US v. Larry McKnight

Before MURNAGHAN, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Clarke F. Ahlers, Columbia, Maryland, for Appellant. Lynne A. Bat-

taglia, United States Attorney, Andrew G. W. Norman, Assistant

United States Attorney, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Following the denial of his motion to suppress evidence, Larry

McKnight entered a conditional plea of guilty to a charge of bank rob-

bery in violation of 18 U.S.C.A. § 2113(a), (d), (f) (West Supp. 1999).

After the district court's order imposed his sentence, McKnight noted

his appeal from the order denying his motion to suppress.

McKnight contends that his Sixth Amendment right to counsel was

implicated when officers interviewed him about potential federal

crimes in the absence of the attorney representing him on a state

charge of robbery. McKnight contends that the state and the federal

crimes are legally related because he had entered an agreement with

the government to have his state charges dismissed in exchange for

his cooperation in the investigation of the federal crimes, provided

that he was not involved in the federal offenses.

The right to counsel under the Sixth Amendment is offense specific

and may not be relied upon in response to police officers' inquiry into

new criminal activity for which the suspect has not been indicted. See

Massiah v. United States, 377 U.S. 201, 207 (1964); United States v.

Melgar, 139 F.3d 1005, 1010 (4th Cir. 1998). An exception to the

offense-specific character of the Sixth Amendment is where the

offenses are "closely related" or "inextricably intertwined." See Mel-

gar, 139 F.3d at 1014. To determine whether the uncharged offense

is closely related to or inextricably intertwined with a charged offense

for which the defendant has invoked his right to counsel, the court

considers the time, place, and persons involved in the offenses and

determines whether the uncharged offense "derive[s] from the same

factual predicate as the charged offense." United States v. Kidd, 12

F.3d 30, 33 (4th Cir. 1993). McKnight admits that factually, the state

robbery offense and the bank robberies are not "closely related" or

"inextricably intertwined." He contends that they are legally related

because of the cooperation agreement he entered with the officials.

We find no merit to McKnight's contention. Because the state rob-

bery offense and the uncharged bank robberies did not "derive from

the same factual predicate" they were not closely related or inextrica-

bly intertwined. Therefore, the exception to the"offense-specific"

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nature of the Sixth Amendment right to counsel does not apply, and

there was no Sixth Amendment violation when the officers ques-

tioned McKnight about the uncharged bank robberies without consult-

ing the attorney representing McKnight on unrelated state charges.

McKnight also argues that his confession was involuntary because

it was given after Detective Carew stated his understanding that under

the sentencing guidelines, McKnight would only receive credit for

acceptance of responsibility if he cooperated that day. We find that

under the totality of the circumstances, see United States v. Ellie, 111

F.3d 1135, 1143-44 (4th Cir. 1997), the misstatement of the law was

not sufficiently coercive to render the resulting confession involun-

tary. See Hutto v. Ross, 429 U.S. 28, 30 (1976). Despite Carew's mis-

statement of the law as to the potential for a reduction in sentence for

acceptance of responsibility, we find that McKnight's will was not

"overborne," nor was his "capacity for self-determination critically

impaired." See United States v. Braxton, 112 F.3d 777, 781 (4th Cir.

1997).

Accordingly, we affirm the district court's order denying Mc-

Knight's motion to suppress his statements. We dispense with oral

argument because the facts and legal contentions are adequately pre-

sented in the materials before the court and argument would not aid

the decisional process.

AFFIRMED

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