[PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                       ________________________

                            No. 96-2916
                     ________________________
                  D. C. Docket No. 95-49-CR-J-20

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

     versus

JAMES ARTHUR GRIMES,

                                                  Defendant-Appellant.

                       ________________________

          Appeal from the United States District Court
               for the Middle District of Florida
                    _________________________
                          (June 8, 1998)


Before ANDERSON and BLACK, Circuit Judges, and HOEVELER*, Senior
     District Judge.




     *
      Honorable William M. Hoeveler, Senior U.S. District Judge for
the Southern District of Florida, sitting by designation.
BLACK, Circuit Judge:

      On March 18, 1996, a jury convicted Appellant James Arthur Grimes of

knowingly and maliciously damaging a building used in or affecting interstate

commerce by means of explosive, in violation of 18 U.S.C. § 844(i). The judge

sentenced Grimes to life imprisonment. Grimes appeals several issues arising from

the investigation that resulted in the charge, his trial, and his sentencing. We hold

that the district court did not err by denying Grimes’ motion to suppress and that

there was no reversible error in Grimes’ trial or sentencing procedures. We

therefore affirm Grimes’ conviction and sentence.

                               I. BACKGROUND

      Appellant Grimes worked as a maintenance supervisor for Cedar Cove

Apartments in Jacksonville, Florida, in the late 1980s. The manager of Cedar Cove,

Kathy Todaro, eventually fired Grimes saying that (1) he had been unresponsive to

pages; (2) he was operating a business on company time using company materials; and

(3) there was a discrepancy in his overtime hours. Grimes stated that he knew many

people wanted him out of the company, but suggested that Todaro wanted him out so

that the assistant maintenance supervisor could have the job.

      After he was fired, Grimes told a friend that he was going to “blow up the

bitch” who fired him. He said he could tamper with the boiler in the laundry room


                                         2
and blow up the whole crew. He also suggested there were other ways he could harm

the complex.

       On March 19, 1990, Sherwin Douglas Finlay observed a package on the floor

outside of his apartment (# 101) at Cedar Cove.1 The package was marked “Ballast.”

When Finlay picked up the package, it exploded. Finlay suffered severe injuries and

died as a result of the blast. The apartment complex also sustained serious damage

from the explosion.

       As neighbors moved toward the explosion, two of them observed a man with

a smirk on his face walking casually away from the scene. The two neighbors later

picked Grimes’ picture from a photo line-up and identified him in court as the man

they saw walk away from the bombing.

       Grimes later began to work for Kenneth Pender as a “gofer.” When Grimes and

Pender encountered difficulty repairing the electrical system at a hunting lodge,

Grimes began talking about electrical switches and timers. Grimes described the

button on a refrigerator as working “like the button on the steel plate at the bombing

at Cedar Cove.” Grimes also had crying spells during which he told Pender, “I called,




       1
         During the time that Grimes was employed by Cedar Cove, apartment 101 was used to store
supplies for the maintenance crew.

                                               3
I told the bitch I was going to blow up the place” and “it wasn’t meant for the old

man. It wasn’t even the maintenance man that took my place.”

       On October 11, 1994, Pender met with an investigator from the state attorney’s

office and reported that Grimes had divulged many details regarding the Cedar Cove

bombing.      Pender agreed to cooperate with investigators2 and to tape future

conversations with Grimes.

       On December 13, 1994, Grimes was arrested on worthless check charges. The

following day, counsel was appointed and Grimes signed a claim of rights form.3

Copies were placed in the court and jail files and a copy was served on both the state’s

attorney and the Jacksonville Sheriff’s Office (JSO).

       While in jail, Grimes told a fellow inmate, “I placed the bomb there, but I didn’t

intend — the man was an accident. I didn’t intend, you know, to hurt nobody, just to

be property damage and scare some of the tenants and cause them problems and

money.” Before his arrest, Grimes talked about Cedar Cove with a friend, telling him

that “the Lord would get him for it, and he shouldn’t have done it.”




       2
         The investigation was conducted through a joint effort of the Jacksonville Sheriff’s Office
and the state attorney’s office.
       3
       Through this form, Grimes purported to assert his right to counsel under the Sixth
Amendment and his right to remain silent and right to counsel under the Fifth Amendment.

