In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4251

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MYRON ROBINSON, a/k/a BOOJIE,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08 CR 00067—Elaine E. Bucklo, Judge.

ARGUED SEPTEMBER 17, 2009—DECIDED NOVEMBER 10, 2009

Before POSNER, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge. In 2003, Myron “Boojie”

Robinson gave law enforcement agents a signed statement implicating himself in criminal firearms trafficking.

In 2008, he was indicted for conspiring to transport firearms across state lines without a license and for

receiving firearms transported across state lines in violation of 18 U.S.C. § 922. Before trial, he filed a motion

to suppress the statement he had given to law enforce-
2 No. 08-4251

ment agents, arguing that he was interrogated in violation of his Fifth Amendment rights. The district court

denied the motion. The case went to trial and Robinson

was convicted. Robinson appeals, arguing that the

district court erred in denying his motion to suppress.

We affirm.

I. Background

Myron Robinson is apparently one of those people

who is blessed with the gift of gab, but in this case that

gift turned out to his detriment. Over the years, his criminal associations have brought him into contact with

quite a few federal and state law enforcement agents.

Despite the apparent conflicts of interest, Robinson has

kept in touch with several of these acquaintances. He

has even called them for advice on critical personal decisions, such as where to find the best criminal defense

representation. In 1995 and 1996, Robinson got to know

FBI Special Agent R. Lee Walters and Assistant

United States Attorney for the Northern District of

Illinois Brian Netols. At that time, Robinson was a cooperating witness in an undercover sting investigation involving corrupt police officers. Robinson was paid cash

for his cooperation, but during the investigation he

made false statements to federal agents, which led to his

guilty plea for violating 18 U.S.C. § 1001. He was sentenced to two years’ probation. Over the next decade,

Robinson kept in occasional contact with Agent Walters,

calling him as often as three times per year to catch up

and make small talk. Robinson also had some contact
No. 08-4251 3

A “straw purchase” occurs when one individual purchases a 1

firearm on behalf of another individual but fills out the

required Form 4473 as if he or she were the actual purchaser.

Such purchases are often used when the individual who

wishes to purchase the gun is prohibited from purchasing a

firearm for some reason, such as a previous felony conviction.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES,

FEDERAL FIREARMS REGULATIONS REFERENCE GUIDE 165 (2005).

with Netols over the years. Most recently, in early 2008,

he contacted Netols and asked for a recommendation

for an attorney to represent him in this case. Netols ended

the conversation after determining Robinson had been

charged in federal court and was represented by counsel.

Returning to 2002, after his brief stint assisting federal

law enforcement (and presumably after his term of probation had expired), Robinson and Carlos Orr went into

business together reselling ill-gotten guns in the Chicago

area. Robinson used his connections in Shreveport, Louisiana to make straw purchases of guns at pawn shops. 1

He and Orr used their Chicago connections to sell the

guns up north at a hefty profit. On at least two

occasions, Robinson and Orr traveled to Shreveport

and hired people without criminal backgrounds,

including Reginald Dean, Teresa Woodward, and Mary

Williams to make straw purchases of guns that Robinson

and Orr had selected. When they had assembled the

guns, Robinson and Orr boxed and shipped them via

Federal Express to Robinson’s home in Maywood, Illinois.

Once the guns arrived in Maywood, Robinson removed

the serial numbers and resold them to various buyers,
4 No. 08-4251

It is not clear what motivated Robinson to make this call in 2

the first place, but he apparently got Ferguson’s number from

a card that was left with Robinson’s mother.

including Roynel Coleman, who had introduced Orr and

Robinson. Sometime later, Chicago police officers recovered a .38-caliber High Point pistol and a 9-millimeter

High Point pistol, both with serial numbers removed.

Forensic specialists with the Illinois State Police were

able to restore the serial numbers, which matched

weapons that Woodward and Dean admitted to purchasing for Robinson in Shreveport.

