USA v. CARL EVAN SWAIN

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12247
Non-Argument Calendar
________________________
D.C. Docket No. 4:14-cr-00005-WTM-GRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARL EVAN SWAIN,
a.k.a. Cowboy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(March 9, 2016)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 15-12247 Date Filed: 03/09/2016 Page: 1 of 8

-- 1 of 8 --

2
Carl Swain appeals his life sentence, imposed for murder, conspiracy to
murder, and conspiracy to commit murder for hire, under 18 U.S.C. §§ 1111(a),
1117, & 1958(a), respectively. On appeal, he argues that he was not properly
advised on his right to counsel at his interrogation because, although his initial
Miranda1 warnings were adequate, the FBI agent’s response to a question
regarding how Swain could obtain an attorney quickly destroyed Swain’s
understanding of his rights. After review of the record on appeal and consideration
of the parties’ briefs, we find no reversible error. Swain was properly advised of
his right to counsel, and the district court did not err in denying Swain’s motion to
suppress statements from the interrogation. Therefore, we affirm.
I.
In a superseding indictment, Swain was indicted for conspiracy to commit
murder for hire, in violation of 18 U.S.C. § 1958(a) (Count One); conspiracy to
commit murder, in violation of 18 U.S.C. § 1117 (Count Two); and premeditated
murder in violation of 18 U.S.C. §§ 7(3) and 1111 (Count Three). The indictment
alleged that Swain planned to kill John Eubank, his brother-in-law, with Swain’s
sister, Lillie Eubank, and that Swain actually killed John Eubank by luring him into
the woods and crushing his skull in with a wooden bat.
1 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966) (prohibiting the
government from using “statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards
effective to secure the privilege against self-incrimination”).
Case: 15-12247 Date Filed: 03/09/2016 Page: 2 of 8

-- 2 of 8 --

3
Before trial, Swain filed a motion in limine to exclude a statement he made
to the Federal Bureau of Investigation (FBI) on December 6, 2013, on the grounds
that his statement was not voluntary because his Miranda waiver was inadequate.
Specifically, Swain argued that, while he was in custody, an FBI agent had
improperly answered his question regarding how he would obtain an attorney by
indicating that he would not receive a lawyer until he was turned over to the
Marshal’s service. In support of his motion, Swain attached the transcript from his
interview with FBI agents Wayne Gerhardt and Blake Childress. In relevant part,
Gerhardt stated:
Before we can ask you any questions, you must understand your
rights. You have the right to remain silent. Anything you say can be
used against you in court. You have the right to talk to a lawyer for
advice before we ask you any questions. You have the right to have a
lawyer with you during questioning. If you cannot afford a lawyer,
one will be appointed to you before any questioning if you wish. If
you decide to answer questions now without a lawyer, you have the
right to stop answering at any time.
Swain told Gerhardt that he understood. However, Swain asked: “[t]he thing
is if I needed a lawyer, how am I going to be able to get one appointed to me that
quickly?” Gerhardt replied:
Well the court could appoint one to you, um, honestly at that point we
take you over to the marshal service and, and, and at that point you
would be appointed counsel. The question is whether or not we can
sit down with you here again. It would probably be back, once you
got back to Georgia before, before someone can talk to you.
Case: 15-12247 Date Filed: 03/09/2016 Page: 3 of 8

-- 3 of 8 --

4
Swain then asked how he would get back to Alabama once the case was
over.2 He and Gerhardt briefly discussed how he arrived in Alabama originally,
and Gerhardt stated he did not know what was going to happen with Swain’s case,
including how long the process was going to be or when the Marshals would be
moving Swain to Georgia. Swain told Gerhardt “Okay,” and Gerhardt asked for
clarification, to which Swain said, “Whatever, just go on with whatever.” Gerhardt
asked if Swain wanted “to go on and waive your rights and talk to us at this time,”
to which Swain replied, “I will talk to you as much as I can.”
Gerhardt then had Swain sign a written consent form. In relevant part, the
form stated that Swain had the right to remain silent, that anything he said could be
used against him in court, that he had a right to an attorney before being asked any
questions, he had a right to an attorney during questioning, that an attorney would
be appointed for him if he could not afford one, and that he had the right to stop
answering questions at any time. Additionally, the form had a statement certifying
that Swain had read the form. The agents then interviewed Swain, adducing
several key facts about the case.3
2 Since the crime occurred in Georgia, the agents and Swain discussed transfer there for the
proceedings during the interview, which took place in Alabama (where Swain resided and was
arrested).
3 Swain made several potentially incriminating statements, including, inter alia, that he was in
Georgia at or near the time of the death of his brother-in-law, John; that he walked with John
along the trail where John was later found; that he knew his sister Lillie and John were going
through a divorce and Lillie had told him that she was scared that she would not be able to
support herself; and that Lillie would receive a $500,000 life insurance policy if John died.
Case: 15-12247 Date Filed: 03/09/2016 Page: 4 of 8

