                                                                RECOMMENDED FOR FULL-TEXT PUBLICATION
16   United States v.          Nos. 98-6044/6048/6216                Pursuant to Sixth Circuit Rule 206
     Marks, et al.                                          ELECTRONIC CITATION: 2000 FED App. 0124P (6th Cir.)
                                                                        File Name: 00a0124p.06

                  III. CONCLUSION
 The judgment of the district court is AFFIRMED.        UNITED STATES COURT OF APPEALS
                                                                       FOR THE SIXTH CIRCUIT
                                                                         _________________


                                                                                      ;
                                                                                       
                                                         UNITED STATES OF AMERICA,
                                                                                       
                                                                  Plaintiff-Appellee,
                                                                                       
                                                                                       
                                                                                              Nos. 98-6044/
                                                                    v.
                                                                                       
                                                                                              6048/6216
                                                                                        >
                                                         JAMES D. MARKS (98-6044),     
                                                         MAURICE NAVARRO BROOKS 
                                                                                       
                                                                                       
                                                         (98-6048), ROBERT LEE

                                                               Defendants-Appellants. 
                                                         AGUON (98-6216),
                                                                                      1
                                                               Appeal from the United States District Court
                                                            for the Western District of Kentucky at Louisville.
                                                            No. 97-00024—Thomas B. Russell, District Judge.
                                                                       Argued: January 25, 2000
                                                                    Decided and Filed: April 6, 2000
                                                          Before: NELSON, SUHRHEINRICH, and GILMAN,
                                                                         Circuit Judges.
                                                                          _________________
                                                                               COUNSEL
                                                        ARGUED: Armand I. Judah, Louisville, Kentucky, Michael
                                                        L. Boylan, Louisville, Kentucky, Vincent F. Heuser, Jr.,
                                                        Louisville, Kentucky, for Appellants. Terry M. Cushing,

                                                                                    1
2    United States v.               Nos. 98-6044/6048/6216       Nos. 98-6044/6048/6216                  United States v.    15
     Marks, et al.                                                                                         Marks, et al.

ASSISTANT UNITED STATES ATTORNEY, Louisville,                    proceedings, competency examinations, and other procedural
Kentucky, for Appellee. ON BRIEF: Armand I. Judah,               matters. See 18 U.S.C. § 3161(h).
Louisville, Kentucky, Michael L. Boylan, Louisville,
Kentucky, Vincent F. Heuser, Jr., Louisville, Kentucky, for         Aguon raised the Speedy Trial Act issue on the morning of
Appellants. Terry M. Cushing, David J. Hale, ASSISTANT           trial and asked the court to dismiss the case against him,
UNITED STATES ATTORNEYS, Louisville, Kentucky, for               which the court denied. After admitting that he filed motions
Appellee.                                                        and requests for his own benefit that would have tolled the
                                                                 Speedy Trial Act, Aguon simply asserts that “the delay in
                    _________________                            bringing him to trial was a violation of the act . . . .”
                                                                 (Aguon’s Brief at 18). Aguon does not specify which part of
                        OPINION                                  the delay violated the Speedy Trial Act.
                    _________________
                                                                    In this case, the district court made several Speedy Trial
  SUHRHEINRICH, Circuit Judge. Defendants Maurice                findings: (1) after Brooks moved to continue the original
Navarro Brooks, James Marks, and Robert L. Aguon appeal          sentencing date, (2) after change in counsel for a codefendant,
their jury convictions and sentences on multiple counts of       (3) after the district court granted Defendants’ motions to
bank robbery, armed bank robbery, and carrying a firearm         withdraw their pleas, and (4) after the district court severed
during a crime of violence. Defendants raise seven issues.       Aguon and Myles’ trial from Brooks and Marks’ trial. The
                                                                 district court found that the case as to Aguon and Myles was
                    I. BACKGROUND                                complex because of the withdrawal of the plea, the severance
                                                                 order, and the Government’s difficulty in compelling the
  Brooks committed nine armed bank robberies in and around       testimony of Defendants who were already sentenced.
Louisville, Kentucky, from July through December 1996.
Nine people were charged with either participating directly in     Defendants withdrew their guilty pleas on March 17, 1998,
the robberies or with assisting the principals at different      which became the day of their indictment for Speedy Trial
times. Marks allegedly participated in seven of the robberies    Act purposes. See 18 U.S.C. § 3161(i); United States v.
but was convicted of only six. Aguon participated in the last    Bond, 956 F.2d 628, 630 (6th Cir. 1992). Brooks and Marks
two robberies.                                                   were tried on May 19, 1998, and Aguon’s trial was severed on
                                                                 the same day. Aguon’s trial started July 6, 1998. However,
   Brooks, Marks, Aguon, and Bernard Williams committed          the district court first decided Aguon’s motion to suppress the
the ninth robbery on December 20, 1996. As they were             testimony of witnesses with plea agreements.
leaving the bank, a Louisville police officer drove into the
bank parking lot. The four robbers split into pairs. Brooks        Most of the delay was caused by Defendants changing their
and Williams fled in Williams’ car but were arrested after a     pleas and filing pretrial motions, all of which Aguon appears
high speed chase. Immediately after Brooks’ arrest, he asked     to admit. As to the other delays, the district court made
a police officer how much time he would get and commented        appropriate findings to exclude the delays. Accordingly, the
that the officer did a “good job.”                               district court did not err in denying Aguon’s motion to
                                                                 dismiss under the Speedy Trial Act grounds.
 Meanwhile, Marks and Aguon entered a nearby flower shop
where Marks called his stepmother for a ride and bought her
14    United States v.               Nos. 98-6044/6048/6216        Nos. 98-6044/6048/6216                 United States v.     3
      Marks, et al.                                                                                         Marks, et al.

