Filed: Apr. 12, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4336 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC GILES, Defendant - Appellant. No. 12-4403 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KYLE MARK CORSI, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:09-cr-00203-RJC-DCK-1; 3:09-cr- 00203-RJC-DCK-5) Argued: March 21, 2013 Decided:
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4336 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC GILES, Defendant - Appellant. No. 12-4403 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KYLE MARK CORSI, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:09-cr-00203-RJC-DCK-1; 3:09-cr- 00203-RJC-DCK-5) Argued: March 21, 2013 Decided: A..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4336
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC GILES,
Defendant - Appellant.
No. 12-4403
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KYLE MARK CORSI,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00203-RJC-DCK-1; 3:09-cr-
00203-RJC-DCK-5)
Argued: March 21, 2013 Decided: April 12, 2013
Before MOTZ and DUNCAN, Circuit Judges, and Robert E. PAYNE,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Carol Ann Bauer, Morganton, North Carolina; William
David Auman, AUMAN LAW OFFICES, Asheville, North Carolina, for
Appellants. William Michael Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF:
Anne M. Tompkins, United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Eric Giles and Kyle Corsi appeal from conspiracy
convictions involving drug trafficking, money laundering, and
money structuring. Finding no error, we affirm.
I.
A.
Giles and Corsi were members of a marijuana distribution
ring operating in Chapel Hill and Charlotte, North Carolina. As
the ring-leader, Giles would travel to California to procure
“high-grade” marijuana. Giles would then send packages
containing several pounds of marijuana through the mail from a
fictitious business -- Norcal Athletics -- to Corsi and other
distributors back in North Carolina. When a package arrived,
Giles would send a text message that “the eagle has landed” to
notify a given distributor that the package was ready for pickup
and distribution. To finance the purchases, the distributors
made large cash deposits into bank accounts that Giles managed.
However, pursuant to Giles’ instructions, the distributors kept
their individual deposits under $10,000 to avoid federal
reporting requirements. Over its three years of operation, the
distribution ring sold over one hundred kilograms of marijuana
and made deposits totaling several hundred thousands of dollars.
3
On October 26, 2009, after over a year tracking the
operation and intercepting packages containing marijuana en
route from “Norcal Athletics” to North Carolina, federal agents
arrested Giles in Charlotte. With Giles’ consent, agents
searched his vehicle and confiscated his cellular phone and
approximately one pound of marijuana. At that time, Giles
identified his source of marijuana in California, but stated
that any packages sent by Norcal Athletics contained only
athletic gear, and denied knowledge of the contents of the
package of marijuana seized from his car. That same day, agents
searched Giles’ residence, and discovered receipts and other
documentation linking him to shipments from California to North
Carolina.
On the evening of Giles’ arrest, six federal agents and two
uniformed police officers went to Corsi’s residence to attempt
to speak with him about the marijuana distribution ring. After
Agent Christopher Morgan and a uniformed officer knocked on the
door to Corsi’s residence, Corsi stepped out onto his porch.
His roommate, Angelica Grist, followed him out shortly
thereafter. When Grist exited the residence, Agent Morgan
detected the smell of burnt marijuana coming from inside. Agent
Morgan informed Corsi that the officers had information that
there might be narcotics in the residence, and hoped to talk
4
with him and obtain his consent for a search. Corsi became
agitated and denied the officers consent to enter the house.
Concluding that Corsi would not talk or provide consent for
a search, Agent Morgan began speaking to Grist. Over Corsi’s
objections, Grist consented to a search of just her room. Grist
led Agent Morgan and another officer to her room on the second
floor. During the search, Agent Thomas Nelson and two other
officers restricted Corsi’s movement to a small area just inside
the front door. After several minutes, Corsi shouted upstairs
that he knew why the officers were there and that he was ready
to talk and “be a man about it.”
Corsi led Agents Morgan and Nelson to his kitchen. Once
the interview began, Corsi, now calm, admitted that he had been
receiving high-grade marijuana from California through the mail.