                                                 4
      Grimes began calling Pender from jail. Pender accepted approximately 70

collect calls from Grimes and recorded many of those conversations. Pender also

visited Grimes at the jail. On January 22 or 23, 1995, investigators told Pender to

solicit incriminating statements from Grimes. During a visit to the jail, Pender, at the

direction of investigators, told Grimes that he knew some people who were involved

in illegal activities and were interested in hiring someone with expertise in burning

and bombing. Thereafter, Grimes and Pender talked many times about Grimes’

interest in working for these people and his ability and experience regarding arson and

bombing.

      On February 8, 1995, Grimes pled guilty to the worthless check charges and

was released from jail.      Pender, at Grimes’ request and on direction from

investigators, picked Grimes up from jail. Grimes and Pender drove to a hotel in St.

Augustine to meet with the people who were interested in hiring someone experienced

with bombs. This, of course, was a ruse and the individuals waiting for Grimes and

Pender were actually undercover investigators. Pender told Grimes that he could

change his mind and Pender would take him to their hunting camp. He told Grimes

that he did not have to meet with the business man “Frank,” but Grimes said that he

wanted to meet Frank. During the meeting, Grimes divulged many details about the

Cedar Cove bomb.


                                           5
       After the meeting, Grimes and Frank got in a car and headed back towards

Jacksonville. On the way, a JSO officer stopped them, appeared to take Frank into

custody, and asked Grimes to come to the police station. At the police station, officers

arrested Grimes on a state charge of arson of his mother’s home.4

       On April 5, 1995, a federal grand jury indicted Grimes for knowingly and

maliciously damaging a building used in or affecting interstate commerce by means

of an explosive. The trial began on March 7, 1996. Grimes was convicted by the jury

and sentenced to life imprisonment by the trial judge.

                                       II. DISCUSSION

       On appeal, Grimes makes the following arguments: (1) 18 U.S.C. § 844(i) is

unconstitutional both facially and as applied; (2) Grimes was improperly denied

benefits normally afforded to a person accused of a capital offense; (3) the district

court erred by failing to suppress certain evidence obtained in violation of Grimes’

Fifth and Sixth Amendment rights; and (4) application of amended limitations and

sentencing statutes violated the Ex Post Facto Clause of the Constitution.5


       4
           Prior to arrest, Grimes admitted that he burned his mother’s home to keep his uncle from
getting it in foreclosure.
       5
          Grimes makes several additional arguments that merit no discussion here: (1) the district
court erred by substituting an alternate juror; (2) Grimes was denied his constitutional right to
indictment by grand jury; (3) the grand jury was improperly advised of the penalties attached to the
crime; (4) the district court erred by admitting extrinsic act evidence under Rule 404(b) of the
Federal Rules of Evidence; and (5) the grand and petit juries were improperly informed of the death

                                                 6
A.     Constitutionality of § 844(i)

       Grimes argues that § 844(i) is unconstitutional both facially and as applied

to him in this case. The argument is based on United States v. Lopez, 

,

(1995), in which the Supreme Court found that the Gun Free School

Zones Act was unconstitutional because it exceeded Congress’s commerce clause

authority.

       The argument that § 844(i) is facially unconstitutional is without merit.

Every circuit examining the issue after Lopez has determined that Congress did not

exceed its commerce clause authority when it enacted § 844(i). See United States

v. Gaydos, 

, 508 (3d Cir. 1997); United States v. Corona, 

,

570 (5th Cir. 1997); United States v. McMasters, 

, 1398 (8th Cir.

1996); United States v. DiSanto, 

, 1245-46 (1st Cir. 1996); United

States v. Sherlin, 

, 1213-14 (6th Cir. 1995). We also hold that § 844(i)

is constitutional on its face.

       Grimes also argues that, even if § 844(i) is constitutional on its face, the

Government did not show that the apartment building damaged by the explosion in

this case had the requisite interstate commerce nexus.          We hold that the

Government demonstrated the necessary interstate commerce connection.


of the victim. We affirm. See 11th Cir. R. 36-1.