  To suppress evidence of a pretrial identification, a             a stuffed animal. She picked them up at the florist and drove
defendant must first show that the procedure was                   them to her home. Later, an employee of the florist also
impermissibly suggestive. If a defendant shows this, then the      found a bag of money on the premises. A few days after the
district court must evaluate the totality of the circumstances     robbery, the flower shop employees identified Marks and
to determine whether the identification was reliable. See          Aguon from standard photographic lineups. However, one
Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994); see      employee could not identify Aguon.
also United States v. Causey, 834 F.2d 1277, 1286 (6th Cir.
1987).                                                                After leaving the Marks’ home, Marks and Aguon traveled
                                                                   to Oklahoma where they stayed with William Hayes. Hayes
  The district court reviewed the photographic array before        later testified that Marks and Aguon said that they robbed a
the trial and concluded that the photographic lineup was not       bank.
impermissibly suggestive. During the trial, the court required
the Government to voir dire the witness from the flower shop         Marks and Aguon were apprehended and arraigned on
outside the presence of the jury to establish a foundation for     March 19, 1997. Brooks was arraigned on March 26, 1997.
her testimony about her pretrial identification of Aguon.          The court scheduled trial for all three defendants for May 19,
During the voir dire, the witness testified that she was shown     1997. Before trial, Defendants filed several motions. Aguon
the photographic lineup, filled out an identification sheet, and   moved for discovery, to suppress photographic identification,
signed it, indicating her identification of Aguon. The witness     to sever, and to enlarge time to file additional motions.
essentially repeated this testimony for the jury. The              Marks also moved for discovery and to sever both defendants
investigating police officer testified that he used standard       and offenses. The district court judge denied the motions to
procedures.                                                        suppress, sever, and for discovery.
  Because Aguon failed to demonstrate that the procedure              After Brooks’ original counsel withdrew on April 23, 1997,
utilized by the Louisville Police Department was unduly            Brooks' new attorney moved to continue the trial, which the
suggestive, the testimony and evidence of the pretrial             district court rescheduled to August 18, 1997. The district
identification of Aguon was properly admitted.                     court also made Speedy Trial Act findings. On July 16, 1997,
                                                                   the case was reassigned to another district judge. Brooks then
  G. Speedy Trial Act. Aguon claims that the delay of over         moved to sever, to suppress evidence, and to exclude two of
two years in trying him violates the Speedy Trial Act. The         his prior statements. Aguon also moved to exclude his
Court reviews the district court’s interpretation of the Speedy    statements when he was arrested and to suppress the
Trial Act de novo and its factual findings for clear error. See    photographic lineup identification. The district court denied
United States v. Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994).      all these motions.
  The Speedy Trial Act requires that a defendant’s trial begin       On August 18, 1997, the morning of trial, Marks, Brooks,
within seventy days of the filing date of the indictment or        and Aguon agreed to plead guilty to all counts and to
arraignment, whichever is later. See 18 U.S.C. § 3161(c)(1).       cooperate completely and fully in the ongoing investigation of
However, the seventy-day rule is subject to excludable             the nine bank robberies. The plea agreements were for
periods of delay for consideration of motions, pretrial            specific sentences under Federal Rule of Criminal Procedure
                                                                   11(e)(1)(C). If Defendants failed to cooperate fully, the
4    United States v.                Nos. 98-6044/6048/6216        Nos. 98-6044/6048/6216                   United States v.     13
     Marks, et al.                                                                                            Marks, et al.