He explained that his supplier would send text messages
indicating when the packages had arrived in North Carolina and
were ready for pickup. Corsi also explained that other members
of the ring would deposit money into the drug supplier’s bank
account to prepay for the marijuana, but stated that he had
never done so. However, after Agent Morgan showed Corsi bank
surveillance photographs of him and an unidentified woman (who
Corsi then identified as his girlfriend) making cash deposits,
Corsi admitted to making several deposits into the drug
supplier’s account. After approximately thirty minutes, the
5
agents concluded the interview and left the residence without
arresting Corsi.
A week later, on November 3, several agents and officers
returned and arrested Corsi at his residence. Upon his arrest,
an agent read Corsi his Miranda rights. Corsi indicated that he
understood his rights, and an officer transported Corsi to the
courthouse for his initial appearance. Before taking Corsi into
the courthouse, the officer took Corsi to meet Agent Morgan in
the courthouse parking lot. Agent Morgan ascertained from the
officer that Corsi had been informed of his Miranda rights, and
then asked Corsi several clarifying questions regarding his
October 26 statements. Corsi confirmed several statements from
his earlier interview, including that packages he received from
Norcal Athletics had contained marijuana. Agent Morgan
terminated the interview when Corsi indicated he needed to use
the restroom. At no point during the interview did Corsi invoke
his right to remain silent or his right to an attorney.
B.
On June 16, 2010, a grand jury returned a third superseding
indictment charging Giles and Corsi with conspiracy to possess
with intent to distribute marijuana, conspiracy to commit money
laundering, and conspiracy to structure a currency transaction
for the purpose of evading reporting requirements. The grand
6
jury also charged Giles with an additional count of conspiracy
with intent to distribute marijuana, and four firearms offenses.
Prior to trial, Corsi moved to suppress the statements he
had made to Agents Morgan and Nelson at his residence on October
26, and the statements he had made to Agent Morgan following his
arrest on November 3. At an evidentiary hearing on the motion,
Corsi orally moved for a continuance to procure the testimony of
Grist, his roommate who was present on October 26. Corsi’s
counsel stated that despite her efforts, and Grist’s promises to
meet her, she had been unable to serve Grist with a subpoena to
testify. The court indicated its intent to deny the motion,
concluding that Corsi had had “plenty of time” to subpoena
Grist; however, the court left “the decision of the Court open
until the end of jury selection,” providing Corsi three
additional days to locate Grist. Grist never appeared to
testify.
During the suppression hearing, Agents Morgan and Nelson
and another officer testified as to the events leading up to and
including Corsi’s October 26 interview. They testified that
they neither arrested Corsi nor told him he was under arrest;
that they neither drew nor threatened to draw a weapon on Corsi;
and that they only restricted Corsi’s movement to ensure that he
did not destroy evidence during their search of Grist’s room.
The officers also testified that Corsi volunteered for the
7
interview during the search of Grist’s room; that Corsi chose
the kitchen as a location for the interview; that they
instructed Corsi that he was not under arrest and could refuse
to answer questions at any time; and that Corsi, though agitated
earlier, remained calm throughout the thirty-minute interview.
Corsi testified that the officers had forcefully pulled him
down from the stairs outside of his residence and refused to
allow him to return inside; that he had requested an attorney
“four or five” times but was told he would not be permitted to
contact his lawyer; and that he several times asked the officers
to leave his residence. Corsi stated that the officers
intimidated Grist by threatening her with charges for anything
found in the house. Corsi further testified that when Grist led
the officers inside to her room, he tried to follow, but
officers flanked him with their hands going toward their weapons
and again denied his request for an attorney. Corsi maintained
that, after he agreed to speak with the officers, he again
requested, and was denied, an attorney, and that while at the
kitchen table, one of the agents stated that if he did not
answer their questions, both he and his girlfriend would be
charged based on the bank surveillance photographs. Corsi
concluded that during the interview he felt constrained “[t]he
whole time” and “was not free to leave.”
8
Regarding his post-arrest November 3 interview, Corsi
admitted that the arresting agent had read him his Miranda
rights. Corsi testified that “three or four” times officers
denied his request for counsel, but could not recall whether he
ever requested counsel in Agent Morgan’s presence or during the
interview.
