USA v. William Gordon Isaac

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 12, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-10179
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cr-20509-JEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
WILLIAM GORDON ISAAC,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 12, 2011)
Before EDMONDSON, MARCUS and KRAVITCH, Circuit Judges.

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PER CURIAM:
William G. Isaac, Jr. appeals his convictions for attempting to import into the
United States 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 952(a) and
963, and attempted possession with intent to distribute 500 grams or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846. On appeal, Isaac argues that: (1) law
enforcement officials at the Miami airport, who detained him after Peruvian officials
notified them that they had discovered cocaine in his checked luggage upon his
departure from Lima, should have stopped questioning him once he invoked his right
to counsel by refusing to sign a Miranda v. Arizona, 384 U.S. 436 (1966), rights
waiver form; and (2) the district court failed to make any findings that he was able to
pay a fine, and improperly imposed a total fine of $25,000. After thorough review,
we affirm.
We review a district court’s denial of a motion to suppress as a mixed question
of law and fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009).
Rulings of law are reviewed de novo, while the district court’s findings of fact are
reviewed for clear error. Id. Factual findings are reviewed in the light most favorable
to the prevailing party in the district court. Id. We review a district court’s decision
to impose a fine for clear error. United States v. Rowland, 906 F.2d 621, 623 (11th
Cir. 1990).
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First, we are unpersuaded by Isaac’s Miranda claim. In Miranda, the Supreme
Court considered the scope of the Fifth Amendment privilege against
self-incrimination and held that the government “may not use 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.” 384 U.S. at 444. An individual is considered
to be “in custody” for purposes of receiving Miranda protection where “there is a
formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotation
omitted). “It is well established that ‘[t]he government must prove by a
preponderance of the evidence that [the defendant] made a knowing, voluntary and
intelligent waiver of his Miranda rights.” United States v. Chirinos, 112 F.3d 1089,
1102 (11th Cir. 1997) (citation omitted) (brackets in original). A waiver is effective
where the “totality of the circumstances surrounding the interrogation reveal both an
uncoerced choice and the requisite level of comprehension.” United States v.
Barbour, 70 F.3d 580, 585 (11th Cir. 1995) (quoting Moran v. Burbine, 475 U.S. 412,
421 (1986)).
When a person undergoing a custodial interrogation states that he wishes to
remain silent, “the questioning must end, and if he expresses a desire to consult with
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an attorney, the questioning must cease until one is provided for him.” United States
v. Acosta, 363 F.3d 1141, 1151 (11th Cir. 2004). However, the Supreme Court has
held that law enforcement officers have no duty to stop an interrogation where the
suspect’s invocation of either of those rights is equivocal. Davis v. United States, 512
U.S. 452, 461-62 (1994). In Davis, the Supreme Court held:
Invocation of the Miranda right to counsel requires, at a minimum, some
statement that can reasonably be construed to be an expression of a
desire for the assistance of an attorney. But if a suspect makes a
reference to an attorney that is ambiguous or equivocal in that a
reasonable officer in light of the circumstances would have understood
only that the suspect might be invoking the right to counsel, our
precedents do not require the cessation of questioning. Rather, the
suspect must unambiguously request counsel.
512 U.S. at 459 (internal citations omitted). When an accused invokes his right to
have counsel present during a custodial interrogation, he may not be subjected to
further interrogation until counsel has been made available or the accused himself
initiates further communication, exchanges, or conversations with police. Edwards
v. Arizona, 451 U.S. 477, 484-85 (1981).
A refusal to sign a waiver of rights form is not enough to constitute an
invocation of the right to counsel. Acosta, 363 F.3d at 1154 (citation omitted). In
Acosta, the defendant was arrested and subject to questioning by law enforcement
officials on suspicion of possession of drugs. Id. at 1142-43. During the interview,
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officers instructed Acosta to read a Miranda rights form aloud and to initial each
paragraph as the officer went through the form. Id. at 1143. Acosta acknowledged
that he understood his Miranda rights both by initialing each paragraph of the form
and also by reading the entire form aloud. Id. When asked if he wanted to waive his
rights, Acosta declined, but he later stated that he was willing to collaborate with the
police. Id. at 1144. However, he refused to sign the rights form “because I am not
going to waive my rights.” Id. We concluded that Acosta had not unambiguously
and unequivocally invoked his right to remain silent or his right to counsel while
being questioned. Id. at 1155. We employed an objective inquiry to determine
whether a reasonable officer under similar circumstances would have understood the
defendant’s statement as invoking his right to remain silent or his right to an attorney.