Government could move for relief from the agreement. The           exchange for truthful testimony is not an illegal witness
district court accepted the pleas and set sentencing for each      gratuity. This court’s opinion in Ware unequivocally
Defendant for November 7, 1997.                                    forecloses defendants’ argument.
   On October 22, 1997, the Government moved to continue             Ware was decided on December 3, 1998. Defendants
the sentencing because Defendants had not completed their          submitted their proof briefs in late January of 1999, nearly
cooperation under the plea agreements. Marks objected to the       two months later. They do not mention Ware. Instead, they
continuance. Defendants Brooks and Marks responded that            excoriate the government for its use of “bribed testimony”
they were dissatisfied with their plea agreements and moved        that was “illegally obtained”—as if Ware had never been
to withdraw their guilty pleas. After the district court advised   decided. During all of the time between the submissions of
Brooks and Marks of their possible sentences, they                 their proof briefs in January of 1999 and oral argument in
reconsidered and maintained their guilty pleas. The district       January of 2000, counsel never acknowledged, as permitted
court reset Defendants’ sentencing to February 2, 1998.            by Rule 28(j) of the Federal Rules of Appellate Procedure,
                                                                   that Ware had been decided and that their argument was
  In early December, 1997, Codefendant James Myles,                foreclosed as a result.
previously a fugitive, was arrested. His trial was set for
March 26, 1998. The Government again moved to continue                At oral argument, counsel admitted that they knew about
Defendants' sentencing because Marks and Brooks would              Ware, but did not cite it in their briefs because they were “not
both testify against Myles. The district court reset the           sure where it would go in the appellate process.” Presumably
sentencing of Brooks, Marks, and Aguon to April 3, 1998.           this meant that they hoped (unrealistically, in our view) that
                                                                   either this court en banc or the Supreme Court of the United
   On February 27, 1998, Brooks, Marks, and Aguon jointly          States would overturn Ware. Because Ware is a published
moved pro se to set aside their plea agreements. They              decision of this court directly contrary to Defendants’
claimed that the Government threatened their family and            position, it should have been disclosed. See MODEL RULES OF
friends with prosecution if Defendants did not accept the plea     PROFESSIONAL CONDUCT Rule 3.3(a)(3) (“A lawyer shall not
bargains and that their defense counsel constantly pressured       knowingly fail to disclose to the tribunal legal authority in the
them to accept the plea agreements. On March 17, 1998, the         controlling jurisdiction known to the lawyer to be directly
court heard Defendants’ motion and received testimony. The         adverse to the position of the client and not disclosed by
court rejected their claims of coercion, finding their proffered   opposing counsel”); Rule 3.3(b) (providing that this duty
testimony not credible. The court also denied Defendants’          continues “to the conclusion of the proceeding.”).
motions for new counsel. At the hearing, the Government
also stated that it would offer Defendants’ incriminating post-      F. Photographic Identification. Aguon claims that the
plea statements made while they were cooperating with the          district court improperly admitted evidence that a witness
Government. The district court allowed Defendants to               identified him in a photographic array. This Court reviews a
withdraw their pleas, made Speedy Trial Act findings, and set      district court's factual findings in a motion to suppress
trial for May 18, 1998.                                            evidence for clear error and its conclusions of law de novo.
                                                                   See United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.
 Before trial, Brooks, Marks, and Aguon renewed several            1992).
motions and also moved to suppress their incriminating post-
12   United States v.               Nos. 98-6044/6048/6216       Nos. 98-6044/6048/6216                  United States v.     5
     Marks, et al.                                                                                         Marks, et al.