                                               7
      In Russell v. United States, 

, 862, 

, 2457 (1985),

the Supreme Court found that § 844(i) “only applies to property that is ‘used’ in an

‘activity’ that affects commerce. The rental of real estate is unquestionably such

an activity.” In Russell, the Supreme Court upheld the defendant’s § 844(i)

conviction, in the face of a commerce clause challenge, for attempting to burn a

two-unit apartment building. The Court noted that “the legislative history suggests

that Congress at least intended to protect all business property, as well as some

additional property that might not fit that description, but perhaps not every private

home.” 

examining Russell, including this one, have agreed that

Russell remains authoritative precedent even after Lopez. See Belflower v. United

States, 

, 1462 (11th Cir. 1997); United States v. Chowdhury, 

, 743 (11th Cir. 1997); United States v. Tocco, 

, 124 (2d Cir. 1998),

pet. for cert. filed, No. 97-1596 (Mar. 27, 1998); United States v. Nguyen, 

, 798 (5th Cir.), cert. denied, 

(1997); United States v. Gaydos, 

, 508 (3d Cir. 1997); United States v. DiSanto, 

, 1245 (1st Cir.

1996).   The apartment building damaged in this case satisfies the interstate

commerce nexus of § 844(i) under the Russell standard. No constitutional violation

results from the application of § 844(i) to Grimes here.

B.    Benefits Afforded to a Capital Defendant


                                          8
       Grimes argues that he should have received all of the procedural benefits

afforded to a person in a capital case6 even though the Government stated, on the

record prior to trial, that it would not seek the death penalty in this case. This issue

is controlled by binding precedent7 which is in accord with a majority of other circuits.

See United States v. Kaiser, 

, 475 (5th Cir. 1977); United States v.

Crowell, 

, 325 (5th Cir. 1974); United States v. Hoyt, 

, 571

(5th Cir. 1971); United States v. Goseyun, 

, 1387 (9th Cir. 1986);

United States v. Shepherd, 

, 727-29 (7th Cir. 1978); United States v.

Weddell, 

(8th Cir. 1977); United States v. Maestas, 

, 319

(10th Cir. 1975); Loux v. United States, 

, 915 (9th Cir. 1968). The cited

cases all indicate that a defendant is not entitled to benefits he would otherwise

receive in a capital case if the government announces that it will not seek the death

penalty or the death penalty is otherwise unavailable by force of law.8 Grimes was

properly denied benefits afforded to a capital defendant because the Government

       6
         A capital defendant has the right to two appointed lawyers, 18 U.S.C. § 3005, a copy of
the government’s witness list and the venire three days before trial, 18 U.S.C. § 3432, and 20
peremptory challenges, Fed. R. Crim. P. 24(b).
       7
         In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.
       8
           Only the Fourth Circuit has reached the conclusion that benefits afforded to capital
defendants are available anytime the offense is punishable by death regardless of whether the death
penalty is actually being sought. United States v. Watson, 

(4th Cir. 1973).

                                                9
stipulated that it would not seek the death penalty and thereby transformed this case

into a non-capital proceeding.

C.    Admission of Grimes’ Statements

      When Grimes was arrested on worthless check charges, he signed a claim of

rights form9 and served copies on the state attorney’s office and the JSO. Copies were

also placed in his court and jail files. Grimes argues that his execution of the claim

of rights form effectively invoked his Fifth Amendment and Sixth Amendment rights

for all subsequent purposes, including the charges at issue here. He argues, therefore,

that certain statements, including those he made to Pender while he was in jail and

those he made to the undercover agent in St. Augustine, should have been suppressed.

      1.     Sixth Amendment Right to Counsel.




      9
        The claim of rights form, in pertinent part, provided:
              1. The Defendant, together with the undersigned counsel, the Public
      Defender for the Fourth Judicial Circuit of Florida, hereby asserts his/her right not
      to make any statements, oral or written, regarding the facts or circumstances of the
      offense(s) with which he/she is charged, or regarding the facts or circumstances of
      any criminal offenses for which he/she is not charged (but is merely a witness or
      suspect), unless his/her attorney is present during any questioning and/or making of
      any such statements. The Defendant claims his/her right to counsel and the right to
      remain silent pursuant to Amendments 5 and 6 of the Constitution of the United
      States.
              2. Defendant further asserts that any future waiver to have counsel present
      or to remain silent must be in writing (with reference to this notice), and only after
      notice has been given to his/her attorney of the Defendant’s intention to waive this
      right and an opportunity provided for the Defendant and his/her attorney to discuss
      the waiver of these rights.