After considering all of the testimony, the court credited
the officers’ and found Corsi’s not credible. On that basis,
the court held that Corsi was not in custody when he made
statements during the October 26 interview, and that Corsi
voluntarily waived his Miranda rights during his November 3
post-arrest interview. As such, the court denied Corsi’s motion
to suppress the Government’s planned testimony from Agents
Morgan and Nelson as to Corsi’s statements on October 26 and
November 3.
Over Corsi’s motion to sever, Giles and Corsi were then
tried together before a jury. At trial, both Giles and Corsi
objected to the Government’s introduction of text messages
extracted from Giles’ cellular phone seized during his arrest.
The court overruled the defendants’ general objection, but
ultimately admitted only those messages that the Government
could tie to co-conspirators through testimony. In addition to
testimony of investigating officers as to the text messages, the
packages confiscated, the money laundering and reporting evasion
9
scheme, and Corsi’s October 26 and November 3 statements, the
Government also produced the testimony of several customers and
unindicted co-conspirators of the distribution ring.
After the close of evidence, both Giles and Corsi moved for
acquittal. The district court denied the motions, and the jury
returned a unanimous verdict, acquitting Giles of one firearms
charge, and convicting both defendants of the remaining charges
against them.
The court sentenced Corsi to the statutory minimum 120-
months’ imprisonment; it sentenced Giles to 196-months’
imprisonment. These consolidated appeals followed.
II.
Giles and Corsi present one joint, and several individual,
challenges to their convictions. We consider their joint
challenge first, and then the individual challenges.
A.
Both Giles and Corsi appeal the district court’s admission
of text messages obtained from Giles’ cellular phone. We review
the district court’s decision to admit the text messages for
abuse of discretion. United States v. Ayala, 601 F.3d 256, 267
(4th Cir. 2010).
Giles and Corsi argue that the court erred by admitting the
messages as party admissions under Fed. R. Evid. 801(d)(2)(A),
10
when they should have been considered as statements between co-
conspirators under Fed. R. Evid. 801(d)(2)(E). Contrary to
their argument, however, the district court in fact did admit
the text messages as statements between co-conspirators. See
Joint Appendix 852-53, 909. Further, considering the
defendants’ failure on appeal to demonstrate that any of the
admitted text messages were not sent “in the course and in
furtherance of the conspiracy,” Bourjaily v. United States, 483
U.S. 171, 183 (1987), we cannot say that the district court
abused its discretion by admitting the text messages. 1
B.
Corsi raises five additional issues on appeal.
First, he appeals the denial of his motion to continue his
suppression hearing so that his counsel could subpoena Grist.
We review a denial of a motion for continuance for abuse of
discretion, and reverse only if any such abuse specifically
prejudiced the defendant. United States v. Hedgepeth, 418 F.3d
411, 419 (4th Cir. 2005). A party seeking a continuance to
1
At oral argument, Giles’ counsel raised the unbriefed
argument that the district court used the wrong evidentiary
standard when determining whether a conspiracy existed at the
time the text messages at issue were sent. Even if Giles had
preserved this argument and the district court had failed to
apply the preponderance of the evidence standard for
admissibility, see Bourjaily, 483 U.S. at 175, Giles fails to
demonstrate that the record does not contain sufficient evidence
of a conspiracy under that standard.
11
secure the attendance of a witness must demonstrate (1) who the
witness is, (2) what his or her testimony will be, (3) that the
testimony will be relevant to the case and competent, (4) “that
the witness can probably be obtained if the continuance is
granted,” and (5) that counsel has exercised due diligence to
obtain the witness’s attendance for the trial as set. United
States v. Clinger, 681 F.2d 221, 223 (4th Cir. 1982). In this
case, Grist’s testimony might well have been relevant. However,
Corsi failed to demonstrate the character and content of Grist’s
testimony, or that her presence would probably have been
obtained were the continuance granted. For these reasons, the
court did not abuse its discretion in denying Corsi’s motion to
continue.