Allen, 160 F.3d 1096, 1106 (6th Cir. 1998); United States v.     plea statements. The Government moved to admit the
Hudson, 53 F.3d 744, 747 (6th Cir.1995).                         statements, which the district court granted. The court
                                                                 concluded that the exclusionary provision for statements
   Brooks and Marks did not renew their motions to sever at      made during plea discussions did not apply to post-plea
the conclusion of the trial and, thereby, waived the issue for   statements and that Defendants’ post-plea statements were
appeal. However, even if the issue were preserved, the           otherwise voluntary and, therefore, admissible.
district court did not abuse its discretion because Brooks and
Marks failed to show “compelling, specific, and actual             The court also found joinder of Brooks, Marks, Aguon and
prejudice.” See Sherlin, 67 F.3d at 1215. Defendants’            Myles proper under Federal Rule of Criminal Procedure 8.
defenses were not mutually exclusive. Further, Brooks and        The district court denied Brooks’ motion to suppress his post-
Marks did not show that the jury was unable to “separate and     arrest statement, “How much time am I going to get for this?”
treat distinctively evidence relevant to each particular         because Brooks did not show that the statement was
defendant.” Medina, 992 F.2d at 587. In fact, the jury           involuntary. The district court denied Aguon’s motion to
acquitted Marks of his alleged role in the seventh robbery, as   suppress a photographic identification of him by an employee
charged in Counts 20, 21, and 22 of the indictment, while        of the flower shop. Finally, the district court denied Marks’s,
convicting Brooks of his role in the same robbery. Clearly,      Brooks’s, and Aguon’s objections to the Government’s
the jury did separate and distinguish the evidence between       intention to introduce evidence of prior bad acts.
Brooks and Marks. Accordingly, we affirm the district
court’s denial of Brooks’ and Marks’ motions to sever.             On May 19, 1998, the morning of trial, the court
                                                                 reconsidered severance and severed the trial of Aguon and
  E. Purchased Testimony. Defendants claim that the              Myles from the trial of Brooks and Marks, with appropriate
testimony of cooperating witnesses who received favorable        Speedy Trial Act findings. Brooks and Marks were tried
plea bargains in exchange for their promises of truthful         beginning May 19, 1998, and convicted on May 29, 1998.
testimony should have been excluded because the                  Marks was sentenced to 1875 months, and Brooks was
Government’s inducement of this testimony violated the           sentenced to 2722 months. The court later corrected their
federal witness anti-gratuity statute, 18 U.S.C. § 201(c)(2).    sentences under United States v. Sims, 975 F.2d 1225 (6th
They rely on the Tenth Circuit’s decision in Singleton v.        Cir. 1992), and reduced them by 480 months to 1395 months
United States, 144 F.3d 1343 (10th Cir. 1998) (holding that      and 2242 months respectively.
prosecutors’ offers of favorable plea agreements in exchange
for truthful testimony against accomplices or coconspirators        On July 6, 1998, the morning of trial, Aguon moved to
violate the statute and must be excluded), which was vacated     suppress the testimony of witnesses who testified pursuant to
by the en banc Tenth Circuit within two weeks of the date it     plea agreements, which the court denied. Aguon also moved
was filed and ultimately repudiated. See Singleton v. United     to suppress his post-plea statements to the FBI claiming that
States, 165 F.3d 1297 (10th Cir.) (en banc), cert. denied, 119   they were not voluntary. After taking testimony, the court
S. Ct. 2371 (1999). In United States v. Ware, 161 F.3d 414       denied the motion. The jury convicted Aguon on all counts.
(6th Cir. 1998), cert. denied, 119 S. Ct. 1348 (1999), this      The district court sentenced Aguon to 438 months.
court, like every other circuit to have considered the issue,
rejected the Tenth Circuit panel’s analysis and concluded,
among other things, that a prosecutor’s offer of leniency in
6      United States v.                Nos. 98-6044/6048/6216       Nos. 98-6044/6048/6216                    United States v.     11
       Marks, et al.                                                                                            Marks, et al.