                                               10
      The Sixth Amendment guarantees the right to counsel at all “critical stages” of

a criminal prosecution. Michigan v. Jackson, 

, 629-30, 

,

1407-08 (1986). The Supreme Court has stated that the Sixth Amendment right to

counsel is offense specific. McNeil v. Wisconsin, 

, 175, 

,

2207 (1991). Grimes’ argument that the use of statements elicited by undercover

agents after his arrest on unrelated charges violated his Sixth Amendment right to

counsel therefore lacks merit. Even if Grimes’ invoked his Sixth Amendment right

to counsel, that right extends only to the worthless check charges and does not extend

beyond that charge to the § 844(i) investigation. No Sixth Amendment violation

occurred here.

      2.     Fifth Amendment Miranda Rights.

      In Miranda v. Arizona, 

, 

(1966), the Supreme Court

recognized that, in order to protect a suspect’s Fifth Amendment right not to

incriminate himself, the suspect must be warned prior to custodial interrogation that

he has the right to remain silent and the right to have an attorney present. In contrast

to the Sixth Amendment right to counsel, these Fifth Amendment rights are not

necessarily limited to the offense for which the suspect was arrested.       The Fifth

Amendment right to remain silent must be “scrupulously honored” once it has been

invoked. Michigan v. Mosley, 

, 104, 

, 326 (1975) (quoting


                                          11


, 86 S. Ct. at 1630). The Fifth Amendment right to counsel

is not offense specific. 

, 111 S. Ct. at 2208. The Fifth

Amendment could therefore provide protection for Grimes here.

      The Government argues that rights under the Fifth Amendment may not be

anticipatorily invoked and that Grimes’ execution of the claim of rights form was

insufficient to invoke his Miranda rights. In support of its position, the Government

cites McNeil, in which the Court noted that it has never held that Miranda rights can

be anticipatorily invoked. 

n.3. The

Court stated:

                If the Miranda right to counsel can be invoked at a
                preliminary hearing, it could be argued, there is no logical
                reason why it could not be invoked by a letter prior to
                arrest, or indeed even prior to identification as a suspect.
                Most rights must be asserted when the government seeks to
                take the action they protect against. The fact that we have
                allowed the Miranda right to counsel, once asserted, to be
                effective with respect to future custodial interrogation does
                not necessarily mean that we will allow it to be asserted
                initially outside the context of custodial interrogation, with
                similar future effect.

have held that Miranda rights may not be anticipatorily invoked.

See United States v. LaGrone, 

, 335-40 (7th Cir. 1994); Alston v. Redman,

, 1242-51 (3d Cir. 1994); United States v. Thompson, 

, 103-

04 (2d Cir. 1994); United States v. Wright, 

, 954-56 (9th Cir. 1992). The


                                             12
Seventh Circuit stated that “in order for a defendant to invoke his Miranda rights, the

authorities must be conducting interrogation, or interrogation must be imminent.”

. The court determined that such a formulation “advances the

twin goals of Miranda: providing an opportunity for the defendant to dissipate the

compulsion and allowing law enforcement the ability to conduct investigations.” 

We find the reasoning of our fellow circuits persuasive and hold that

Miranda rights may be invoked only during custodial interrogation or when

interrogation is imminent. We therefore hold that Grimes’ execution of the claim of

rights form was insufficient to invoke his Miranda rights.

      The questions that remain are whether the police should have given Grimes a

Miranda warning before government agents questioned him and, if so, whether

statements made in the absence of a warning should have been suppressed. The

Supreme Court in Miranda held that “the Fifth Amendment privilege against self-

incrimination prohibits admitting statements given by a suspect during ‘custodial

interrogation’ without a prior warning.” Illinois v. Perkins, 

, 296, 

, 2397 (1990) (citing Miranda). The admission of Grimes’ statements

would be offensive to Miranda only if, at the time the statements were made, he was

unwarned and was both (a) in custody and (b) being interrogated.

      a.     The Saint Augustine Statements.


                                          13
      The question of whether a person is in custody is viewed from the perspective

of a reasonable person in the position of the suspect. United States v. Adams, 

, 1575 (11th Cir. 1993). Grimes was not in custody when he talked to the

undercover agent in St. Augustine. Pender gave Grimes the option of going

somewhere other than to the hotel in St. Augustine. Grimes indicated that he wanted

to go to the hotel and to talk to Frank. While at the hotel, Grimes was not restrained

in any way. A reasonable person in the suspect’s position would not have felt that he

was in custody. Miranda warnings were not required before the meeting with Frank

in St. Augustine. The district court did not err by denying the motion to suppress

Grimes’ statements to Frank.

      b.     Statements to Pender.