Id. at 1154. We noted that the defendant in Acosta might have refused to sign the
form because he (1) did not fully understand the form and was afraid of permanently
relinquishing a right, (2) might have been invoking his right to remain silent, or (3)
he did not want to sign a written waiver of his rights because he thought that a signed
waiver might be irrevocable. Id. As a result, the presence of multiple plausible,
differing interpretations rendered the act ambiguous. Id. at 1155.
In this case, viewing the facts in the light most favorable to the government, the
district court did not err in denying Isaac’s motion to suppress his admission to law
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enforcement officials because first, he was verbally advised of and voluntarily waived
his Miranda rights, and second, Isaac did not unequivocally invoke his right to
counsel. At the suppression hearing, DEA Special Agent Temprano testified that he
verbally advised Isaac of his Miranda rights at the start of the interview, and Isaac
acknowledged that he understood his rights and did not ask for a lawyer at that point.
Moreover, Isaac himself admitted that Temprano read him Miranda rights and he both
understood and was familiar with those rights. Following the administration of the
verbal warnings, Isaac voluntarily agreed to answer the agents’ questions and made
several incriminating statements, including that the reason for the questioning was
due to his previous criminal charges, that he was involved in the importation of
cocaine because he was suffering financial distress, and the contents of his suitcase
in Peru included cocaine. The record thus shows that after being advised of his
rights, Isaac did not indicate unambiguously that he wished to invoke them. Edwards,
451 U.S. at 484-85. The record further shows that Isaac was not coerced or promised
anything in exchange for his statements. Based on the totality of the circumstances,
including the uncoerced nature of the interview and Isaac’s comprehension of his
rights, Isaac effectively waived his Miranda rights. Barbour, 70 F.3d at 585.
Nor did Isaac ever clearly invoke his right to counsel during the interview, and,
therefore, law enforcement officers were under no duty to cease questioning. Davis,
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512 U.S. at 461-62. As noted, Isaac acknowledged that he understood Special Agent
Temprano’s verbal recitation of his Miranda rights and voluntarily agreed to proceed
with the questioning. When Temprano eventually procured a copy of a rights waiver
form, Isaac initialed the paragraphs on the upper-half of the rights waiver form, and
only when he was asked to sign the bottom of the rights waiver form did Isaac say
that he had spent many years doing legal research in prison and he would not sign any
forms without speaking to his attorney in California. The district court adopted the
magistrate’s finding that Isaac’s statement concerning an attorney was limited to the
act of not signing the waiver form, as opposed to invoking his Fifth Amendment right
to counsel during the interview. Similar to the defendant in Acosta, Isaac agreed to
answer the agents’ questions, but he might not have wanted to sign the rights form
because he was afraid that a signed waiver might be irrevocable. 363 F.3d at 1154.
As a result, his statement about the California attorney could be subject to multiple
reasonable interpretations, thereby rendering its meaning ambiguous. Id. at 1154-55.
Following Isaac’s refusal to sign the rights waiver form, Temprano wrapped
up the interview by informing Isaac that the government would be interested in his
cooperation to further their investigation, including the source of the drugs, to which
Isaac responded that he did not have a buyer in the United States yet. Although this
was an incriminating statement, Isaac uttered the statement after being advised of, and
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voluntarily waiving his Miranda rights. Moreover, although he mentioned his
attorney in California, this was, as noted, in reference to the act of signing the rights
waiver form, and Isaac never clearly invoked his right to counsel with regard to the
agents’ line of questioning. Under these circumstances, a reasonable officer could
have understood only that Isaac might be invoking the right to counsel, and, thus, law
enforcement officers were not required to end the questioning. Davis, 512 U.S. at
459. Accordingly, the district court did not err in denying Isaac’s motion to suppress.
We are also unpersuaded that the district court clearly erred in imposing a fine.