                       II. DISCUSSION                               and that the district court erred by not instructing the jury that
                                                                    they were permitted—but not required—to find that banks
  A. Suppression of Post-plea Incriminating Statements.             located in Louisville are also located in the Western District
Defendants contend that their post-plea statements should           of Kentucky, it is difficult to imagine any error that would be
have been excluded. This Court reviews factual findings             more clearly harmless beyond a reasonable doubt.
about a confession for clear error, but reviews the ultimate
question of voluntariness de novo. See United States v.               The Government also established through the testimony of
Wrice, 954 F.2d 406, 410-11 (6th Cir. 1992).                        bank employees in both trials that the banks were federally
                                                                    insured. In Aguon’s trial, the Government also submitted
   Federal Rule of Criminal Procedure 11(e)(6) treats the           certificates of insurance for the banks from the Federal
inadmissibility of pleas, plea discussions, and related             Deposit Insurance Corporation (“FDIC”). At trial, none of the
statements:                                                         Defendants challenged the federally insured status of the
                                                                    banks.
    Except as otherwise provided in this paragraph, evidence
    of the following is not, in any civil or criminal                 This Court has held similar evidence as sufficient proof of
    proceeding, admissible against the defendant who made           a bank being federally insured. See United States v. Wood,
    the plea or was a participant in the plea discussions:          780 F.2d 555, 556-57 (6th Cir. 1986) (holding that the
                                                                    unrebutted testimony of a bank security officer was
    (A) a plea of guilty which was later withdrawn;                 sufficient). See also United States v. Harris, 165 F.3d 1062,
                                                                    1066 (6th Cir. 1999); United States v. Rowan, 518 F.2d 685,
    (B) a plea of nolo contendere;                                  692-93 (6th Cir. 1975). Considering this evidence in the light
                                                                    most favorable to the Government, we find that there was
    (C) any statement made in the course of any proceedings         sufficient evidence for the jury to find beyond a reasonable
    under this rule regarding either of the foregoing pleas; or     doubt that the robbed banks were federally insured.
    (D) any statement made in the course of plea discussions        Accordingly, we reject this claim of error.
    with an attorney for the government which do not result           D. Severance. Defendants Brooks and Marks claim that
    in a plea of guilty or which result in a plea of guilty later   their joinder was prejudicial to their defenses. To prevail on
    withdrawn.                                                      a claim of misjoinder, a defendant must show compelling,
Fed. R. Crim. P. 11(e)(6).                                          specific, and actual prejudice from the misjoinder of
                                                                    defendants or offenses. See United States v. Sherlin, 67 F.3d
  After Defendants entered their plea agreements, FBI               1208, 1215 (6th Cir. 1995); United States v. Epley, 52 F.3d
Special Agent Wight spoke to the Defendants with their              571, 578 (6th Cir. 1995); United States v. Medina, 992 F.2d
defense counsel either present or informed of the interview.        573, 587 (6th Cir. 1993). This Court reviews denial of
The court cautioned Defendants about the possible admission         severance motions for abuse of discretion. See Zafiro v.
of their post-plea statements when they moved to withdraw           United States, 506 U.S. 534, 541 (1993); Sherlin, 67 F.3d at
their pleas.                                                        1215. A motion to sever must be renewed at the close of
                                                                    evidence to be preserved for appeal. See United States v.
10   United States v.               Nos. 98-6044/6048/6216        Nos. 98-6044/6048/6216                  United States v.     7
     Marks, et al.                                                                                          Marks, et al.