In 2003, Robinson phoned Special Agent James

Ferguson of the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF”) and set up a meeting at Robinson’s

mother’s house in Maywood. Ferguson was part of a task 2

force with fellow ATF Agent Dave Balkema, Matt Gainer

of the Illinois State Police, and Joseph Bowers from the

Chicago Police Department. Before the meeting, Ferguson

checked the National Crime Information Center database

and discovered an outstanding warrant for Robinson

for retail theft, originating out of the Lombard, Illinois,

Police Department. When Ferguson and his team arrived

at the Maywood residence, they were met by Charles

Allen, Robinson’s attorney. Allen asked Ferguson what

they wanted and, after learning that the agents wished

to discuss an investigation into firearms trafficking,

informed Ferguson that Robinson would not talk to them

about the investigation. At that point, Agent Gainer

informed Allen that Robinson was going to be taken

into custody on the outstanding warrant.
No. 08-4251 5

The record does not indicate what happened after Robinson 3

was transported to Lombard, how he posted bond, or how

he got home from the station.

No explanation for the more-than-four-year delay between 4

Robinson’s incriminating statement in 2003 and his charging

(continued...)

Robinson and the government dispute many of the

details of the evening after that point. But in both

versions, shortly after the police arrived at his mother’s

residence Robinson was arrested and transported to the

Westchester, Illinois, Police Department at approximately

8:00 p.m. and later transferred to the Lombard Police

Department shortly before midnight. While at Robinson’s mother’s house his lawyer unambiguously

asserted Robinson’s right to counsel before Robinson

was arrested, and the government acknowledges that

Robinson was not informed of his Miranda rights at his

mother’s house or during the car ride to Westchester.

While at Westchester, however, Robinson signed a

Miranda waiver and a detailed statement implicating

himself in illicit firearms trafficking. After he signed the

statement, he was eventually transported to the Lombard

police station. Robinson’s mother testified that she

called the Lombard police station around 9:00 p.m. to

inquire about her son’s status, but neither she nor his

attorney went to the Lombard police station that evening.3

In 2008, a grand jury indicted Robinson in a twocount indictment for conspiring to transport firearms

purchased outside of Illinois and for receiving out-of-state

firearms in Illinois. Robinson moved to suppress the

4
6 No. 08-4251

(...continued) 4

in 2008 appears in the record. Agent Ferguson testified, however, that Robinson was not the primary target in 2003, and

Robinson implicated several individuals in his statement.

Perhaps if he was not the primary target, the police first

pursued the people whom he implicated.

incriminating statement from 2003. The district court

held an evidentiary hearing, at which it heard testimony

from, among others, Agents Ferguson and Gainer, and

from Robinson, Robinson’s mother, and Robinson’s

former attorney, Charles Allen.

Each side told varying versions of the 2003 events.

Everyone at least agreed that Robinson called Agent

Ferguson and that Ferguson and other law enforcement

agents came to the Maywood residence at his request.

All also agreed that Robinson was informed that he was

being arrested pursuant to a warrant out of the Lombard

Police Department. Ferguson testified that Agent Gainer

told Robinson that he was going to be taken to the

closer police department in Westchester, while Gainer

testified that he did not recall whether he told Robinson

or his attorney where he was going to be taken for processing. Robinson was given time to change his clothes

and was then taken to the Westchester Police Department.

According to Ferguson and Gainer, Robinson was not

questioned outside of routine processing questions and

was not informed of his Miranda rights. After about

twenty minutes at Westchester, Robinson asked

Ferguson, “What do you want?” Ferguson testified that

he informed Robinson that because Robinson’s attorney
No. 08-4251 7

had invoked Robinson’s right to counsel, a Miranda

waiver was required before they could discuss the investigation. At 8:41 p.m., Robinson signed a Miranda waiver;

at 11:15 p.m. he made changes to and signed a handwritten statement implicating himself and several others

in the gun trafficking conspiracy for which he was

later convicted.