The Sentencing Guidelines require the district court to impose a fine unless the
defendant establishes that he is unable to pay, and is unlikely to become able to pay,
any fine. U.S.S.G. § 5E1.2(a). Thus, the burden is on the defendant to prove his
inability to pay a fine. United States v. Hernandez, 160 F.3d 661, 665 (11th Cir.
1998). If a defendant establishes that he is unable to pay a fine or that the fine would
burden his dependents, the court may waive the fine or impose a lesser fine. U.S.S.G.
§ 5E1.2(e).
Once a district court decides that a fine is appropriate, it must consider the
factors in § 5E1.2(d) to determine the amount of the fine. Hernandez, 160 F.3d at
665. These factors are: (1) the need for the sentence to reflect the seriousness of the
offense, promote respect for the law, provide just punishment, and afford adequate
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deterrence; (2) the defendant’s ability to pay the fine in light of his earning capacity
and financial resources; (3) the burden that the fine places on the defendant and his
dependents; (4) any restitution that the defendant has made or will be required to
make; (5) the collateral consequences of the conviction; (6) whether the defendant has
previously been fined for a similar offense; (7) the expected costs to the government
of any term of probation, imprisonment, or supervised release; and (8) any other
pertinent equitable considerations. U.S.S.G. § 5E1.2(d). In considering the second
factor, the financial inability of a defendant to post a bail bond and the fact that a
defendant is represented by appointed counsel are “significant indicators” of a
defendant’s present inability to pay, and, in conjunction with other factors, may
indicate that the defendant is unlikely to become able to pay a fine. U.S.S.G. § 5E1.2,
comment. (n.3).
A district court is not required to make specific findings for each of the §
5E1.2(d) factors. United States v. Gonzalez, 541 F.3d 1250, 1256 (11th Cir. 2008).
However, the record must contain sufficient information with respect to the factors
to permit us to conclude that the district court did not clearly err in imposing or
setting the amount of the fine. Id. If the presentence investigation report (“PSI”)
presented information with respect to the factors, and the district court reviewed the
PSI prior to imposing the fine, we “infer without hesitation” that the district court
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considered the pertinent factors before imposing the fine. United States v. Khawaja,
118 F.3d 1454, 1459 (11th Cir. 1997). However, if the record does not reflect the
district court’s reasoned basis for imposing a fine, we must remand the case for the
necessary factual findings to be made. Gonzalez, 541 F.3d at 1256.
Here, Isaac failed to establish that he lacked either the present or future ability
to pay a fine. Hernandez, 160 F.3d at 665. In the first place, Isaac failed to
demonstrate that he lacks the present ability to pay a fine because (1) a trust in his
name contained two unencumbered properties worth approximately $500,000 each;
(2) a public records search revealed a 2010 BMW M3 registered to Isaac; (3) while
on supervised release, Isaac reported rental income of approximately $3,000 a month
from a property located in Sherman Oaks, California; and (4) although Isaac had court
appointed counsel during his appeal, he had retained private counsel during his trial
and sentencing hearing. Isaac attempted to refute the PSI’s findings concerning his
ownership of the two properties, but he offered no actual evidence beyond his own
statement that the trust could be in his father’s name, and that he did not have access
to the trust’s assets.
Moreover, Isaac was unable to establish that he would be unable to pay a fine
in the future. First, despite his claim that he lacked the ability to earn income, the PSI
revealed that he had a college degree in business administration, graduating cum
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laude. From 2008 to June 2010, Isaac worked as a property manager, earning
approximately $3,000 per month. In addition, although Isaac was incarcerated from
1999 through 2007, prior to that time period, he was a self-employed independent
contractor. Therefore, Isaac had at least some skills with which he could earn a
living. Further, both the PSI and the district court concluded that Isaac could
contribute to a fine while incarcerated, and the court specifically noted that it could
take account of the information contained in the PSI because the probation officer had
relied on public records. Khawaja, 118 F.3d at 1459. Lastly, the district court
imposed a fine at the bottom end of the guideline range on both counts. Thus,
because Isaac failed to meet his burden of showing that he could not pay any fine
either now or in the future, we affirm the district court’s decision to impose a fine.
AFFIRMED.
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