508 U.S. at 137. The Sixth Circuit has upheld similar               In this case, the district court found that (1) Defendants’
mandatory minimum sentences involving firearms. See, e.g.,        admissions, which the Government wanted to admit, were
United States v. Duerson, 25 F.3d 376 (6th Cir. 1994) (157        made after Defendants’ plea agreements had been finalized
months for robbery with short barrel shotgun). Accordingly,       and entered, and (2) the plea negotiations did not extend
we find that Brooks’ and Marks’ sentences did not violate the     beyond their signing and filing. The court concluded that
Eighth Amendment.                                                 Federal Rule of Criminal Procedure 11(e)(6) did not apply
                                                                  because the statements were not made during the plea
  C. Proof of Venue and Federal Insurance. Defendants             discussions.
claim that the Government did not prove the elements of
venue and the federally insured status of the robbed banks.          Defendants rely on United States v. Brooks, 536 F.2d 1137
Brooks and Marks moved for acquittal at the close of proofs       (6th Cir. 1976), and United States v. Herman, 544 F.2d 791
arguing that the Government failed to prove the venue             (5th Cir. 1977), for the proposition that statements made to
element. Aguon, however, did not raise this issue at the close    law enforcement officers pursuant to a plea agreement then in
of the Government’s proof and thus failed to preserve it for      effect are statements “made in the course of plea discussions.”
appellate review. See United States v. English, 925 F.2d 154,     Their reliance is misplaced. Congress amended Rule 11(e)(6)
156 (6th Cir. 1991).                                              in 1979; it did so in part to abrogate decisions such as Brooks
                                                                  and Herman, because they manifested what Congress thought
  Brooks and Marks argue that even though the jury was            was a too-broad view of the plea negotiation process. See
presented with evidence that the robbed banks were located        United States v. Sebetich, 776 F.2d 412, 421 (3d Cir. 1985)
in Louisville, Jefferson County, Kentucky, no witness ever        (“Prior to its amendment, the rule provided for the exclusion
specifically testified that the banks were located in the         of ‘statements made in connection with, and relevant to, any
Western District of Kentucky. The district court took judicial    of the foregoing pleas or offers.’ . . . Some courts construed
notice that Louisville is part of the Western District of         this rule liberally. . . . The legislative history of the 1979
Kentucky. Brooks and Marks argue that this was improper           amendments manifests congressional disapproval of broad
because Rule 201(g) of the Federal Rules of Evidence              judicial constructions of the previous language, and the
requires district courts in criminal cases to instruct the jury   revision of the rule appears to have been designed specifically
“that it may, but is not required to, accept as conclusive any    to avoid the result in Herman and other cases reaching similar
fact judicially noticed.”                                         results.”). The Third Circuit in Sebetich specifically
                                                                  identified Brooks as one of the “other cases reaching similar
    We are not persuaded. For one thing, 28 U.S.C. § 97(b)        results.” Id. Rule 11(e)(6)(D) now renders inadmissible only
specifically provides that “[t]he Western District [of            statements that were “made in the course of plea discussions
Kentucky] comprises the counties of . . . Jefferson . . . [and]   with an attorney for the government . . . .” FED. R. CRIM. P.
Court for the Western District shall be held at . . .             11(e)(6)(D) (emphasis added). FBI agents cannot negotiate
Louisville. . . .”. Thus, we seriously doubt whether              plea agreements with defendants, so statements that
Louisville’s presence in the Western District of Kentucky is      defendants make to them are not “made in the course of plea
a “fact” of which the court needed to take judicial notice. But   discussions.” See Sebetich, 776 F.2d at 422 (rejecting the
even if it were an issue of fact, it is certainly not one about   arguments that self-incriminating statements made to a local
which jurors could rationally disagree. Therefore, even           police chief were protected by Rule 11(e)(6) because, among
assuming for the sake of argument that it was an issue of fact,   other reasons, the police chief was not an “attorney for the
8    United States v.                Nos. 98-6044/6048/6216        Nos. 98-6044/6048/6216                   United States v.     9
     Marks, et al.                                                                                            Marks, et al.

