US v. Marlon Taylor

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cr-00192-JBF-TEM-1. Copies to all parties and the district court/agency. [998738083].. [11-4539]

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Date Filed: 12/07/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4539

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARLON CHRIS TAYLOR,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Jerome B. Friedman, Senior
District Judge. (2:10-cr-00192-JBF-TEM-1)

Submitted:

November 22, 2011

Decided:

December 7, 2011

Before KING, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David Charles Masselli, MASSELLI PC, Arlington, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Cameron M.
Rountree, Special Assistant United States Attorney, Norfolk,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marlon Chris Taylor appeals from his conviction for
possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1) (2006).

Taylor contends that the district

court erred in failing to suppress certain statements he made
concerning the firearm to ATF Task Force Officer Benjamin Newman
as

well

as

the

firearm

itself.

He

also

contends

that

the

district court improperly declined to instruct the jury on his
proffered justification defense.

For the reasons stated within,

we affirm.
In May 2010, Taylor’s former girlfriend (and next-door
neighbor)

reported

to

the

Portsmouth,

Taylor broke into her home and raped her.
dispatched to Taylor’s residence.

Virginia

police

that

Police officers were

Upon their arrival, Taylor

attempted to flee but was subdued in his backyard.

Officers

then entered his home to ensure that other individuals were not
present.
sweep.

They did not report finding a firearm during this
Officers then transported Taylor to the police station

to be interviewed, where he was advised of his Miranda rights.
Taylor invoked his right to counsel, whereupon the interview
ceased.

Subsequently,

officers

obtained

arrest

warrants

for

Taylor on numerous state charges, as well as a search warrant
for his residence.

The search warrant application did not refer

to the prior sweep of the residence.
2

In executing the search

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warrant, the officers found the handgun that is the subject of
this prosecution.
Taylor was held in state custody continuously pending
trial

on

charges

the

were

state
nolle

charges
prossed

until
in

November

favor

of

2010,

federal

when

those

prosecution.

Immediately upon Taylor's release from state custody, Officer
Newman arrested Taylor on the federal charge and transported him
to

the

United

States

Marshals

Service

Office.

While

transporting him, Officer Newman advised Taylor of his Miranda
rights

and

situation

asked

without

whether
a

he

lawyer

would

like

present.”

to

talk

Taylor

“about

stated

he

the
was

willing to talk, and explained that he possessed the firearm in
question only for a “few minutes” and only as a result of an
argument with his former girlfriend.

He stated further that she

“had the firearm in her waistband and showed it” to him as they
argued, but that she “wasn’t pointing it at him or threatening
him with it but she was just holding onto it.”

At some point in

the

weapon

argument,

Taylor

stated,

he

knocked

the

hands and placed it atop a kitchen cabinet.

from

her

He further advised

Newman that he did not know how the firearm ended up at his
residence.
By

pretrial

motion,

Taylor

sought

to

suppress

the

statements he made to Officer Newman as well as the firearm
itself.

Specifically, Taylor contended that (1) Officer Newman
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did not advise him of his Miranda rights before questioning him,
and

(2)

the

warrantless

firearm

sweep

of

was
his

improperly

residence

obtained

immediately

during
following

the
his

arrest (rather than during the execution of the search warrant).
After conducting a hearing at which several police officers and
Taylor testified, the district court denied the motion.

The

district court credited the testimony of the officers, and found
specifically that Officer Newman properly advised Taylor of his
Miranda rights during Taylor’s transfer into federal custody.
At trial, Taylor asked the court to instruct the jury
on a justification defense.

After hearing arguments, the court

declined to give the instruction.

The jury found Taylor guilty.

Taylor now appeals.
Taylor, in a shift in theory on appeal, first contends
that he timely and unambiguously invoked his Miranda right to
counsel while in state custody, that there was no cognizable
break in custody when he was released into federal custody to
Officer Newman, and that he did not initiate communication with
Newman.

Thus, he contends, his statements to Newman should have

been suppressed.

See Edwards v. Arizona, 451 U.S. 477 (1981);

Maryland v. Shatzer, 130 S. Ct. 1213 (2010).

We agree with the

government, however, that Taylor has waived this argument by
failing to raise it as a distinct ground in support of his

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motion to suppress.