-- 4 of 8 --

5
The magistrate judge reviewed Swain’s motion and issued a Report and
Recommendation (R&R). The magistrate judge determined that Gerhardt had
answered Swain’s questions truthfully and accurately; accordingly, the magistrate
judge concluded that Swain was not deceived and Gerhardt’s statements were not
even in the realm of a permissible police ploy. Swain objected to the R&R and
reasserted that Gerhardt’s response to his question tainted his Miranda warning.
However, the district court adopted the R&R and denied Swain’s motion to
suppress, finding Gerhardt’s response accurately answered Swain’s question and
outlined the relevant procedures.
Subsequently, at trial, the government played portions of the interview to the
jury. The jury found Swain guilty of all three counts charged in the superseding
indictment, and he was sentenced to life imprisonment for each count, to be served
concurrently. This appeal ensued.
II.
A district court’s ruling on a motion to suppress “presents a mixed question
of law and fact.” United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995). We
review a district court’s factual findings for clear error, whereas our review of the
court’s application of the law to the facts is de novo. Id. Further, we review de
novo when deciding the ultimate issue of the voluntariness of a defendant’s
confession. Id.
Case: 15-12247 Date Filed: 03/09/2016 Page: 5 of 8

-- 5 of 8 --

6
III.
Swain argues on appeal that Gerhardt’s above-mentioned statements to
Swain concerning his right to an appointed counsel led him to form the reasonable
impression that he did not have a then-present right to counsel and would only be
afforded that right at a future point. See California v. Prysock, 453 U.S. 355, 360,
101 S. Ct. 2806, 2810 (1981) (suggesting that counsel will be appointed at a future
time after the interrogation is not enough to provide an appropriate Miranda
warning). Accordingly, Swain avers he was not properly advised of his
constitutional right to counsel as required by Miranda, and, since there exists a
reasonable possibility that the introduction of his statements obtained in violation
of Miranda contributed to his convictions, reversal is required.
An accused has effectively waived his Miranda rights if the totality of the
circumstances reveal he: (1) voluntarily relinquished them as “the product of a free
and deliberate choice rather than intimidation, coercion, or deception”; and (2)
made his decision “with a full awareness of both the nature of the right[s] being
abandoned and the consequences of the decision to abandon [them].” Barbour, 70
F.3d at 585 (citing Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141
(1986)). The Supreme Court has opined that “Miranda does not require that
attorneys be producible on call,” so long as a suspect knows that he has the right to
an attorney before and during questioning. Duckworth v. Eagan, 492 U.S. 195,
Case: 15-12247 Date Filed: 03/09/2016 Page: 6 of 8

-- 6 of 8 --

7
204, 109 S. Ct. 2875, 2881 (1989). As such, if appointed counsel cannot be
immediately provided, “Miranda requires only that the police not question a
suspect unless he waives his right to counsel.” Id.
Here, FBI agents read Swain his Miranda rights, Swain asked a few
procedural questions which the agents answered, and Swain then decided to
cooperate. The FBI agents clarified that Swain was waiving his rights, which
Swain affirmed, and Swain signed a written waiver that accurately outlined his
Miranda rights. See North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755,
1757 (1979) (noting that, although “not inevitably either necessary or sufficient to
establish waiver,” a written waiver “is usually strong proof of the [waiver’s]
validity”). Given these factors, the totality of the circumstances surrounding
Swain’s waiver shows that his choice was not coerced, and that he understood that
he was waiving his rights and what those rights were. See Barbour, 70 F.3d at
585; see also Moran, 475 U.S. at 421, 106 S. Ct. at 1141.
Further, in considering Swain’s motion to suppress, the district court
concluded that Gerhardt’s answer to Swain’s question accurately explained that a
court would address Swain’s request for appointed counsel, outlined the
procedures, and properly informed Swain that there would be a delay that would
prevent the interview from continuing. This is not a clearly erroneous finding, nor
did the answer undermine Swain’s Miranda warnings. See Barbour, 70 F.3d at
Case: 15-12247 Date Filed: 03/09/2016 Page: 7 of 8

-- 7 of 8 --

8
585; see also Duckworth, 492 U.S. at 204, 109 S. Ct. at 2881. Indeed, after this
explanation, Gerhardt clarified whether Swain wanted to waive his rights and talk
to the agents at that time.
Therefore, after review of the record and consideration of the parties’ briefs,
we find that Swain’s waiver of his Miranda rights was given knowingly and
voluntarily, and we affirm the district court.
AFFIRMED.
Case: 15-12247 Date Filed: 03/09/2016 Page: 8 of 8

-- 8 of 8 --