Corsi next challenges the district court’s denial of his
motion to suppress the testimony of Agents Morgan and Nelson as
to his October 26 and November 3 statements. “We review the
factual findings underlying a motion to suppress for clear error
and the district court’s legal determinations de novo.” United
States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012). “Where, as
here, the challenged ruling entails the denial of a criminal
defendant’s motion to suppress, we view the evidence in the
light most favorable to the government,” and will not set aside
an otherwise valid conviction if we “may confidently say, on the
whole record, that [an error] was harmless beyond a reasonable
12
doubt.” United States v. Holness, 706 F.3d 579, 588 (4th Cir.
2013) (internal quotation marks omitted).
Corsi maintains that testimony as to his October 26
statements was inadmissible because the interview was custodial,
and he was not informed of and did not waive his Miranda rights.
An individual is “in custody” -- and subject to Miranda
safeguards -- despite the lack of formal arrest when, under the
totality of the circumstances, his or her “freedom of action is
curtailed to a degree associated with formal arrest.” Berkemer
v. McCarty, 468 U.S. 420, 440, (1984) (internal quotation marks
omitted). Thus, “[t]he operative question is whether, viewed
objectively, ‘a reasonable man in [Corsi’s] position would have
understood his situation’ to be one of custody.” United States
v. Hargrove,
625 F.3d 170, 178 (4th Cir. 2010) (quoting
Berkemer, 486 U.S. at 442).
The district court found the agents’ testimony as to the
October 26 interview credible, and Corsi’s contrary testimony
not credible. We particularly defer to the district court’s
credibility determinations and construe the evidence presented
in the light most favorable to the government. United States v.
Mubdi, 691 F.3d 334, 339 (4th Cir. 2012). Given this standard,
and considering the totality of the circumstances, we cannot
hold the court erred in finding that Corsi was not in custody
during the October 26 interview. Undoubtedly, there was some
13
coercive element to the interview, but “[a]ny interview of one
suspected of a crime by a police officer will have coercive
aspects to it, simply by virtue of the fact that the police
officer is part of a law enforcement system which may ultimately
cause the suspect to be charged with a crime.” Oregon v.
Mathiason, 429 U.S. 492, 495 (1977). This interview, similar in
its facts to those in Hargrove, 625 F.3d at 178-80, and United
States v. Parker,
262 F.3d 415, 419 (4th Cir. 2001), is
emblematic of the type of interview that, although containing
coercive aspects, does not constitute a custodial interrogation
requiring Fifth Amendment protections. 2
Similarly, the district court did not err in admitting
testimony as to Corsi’s November 3 statements. Because Corsi
admitted that the arresting officers adequately informed him of
his Miranda rights, the only issue before the court was whether
Corsi waived those rights. See United States v. Cardwell, 433
F.3d 378, 389 (4th Cir. 2005). Although waiver must be “knowing
2
Further, Corsi’s statements were neither coerced nor
involuntary. Although Corsi maintains that he only agreed to
the interview to protect Grist and his girlfriend, the record
provides no indication that the agents made explicit threats to
charge or arrest either party. Moreover, “[t]he mere existence
of threats, violence, implied promises, improper influence, or
other coercive police activity . . . does not automatically
render a confession involuntary.” United States v. Braxton, 112
F.3d 777, 780 (4th Cir. 1997). In this case, the Government
proved by a preponderance of the evidence that Corsi’s
statements were voluntary.
14
and voluntary,” it need not be express “and may be implied from
the defendant’s actions and words.” Id. For “[w]hile law
enforcement officers must immediately stop custodial
interrogation when the defendant asserts his Miranda rights,
they are free to engage in custodial interrogation when they
have given Miranda warnings and the defendant does not
specifically invoke those rights.” Id. (citations omitted).
Here, the district court did not clearly err in finding not
credible Corsi’s testimony that he invoked, and was denied, his
right to counsel several times after his arrest. Further, that
Corsi answered questions during the interview is sufficient to
constitute an implied waiver of his Miranda rights. Id. at 390;
United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 1996).