      The Supreme Court has stated that “the term ‘interrogation’ under Miranda

refers not only to express questioning, but also to any words or actions on the part of

the police (other than those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating response from the

suspect.” Rhode Island v. Innis, 

, 301, 

, 1689-90 (1980)

(footnotes omitted).   Under that definition, the only statements Grimes made to

Pender that potentially implicate Miranda are the ones made after the police told

Pender to solicit incriminating statements from Grimes. The statements Grimes made


                                          14
prior to that time could not be the product of government compulsion because

“[a]bsent some officially coerced self-accusation, the Fifth Amendment privilege is

not violated by even the most damning admissions.” United States v. Washington,

, 187, 

, 1818 (1977).

      The Government argues that the coercion against which Miranda is designed

to protect was not present when Pender attempted to solicit incriminating statements

from Grimes. In Perkins, the Supreme Court considered whether a suspect’s rights

were violated when, without Miranda warnings, he was duped into making

incriminating statements to an undercover officer posing as a fellow inmate. The

Court concluded that Miranda warnings are not necessary in such a case because the

ingredients of a police-dominated atmosphere and compulsion are not present when

an incarcerated person speaks freely to a person that he believes is a fellow inmate.

110 S. Ct. at 2397. The Court stated that “[w]here the suspect does not

know that he is speaking to a government agent there is no reason to assume the

possibility that the suspect might feel coerced.” 

110 S. Ct. at 2398. The

Court further noted:

             It is the premise of Miranda that the danger of coercion
             results from the interaction of custody and official
             interrogation. We reject the argument that Miranda
             warnings are required whenever a suspect is in custody in



                                         15
             a technical sense and converses with someone who happens
             to be a government agent.

110 S. Ct. at 2397. In United States v. Stubbs, 

(11th Cir.

1991), we were confronted with a case where the defendant’s codefendant and

cellmate relayed the defendant’s inculpatory statements to the police. The defendant

challenged the admission of the statements and, relying on Perkins, we stated that

“Miranda and Fifth Amendment concerns are not implicated when a defendant

misplaces her trust in a cellmate who then relays the information — whether voluntary

or by prearrangement — to law enforcement officials.” 

We then

recognized that the rationale underlying Perkins is equally applicable in both the Fifth

Amendment right to remain silent and right to counsel contexts. 

that

“[f]or the same reasons that disposed of defendant’s Fifth Amendment compelled self-

incrimination claim, Perkins defeats defendant’s argument that the circumstances of

her conversation with her friend and fellow prisoner reflected compulsion and

amounted to ‘interrogation’ for purposes of her Fifth Amendment right to counsel

claim.” 

We also noted that the definition of interrogation was

“further refined in Perkins, where the Court made clear that ‘[c]onversations between

suspects and undercover agents do not implicate the concerns underlying Miranda.’”

496 U.S. at 

). We believe that Perkins



                                          16
and Stubbs control the outcome of this issue.          We hold that the use of the

conversations between Pender and Grimes do no violence to Grimes’ Fifth

Amendment rights or to the provisions underlying Miranda.

      3.     Fifth Amendment Due Process Rights.

      Grimes also argues that some of the incriminating statements he made were not

voluntary and that the circumstances that produced the statements involved a

violation of Grimes’ due process rights.         When a defendant challenges the

voluntariness of a confession, the government bears the burden of proving, by a

preponderance of the evidence, that the statement was voluntary. Colorado v.

Connelly, 

, 168, 

, 522 (1986); Lego v. Twomey, 

, 489, 

, 626-27 (1972). “A district court’s denial of a motion to

suppress presents a mixed question of law and fact.” United States v. Behety, 

, 510 (11th Cir. 1994). Construing all facts in the light most favorable to

the prevailing party, we review the district court’s findings of fact for clear error but

review the application of the law to the facts de novo. 

reviewed

Grimes’ alleged errors and the record concerning this issue. The district court

correctly concluded that the Government satisfied its burden of showing that the

statements were voluntary.

D.    Ex Post Facto Challenges


                                           17
      Grimes’ final two issues center on the application of statutes amended after

the commission of his crime. Grimes claims that the use of amended limitations

and sentencing statutes violates the Ex Post Facto Clause of the Constitution. We

hold that Grimes was properly tried and sentenced in this case.

