphy thus initiated the conversation that led
to his incriminating statements, and the record supports this conclusion. We reject
Murphy’s argument that the district court clearly erred in finding that his waiver of his
right to have counsel present was voluntary. We find no clear error in the district
court's fact findings, including its fact finding that Murphy consulted with his attorney
before he made the incriminating statements. Cf. United States v. Padilla-Pena, 129
F.3d 457, 467 (8th Cir. 1997) (“We are particularly hesitant to find clear error in the
district court’s findings of fact where those findings are based on determinations of
witness credibility.”), cert. denied, 118 S. Ct. 2063, and cert. denied, 118 S. Ct. 2064
(1998).

       Because the district court's credibility findings support the conclusion that
Murphy voluntarily initiated his conversation with the officers, his statements are not
subject to suppression. Accordingly, we affirm the judgment of the district court. See
United States v. Abadia, 949 F.2d 956, 958 n.12 (8th Cir. 1991) (noting court of
appeals may affirm on any basis supported by record), cert. denied, 503 U.S. 949
(1992).

      A true copy.

             Attest:

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

                                          -3-