In his testimony at the evidentiary hearing, Robinson

claimed that his attorney was told not only that the outstanding warrant for his arrest originated out of

Lombard, but that the officers were going to take him to

the Lombard Police Department. Robinson also claimed

that the officers began questioning him during the ride

to Westchester, continued interrogating him once they

arrived at the police station, and told him that he did not

need an attorney. Robinson testified that he signed the

incriminating statement at 11:15 p.m. “to get out of there”

and backdated the Miranda waiver to 8:41 p.m. at the

instruction of Agent Bowes.

The district court denied Robinson’s motion to suppress after finding that, although the question was close,

Robinson—not the police officers—reinitiated the conversation about firearms trafficking at the Westchester

Police Department. The district court found the evidence

of Robinson’s history of talking to law enforcement especially convincing and concluded that Robinson initiated

the conversation because he was confident he could talk

his way out of any trouble.

At trial, Robinson’s 2003 statement was published to

the jury and read out loud by Agent Ferguson during
8 No. 08-4251

his testimony. The jury convicted Robinson on both

counts of the indictment. The district court sentenced

Robinson to two consecutive terms of 60 months of imprisonment and 36 months of supervised release. On appeal,

Robinson challenges the district court’s denial of his

motion to suppress.

II. Discussion

Robinson argues that his statement should have been

suppressed and that, because the jury was allowed to

consider this evidence, we should reverse his conviction. We review the district court’s factual findings on

a motion to suppress for clear error and its legal conclusions de novo. United States v. Burks, 490 F.3d 563, 565

(7th Cir. 2007).

Under Miranda v. Arizona, 384 U.S. 436, 444 (1966), a

suspect must be informed of, and voluntarily waive,

his right to counsel before being subjected to custodial

interrogation. A waiver of the right to counsel is valid

only if, under the “totality of the circumstances,” the

waiver was knowing and voluntary. Edwards v. Arizona,

451 U.S. 477, 486 n.9 (1981). Once a suspect has informed

the police that he wishes to consult with a lawyer, all

interrogation of the suspect must cease “until counsel

has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85. A suspect

initiates conversation if he makes a statement that

“evince[s] a willingness and a desire for a generalized

discussion about the investigation.” Oregon v. Bradshaw,
No. 08-4251 9

Robinson claims that had he been taken to Lombard, his 5

mother would have somehow prevented him from giving a

statement. This argument ignores two facts: first, he initiated

conversation during the processing of the warrant, and could

not, in any event, have been released until after the warrant

was processed; second, he initiated conversation and signed

the Miranda waiver twenty minutes before his mother telephoned the Lombard station to inquire about his status.

462 U.S. 1039, 1046 (1983). By itself, a suspect’s initiation

of conversation does not necessarily constitute a waiver

of his right to counsel; the suspect’s waiver must also be

knowing and voluntary, under the totality of the circumstances, before law enforcement agents engage in any

interrogation. Edwards, 451 U.S. at 486 n.9.

Robinson claims that the district court erred in finding

that he reinitiated the conversation that resulted in his

incriminating statement. Specifically, he argues that

under the “totality of the circumstances” he could not

have reinitiated conversation with the agents. Robinson

claims that the officers first violated Edwards by deceiving

him by telling him he was going to the Lombard police

station but instead taking him to Westchester. He

claims this diversion was done with the intention of

eliciting an incriminating statement and that, but for the

diversion to Westchester, he would not have made the

incriminating statement. Therefore, he now insists, his 5

subsequent initiation of a conversation with the police

was not valid.