       In Beazell v. Ohio, 

, 169-70, 

, 68 (1925), the Supreme

Court stated:

                It is settled, by decisions of this court so well known that
                their citation may be dispensed with, that any statute which
                punishes as a crime an act previously committed, which
                was innocent when done, which makes more burdensome
                the punishment for a crime after its commission, or which
                deprives one charged with crime of any defense available
                according to law at the time when the act was committed,
                is prohibited as ex post facto.

In Collins v. Youngblood, 

, 42, 

, 2719 (1990), the Supreme

Court noted that the Beazell ex post facto formulation “is faithful to our best

knowledge of the original understanding of the Ex Post Facto Clause.” Under the

Beazell definition, application of amended statutes to crimes committed before the

amendment is suspect and must be carefully scrutinized.

      1. Statute of Limitations.

      When Grimes committed this crime, the statute of limitations for a violation of

§ 844(i) was five years. After the crime was committed but before Grimes was



                                            18
indicted, Congress extended the statute of limitations to seven years. The offense in

this case was committed on March 19, 1990. Congress amended the statute effective

September 13, 1994,10 before the five-year statute for Grimes’ offense expired. The

grand jury indicted Grimes on April 5, 1995. The indictment came sixteen days after

the five-year statute of limitations expired but well within the seven-year statute.

Grimes argues that the application of the seven-year statute of limitations violates the

Ex Post Facto Clause.11

       The Government argues that there is no ex post facto violation here because the

statute of limitations was extended before the original five-year statute had expired.

Although we find no circuit cases that address this question under § 844(i), all of the

circuits that have addressed the issue under other statutes have uniformly held that

extending a limitations period before the prosecution is barred does not violate the Ex

Post Facto Clause. See United States v. Brechtel, 

, 1113 (5th Cir.

1993); United States v. Taliaferro, 

, 1402-03 (10th Cir. 1992); United


       10
            The five-year statute of limitations has since been reinstated.
       11
           Grimes also argues that the application of the seven-year statute of limitations is a bill of
attainder and violates the Due Process Clause of the Constitution. His due process argument
apparently centers around an allegation that the statute was changed at the request of the Attorney
General. He alleges that the Attorney General asked Congress to change the statute so that the
investigation of Grimes’ case could extend past the limitation set by law. This allegation has no
support and the argument has no merit. His argument that the application of the seven-year statute
of limitations to him amounts to a bill of attainder is likewise without merit. See Nixon v.
Administrator of Gen. Servs., 

, 468-71, 

, 2803-05 (1977).

                                                  19
States v. Knipp, 

, 843-44 (6th Cir. 1992); United States v. Madia, 

, 539-40 (8th Cir. 1992); United States ex rel Massarella v. Elrod, 

, 689 (7th Cir. 1982); United States v. Richardson, 

, 106 (3d Cir.

1975); Clements v. United States, 

, 399 (9th Cir. 1959); Falter v. United

States, 

, 425-26 (2d Cir. 1928). We now join our fellow circuits in

holding that a statute of limitations extended before the original limitations period has

expired does not violate the Ex Post Facto Clause.

      2. Sentencing Statute.

      On June 25, 1996, the district court sentenced Grimes to life in prison.

Grimes argues that sentence was improper because, under the version of the statute

in place at the time the crime was committed, only a jury could give a life sentence.

Grimes therefore contends that the district court exceeded its statutory authority in

sentencing him.

      Until 1994, § 844(i) set out the penalties for maliciously damaging or

destroying a building used in or affecting interstate commerce and stated that “if

death results . . . [the defendant] shall also be subject to imprisonment for any term

of years, or to the death penalty or to life imprisonment as provided in section 34

of this title.” 18 U.S.C. § 844(i) (1988). Section 34, in turn, provided that

“[w]hoever is convicted of any crime prohibited by this chapter, which has resulted


                                           20
in the death of any person, shall be subject also to the death penalty or to

imprisonment for life, if the jury shall in its discretion so direct.” 18 U.S.C. § 34

(1988). In 1994, both § 844(i) and § 34 were amended. The 1994 amendment to

§ 844(i) omitted the reference to § 34 and the section now states that “if death

results . . . [the defendant] shall also be subject to imprisonment for any term of

years, or to the death penalty or to life imprisonment.” 18 U.S.C. § 844(i) (1994).