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See United States v. White, 584 F.3d 935

(10th Cir. 2009), cert. denied, 130 S. Ct. 1721 (2010):
Rule
12(b)(3)(C)
of
the
Federal
Rules
of
Criminal Procedure requires that a party raise a
motion to suppress before trial. A party who fails to
do so “waives any Rule 12(b)(3) defense, objection, or
request,” although “[f]or good cause, the court may
grant relief from the waiver.” Fed.R.Crim.P. 12(e).
This waiver rule applies not only when a defendant
fails to file any pretrial motion to suppress, but
also when a defendant fails to assert a particular
argument in a pretrial suppression motion that he did
file . . . . To avoid waiving a particular argument,
the party must make “sufficiently definite, specific,
detailed
and
nonconjectural
factual
allegations
supporting his suppression claim” in his pretrial
motion.
Id. at 948 (emphasis added; citations omitted); see also United
States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005)(“Therefore,
in the context of a motion to suppress, a defendant must have
advanced substantially the same theories of suppression in the
district court as he or she seeks to rely upon in this Court.”);
United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976)(“The
Government very properly points out that the failure to assert a
particular ground in a pre-trial suppression motion operates as
a waiver of the right to challenge the subsequent admission of
evidence on that ground.”), cert. denied, 430 U.S. 906 (1977).
We can discern no good cause for Taylor’s failure to have raised
this

issue

below;

accordingly,

we

appeal.

5

decline

to

consider

it

on

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Taylor next challenges the district court’s decision
not to suppress the firearm found in his residence.

We review

the district court’s findings of fact for clear error and its
legal conclusions de novo.
690, 704 (4th Cir. 2006).

United States v. Uzenski, 434 F.3d
Taylor’s argument -- that the firearm

was actually found during the sweep of his residence following
his arrest, which he contends was illegal -- is not persuasive.
Taylor offers no reason to upset the court’s findings that the
pre-warrant sweep of his residence was limited to ensuring that
no one else was present, and that the firearm was found when
officers were executing a search warrant that did not refer to
the prior sweep.
Finally, Taylor contends that the district court erred
in declining to give a justification instruction.
court

commits

reversible

error

in

refusing

to

“A district
provide

a

proffered jury instruction only when the instruction “(1) was
correct; (2) was not substantially covered by the court's charge
to the jury; and (3) dealt with some point in the trial so
important,

that

failure
the

to

give

defendant's

the

requested

ability

to

instruction

seriously

impaired

conduct

his

defense.”

United States v. Passaro, 577 F.3d 207, 221 (4th Cir.

2009) (internal quotation marks omitted), cert. denied, 130 S.
Ct. 1551 (2010).

This court “review[s] the district court’s

decision to give or refuse to give a jury instruction for abuse
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of discretion.”

Date Filed: 12/07/2011

Id.

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To be entitled to a required instruction,

the party must establish a sufficient evidentiary foundation.
United States v. Lewis, 53 F.3d 29, 33 n.8 (4th Cir. 1995).
The

court

did

not

justification instruction.

err

in

declining

to

give

the

To be entitled to the instruction,

Taylor was required to “produce evidence which would allow the
factfinder to conclude” that, among other things, he was under
an

“unlawful

injury,”

and

that

present

he

did

threat

not

of

death

“recklessly

or

serious

place

himself

bodily
in

a

situation where he would be forced to engage in” the conduct,
and

that

he

“had

no

reasonable

legal

alternative.”

United

States v. Ricks, 573 F.3d 198, 202 (4th Cir. 2009) (internal
quotation marks omitted).

The only evidence Taylor offered as a

basis for the instruction, however, was his statement to Officer
Newman

that

his

former

girlfriend

had

the

firearm

in

waistband, and that he did not feel threatened by her.
district

court

cogently

reasoned,

such

evidence,

her

As the
even

if

accepted by the jury, does not provide a sufficient foundation
for the instruction.
Accordingly, we affirm the judgment of the district
court.
legal

We dispense with oral argument because the facts and
contentions

are

adequately

7

presented

in

the

materials

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before

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the

court

Date Filed: 12/07/2011

and

argument

would

Page: 8 of 8

not

aid

the

decisional

process.
AFFIRMED

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