government.”). In any event, statements made after a plea          Aguon, his girlfriend, and Special Agent Wight. The post-
agreement is finalized are not “made in the course of plea         plea statements were made in the presence of or with the
discussions.” See United States v. Watkins, 85 F.3d 498, 500       knowledge of Defendants’ attorneys. The district court did
(10th Cir. 1996); United States v. Lloyd, 43 F.3d 1183, 1186       not believe Aguon’s testimony that he was coerced because of
(8th Cir. 1994); United States v. Davis, 617 F.2d 677, 685         the alleged threatened prosecution. Accordingly, the court
(D.C. Cir. 1979) (“Excluding testimony made after—and              found that Aguon’s statements were not coerced. We find
pursuant to—the agreement would not serve the purpose of           that Aguon has not shown that the district court’s factual
encouraging compromise”).                                          findings were clearly erroneous. Accordingly, we affirm the
                                                                   ruling of the district court that admitted Defendants’ post-plea
   Defendants made their statements to the FBI agent after         incriminating statements.
they negotiated their plea agreements and pleaded guilty.
Accordingly, Federal Rule of Criminal Procedure 11(e)(6)             B. Length of Sentences. Defendants Brooks and Marks
does not apply, and their statements were admissible.              claim that the length of their sentences amounts to cruel and
Nevertheless, even if Rule 11(e)(6) applied, admission of the      unusual punishment. Brooks and Marks essentially challenge
statements was harmless error. See Fed. R. Crim. P. 52(a);         the proportionality of the mandatory sentencing provision. A
Milton v. Wainwright, 407 U.S. 371, 377-78 (1972). There           constitutional challenge to a sentence is a question of law and
was testimony from other participants in the robberies that        reviewed de novo. See United States v. Lloyd, 10 F.3d 1197,
Defendants robbed the banks and also other circumstantial          1220 (6th Cir. 1993).
evidence that would support Defendants’ conviction.
Defendants did not show that, in the absence of their                Title 18 U.S.C. § 924(c) requires enhanced consecutive
confessions, the evidence was insufficient.                        sentencing for its violation. See Deal v. United States, 508
                                                                   U.S. 129, 132-133 (1993). The Supreme Court has
   Aguon also claims he entered the plea agreement and gave        determined that strict proportionality between a crime and its
a confession because he was coerced. Generally, voluntary          punishment is not required. See Harmelin v. United States,
statements are admissible. See Miranda v. Arizona, 384 U.S.        501 U.S. 957, 959-960 (1991) (upholding Michigan's penalty
436, 478 (1966). The test for voluntariness is whether the         of life imprisonment without parole for possession of more
confession was the product of free and rational choice. See        than 650 grams of cocaine). The Sixth Circuit has adopted
United States v. Murphy, 763 F.2d 202, 205 (6th Cir.1985).         the “narrow proportionality principle” of Harmelin. See
If a defendant was subject to objectively coercive activity that   United States v. Hopper, 941 F.2d 419, 422 (6th Cir. 1991).
overcame his free will, a defendant's statement cannot be used     Consequently, only an extreme disparity between crime and
against him. See United States v. Rigsby, 943 F.2d 631, 635        sentence offends the Eighth Amendment. See id.
(6th Cir. 1991). Determining the voluntariness of a statement
requires an analysis of the totality of all the circumstances.       In this case, no disparity exists between the multiple crimes
See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);           and the sentence in the cases of Brooks and Marks. Brooks
McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988); 18             committed nine armed bank robberies within six months.
U.S.C. § 3501(b).                                                  Marks participated in six of the robberies. In a case involving
                                                                   similar facts, the Supreme Court held that a 105-year sentence
  In the present case, the district court held a suppression       following conviction of six armed robberies with attendant
hearing on the morning of trial and received testimony from        convictions under 18 U.S.C. § 924(c) is not unjust. See Deal,