Section 34 now states “[w]hoever is convicted of any crime prohibited by this

chapter, which has resulted in the death of any person, shall be subject also to the

death penalty or to imprisonment for life.” 18 U.S.C. § 34 (1994). Relying on

cases decided under the pre-1994 version of the statutes, Grimes argues that only

the jury could impose a life sentence and that the trial judge exceeded his statutory

authority when he sentenced Grimes to life in prison.

      The general rule is that a defendant should be sentenced under the law in

effect at the time of sentencing. See Blaik v. United States, 

, 1294

(11th Cir. 1997) (citing United States v. Guardino, 

, 687 (6th Cir.

1992)); see also Hughey v. United States, 

, 413 n.1, 

,

1981 n.1 (1990) (agreeing with the lower court’s implicit conclusion that the law

in effect at the time of sentencing controls), superseded by statute on other grounds

as noted in United States v. Arnold, 

, 1237 (5th Cir. 1991). The rule


                                         21
does not apply, however, if application of the law in effect at the time of sentencing

would violate the ex post facto provision of the Constitution. See United States v.

Sloan, 

, 1381 n.4 (11th Cir. 1996) (noting that the version of the

Sentencing Guidelines in effect at the time of sentencing may not be applied if such

an application would violate the Ex Post Facto Clause of the Constitution); Miller

v. Florida, 

, 

(1987) (reversing and remanding for

resentencing under the provisions in effect at the time of the offense because

application of the provisions in effect at the time of sentencing violated the Ex Post

Facto Clause of the Constitution). The version of § 844(i) in effect at the time of

sentencing did not refer to § 34 and contained no restriction that a life sentence

could be imposed only by a jury. Under the general rule, the district court properly

sentenced Grimes under the version of the statute in effect at the time of Grimes’

sentencing unless application of that version violated the Ex Post Facto Clause of

the Constitution.12


       12
           It is true, as Grimes contends, that circuit courts considering the application of the pre-
1994 versions of § 884(i) and § 34 have consistently concluded that only a jury had authority to
impose a life sentence and that the judge could only impose a sentence for a term of years less than
life. See United States v. Tocco, 

(2d Cir. 1997), pet. for cert. filed, No. 97-1596 (Mar.
27, 1998); United States v. Gullett, 

(4th Cir.), cert. denied, 

(1996);
United States v. Prevatte, 

(7th Cir. 1994); United States v. Williams, 

(5th
Cir. 1985); United States v. Hansen, 

(8th Cir. 1985). Those courts, with the possible
exception of the Tocco Court, were not faced with the question presented in this case: whether the
application of the amended version of the statutes would violate the Ex Post Facto Clause of the
Constitution. The Second Circuit in Tocco stated without discussion or analysis that “the Ex Post

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        The ex post facto concern implicated here is the requirement that a statute not

make the punishment for a crime committed before its enactment more onerous.

Grimes argues that allowing a judge to impose a sentence that could formerly only be

imposed by the jury runs afoul of that requirement. The Government responds that

the change in the statute did not affect the substantive nature of crime and was only

a change in procedure. This argument is based on the Supreme Court’s statement that

“[s]everal of our cases have described as ‘procedural’ those changes which, even

though they work to the disadvantage of the accused, do not violate the Ex Post Facto

Clause.” 

, 110 S. Ct. at 2720 (citations omitted). The Court

stated further that “[w]hile these cases do not explicitly define what they mean by the

word ‘procedural,’ it is logical to think that the term refers to changes in the

procedures by which a criminal case is adjudicated, as opposed to changes in the

substantive law of crimes.” 

contends that the amendment in this

case, which removed the restriction that only a jury could impose a life sentence, is

merely procedural and therefore does not implicate the Ex Post Facto Clause.




Facto Clause precludes application of the 1994 amendment since [the defendant] committed the
arson in 1992 and, under the Ex Post Facto Clause, a retroactive change in the definition of a crime
or a retroactive increase in punishment for a criminal act is forbidden.” 

(citations omitted). It is unclear whether the issue was presented by the case or whether these
statements are merely dicta; regardless, as will be seen below, we disagree with the conclusion that
application of the 1994 amendments violates the Ex Post Facto Clause.