Corsi also challenges the district court’s denial of his
motion to sever his case. We review a district court’s denial
of a motion for severance for abuse of discretion. United
States v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010). As a
general rule, particularly strong in conspiracy cases, “we
adhere to the principle that defendants indicted together should
be tried together, and a defendant must show that he was
prejudiced by the denial of a severance motion in order to
establish that the district court abused its broad discretion in
that regard.” Id.; see United States v. Brooks,
957 F.2d 1138,
1145 (4th Cir. 1992).
15
Corsi contends that being tried with the more-cuplable
Giles -- the kingpin of the marijuana distribution operation who
also faced several firearms charges -- “compromised” his rights
to a fair trial. However, “[a] defendant is not entitled to
severance merely because separate trials would more likely
result in acquittal, or because the evidence against one
defendant is not as strong as that against the other.” United
States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999) (citation
omitted). Moreover, Corsi does not allege that the court
improperly instructed the jury on considering him separately
from Giles, and points to no evidence that the jury had
difficulty distinguishing them. See United States v.
Strickland,
245 F.3d 368, 384 (4th Cir. 2001). In short, Corsi
fails to demonstrate any prejudice sufficient to show that the
district court abused its discretion in denying severance.
Corsi additionally appeals the court’s denial of his motion
for acquittal. We review a denial of a motion for acquittal de
novo, affirming only if “there is substantial evidence in the
record, when viewed in the light most favorable to the
government, to support the conviction.” United States v. Green,
599 F.3d 360, 367 (4th Cir. 2010).
Corsi argues that, considering his “limited” interaction
with the conspirators in the marijuana distribution scheme, the
Government failed to put forth substantial evidence to prove
16
each element of his conspiracy charges. We cannot agree. A
defendant’s connection to a conspiracy need only be “slight” to
support his conviction by substantial evidence. United States
v. Burgos, 94 F.3d 849, 861-62 (4th Cir. 1996) (en banc). In
this case, the Government’s evidence -- including the text
messages between Corsi and Giles, along with Corsi’s own
confessions -- suffices to support Corsi’s conviction for the
drug trafficking, money laundering, and money structuring
conspiracies. Accordingly, we affirm the district court’s
denial of Corsi’s motion for acquittal.
Lastly, Corsi challenges the court’s failure to hold sua
sponte a forfeiture hearing under Fed. R. Crim. P.
32.2(b)(1)(B). Corsi admits that the court has no obligation to
hold a forfeiture hearing in the absence of a request by a
party, but argues that the court gave him no opportunity to
request a hearing. However, the record belies Corsi’s
assertion, as both he and his counsel were provided an
opportunity to object and speak at length regarding forfeiture
during sentencing. Corsi was on notice of all property subject
to forfeiture as set forth in the indictment, and did not object
at any point nor request a hearing. Accordingly, we find no
basis to vacate the district court’s forfeiture order.
17
C.
Giles maintains that the district court erred by failing to
continue sua sponte his sentencing hearing after he informed the
court he had not read his PSR. 3 We review the failure to
continue sua sponte a sentencing hearing for abuse of
discretion. See Hedgepeth, 418 F.3d at 419. A court abuses its
discretion when its failure to continue amounts to an “an
unreasoning and arbitrary insistence upon expeditiousness in the
face of a justifiable request for delay.” Morris v. Slappy, 461
U.S. 1, 11-12 (1983) (internal quotation marks omitted). We
will reverse for abuse of discretion only if that abuse
specifically prejudiced the defendant’s case. Hedgepeth, 418
F.3d at 419.
The district court did not abuse its discretion in this
case. Although Giles claimed he did not read his PSR, his
counsel stated that Giles read the PSR through the glass at the
jail, and had discussed the PSR with counsel prior to the
hearing. Further, Giles’ continued references to, and
challenges of, his PSR during sentencing belie his claim that he
had not yet read his PSR. In short, Giles failed to proffer any
3
Although Giles also argued in his brief that the court
improperly admitted testimony as to Corsi’s redacted
confessions, Giles conceded at argument that the testimony,
admitted only against Corsi, did not violate Giles’
Confrontation Clause rights under Bruton v. United States, 391
U.S. 123 (1968), and its progeny.
18
“justifiable request for delay” that the district court was not
within its broad discretion to deny.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
19