                                                23
       The amendment at issue here is not very far removed from the amendment at

issue in Dobbert v. Florida, 

, 

(1977). In Dobbert, the

Supreme Court considered an ex post facto challenge to the application of a statute

which changed “the function of the judge and jury in the imposition of death sentences

in Florida between the time [Dobbert] committed the acts charged and the time he was

tried for them.” 

97 S. Ct. at 2295. At the time Dobbert committed the

crime, the Florida statute provided that the penalty for his actions would be death

“unless the verdict included a recommendation of mercy by a majority of the jury.”

97 S. Ct. at 2296. In the intervening time between the commission of the

crime and Dobbert’s trial and sentencing, the Florida legislature enacted a new death

penalty statute which provides that, after a conviction, a separate sentencing hearing

is held before the trial judge and the trial jury. 

97 S. Ct. at 2297. The jury,

considering certain aggravating and mitigating factors, renders an advisory decision.

97 S. Ct. at 2297. The decision is not binding on the trial judge and the

trial judge weighs the same aggravating and mitigating circumstances. 

judge then sentences the defendant but must set forth written findings of fact

concerning the aggravating and mitigating circumstances if the death sentence is

imposed. 

case, the advisory jury recommended life imprisonment

but the trial judge rejected that recommendation and sentenced Dobbert to death.


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Dobbert claimed that the application of the amended Florida death penalty statute was

ex post facto as applied in his case. The Supreme Court determined that “[t]he new

statute simply altered the methods employed in determining whether the death penalty

was to be imposed; there was no change in the quantum of punishment attached to the

crime.” 

97 S. Ct. at 2298. The Court concluded that “[e]ven though it

may work to the disadvantage of a defendant, a procedural change is not ex post

facto.” 

97 S. Ct. at 2298.

      We believe that the Supreme Court’s decision in Dobbert, that a procedural

change in the judge’s and the jury’s role in the imposition of punishment does not

violate the Ex Post Facto Clause, is equally applicable in this situation. As in

Dobbert, the punishment attached to this crime is not altered by the amendment to the

statute; the only change is a procedural one that allocates responsibility between two

different decision makers. We hold that the application of the post-1994 version of

§ 844(i) does not violate the Ex Post Facto Clause of the Constitution and that the trial

judge did not exceed his statutory authority by imposing a life sentence.

      Finally, Grimes argues that the application of the amended version of § 844(i)

is ex post facto because the application of the Sentencing Guidelines eliminated the

discretion provided to the decision maker under the pre-1994 statutes. Grimes’

guideline range was life in prison. He therefore argues that the trial judge did not have


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the discretion to give him less than a life sentence whereas a jury, under the prior

versions of § 844(i) and § 34, was explicitly given discretion. Grimes contends that

the absence of that discretion in his case causes the application of the post-1994

§ 844(i) to be a violation of the Ex Post Facto Clause. Grimes did not present this

argument to the district court. We generally will not consider an argument made for

the first time on appeal and will review it only “under the plain error doctrine to avoid

manifest injustice.” United States v. Stevenson, 

, 1294 (11th Cir. 1995)

(citations and internal quotations omitted). “For the Court to correct plain error: (1)

there must be error; (2) the error must be plain; and (3) the error must affect

substantial rights.” 

Even if we assume that the first and third

elements could be met in this case, we hold that the alleged error is not plain and does

not meet the second element.

                                 III. CONCLUSION

      For the reasons stated above, we affirm Grimes’ conviction and sentence,

holding that: section 844(i) is constitutional both facially and as applied in this case;

Grimes was properly denied benefits afforded to a capital defendant; the district court

did not err by denying Grimes’ motion to suppress; the application of the amended

statute of limitations did not violate the Ex Post Facto Clause of the Constitution; and




                                           26
Grimes was properly sentenced under the statutes in effect at the time of his

sentencing.

      AFFIRMED.




HOEVELER, Senior District Judge, specially concurring:

      I concur with the well constructed opinion of Judge Black but wish only to note

my concern regarding the issue of the effect of the application of the guidelines in

eliminating the jury’s discretion in imposing a life sentence – the final issue addressed

in the opinion. As Judge Black correctly notes, there are compelling reasons to

restrain this court’s consideration of the issue; nevertheless, I write to indicate my

initial impression that this may be a colorable claim – one to be presented in another,

more appropriate proceeding.


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