Robinson argues that the question of whether or

not he initiated the conversation is subject to de novo
10 No. 08-4251

There is no doubt that, under the facts as found by the 6

district court, Robinson’s unprompted question, “What do

you want?” was sufficient under Edwards to initiate a conversation. See Bradshaw, 462 U.S. at 1045 (upholding a finding

of initiation where defendant had asked, “Well, what is going

to happen to me now?”).

review. Not so. The so-called “totality of the circumstances” test addresses the distinct question of whether

a Miranda waiver was voluntary and knowing. While

that is a legal question subject to de novo review,

the district court’s underlying findings of fact, including

the necessary fact that a suspect initiated the conversation with law enforcement agents, are reviewed for

clear error. Bradshaw, 462 U.S. at 1046-47; see also 6

Edwards, 451 U.S. at 486 n.9.

Of course, if the officers’ conduct prior to the point

when Robinson initiated further conversation amounted

to interrogation, such interrogation would have

violated Edwards and rendered the subsequent initiation

and waiver invalid. But whether police officers intended

to elicit a suspect’s statement is not, as Robinson claims,

the standard for interrogations under the Fifth Amendment. Rather, absent direct interrogation, the officers

did not violate Robinson’s Fifth Amendment right to

counsel unless they should have known that the

practices they employed were “reasonably likely to elicit

an incriminating response” from Robinson. Rhode Island
No. 08-4251 11

This does not mean that the police officers’ intent is necessar7

ily irrelevant, as it might bear on whether they should have

known that their actions were likely to elicit an incriminating

response. Innis, 446 U.S. at 301-02 n.7.

v. Innis, 446 U.S. 291, 301(1980). As this court has inter- 7

preted this test, there is no violation unless “a reasonable

objective observer would have believed that the law

enforcement officer’s statements to the defendant were

reasonably likely to elicit an incriminating response.”

United States v. Hendrix, 509 F.3d 362, 374 (7th Cir. 2007)

(citations omitted); United States v. Westbrook, 125 F.3d

996, 1002 (7th Cir. 1997).

Here, the district court found that Robinson was not

directly interrogated by Agent Ferguson, and the surrounding facts do not suggest the type of coercive

practices that are the “functional equivalent” of interrogation. See Innis, 446 U.S. at 301. At most, the police

caused a slight delay in processing Robinson on the

retail theft warrant due to a delay in getting necessary

information from Lombard. But a short delay—in this

case probably less than half an hour—is not “reasonably

likely” to cause a suspect to make incriminating statements, even with the attendant hope that a suspect will

act against his own interests, initiate a conversation,

and incriminate himself. Nor did the police isolate Robinson from his attorney. In fact, the diversion and delay

did not actually deprive Robinson of his attorney’s presence or advice. Allen did not attempt to accompany

or follow Robinson to the police station. He was
12 No. 08-4251

equivocal regarding whether he planned to go to the

station at all that evening, as he was not representing

Robinson on the retail-theft charge, and did not, in fact,

make any further efforts on Robinson’s behalf that evening.

The district court found that less than an hour after

he left his attorney, Robinson disregarded his attorney’s

advice and initiated a conversation with the police. Given

this finding, we see no reason to believe that Robinson

would not have given the same statement had he been

taken directly to Lombard.

The question before us, then, is whether the district

court’s factual findings were clearly erroneous. In this

case, the district court held a hearing on Robinson’s

motion to suppress and heard testimony from virtually

everyone involved with his arrest, processing, and confession. After weighing the credibility of the witnesses

and considering Robinson’s history of cooperating and

otherwise voluntarily conversing with law enforcement,

the district court found that the agents’ story, rather

than Robinson’s, was credible and that Robinson had

reinitiated the conversation that led to his Miranda

waiver and subsequent confession.

Where a factual finding rests on the district court’s

credibility determination, it “is entitled to great deference

and can virtually never be clear error.” United States v.

Clark, 538 F.3d 803, 813 (7th Cir. 2008) (citations omitted).

Robinson correctly states that a district court finding is

clearly erroneous if it credits exceedingly improbable

testimony, such that we are left with the definite and

firm conviction that a mistake has been made. See Burks,
No. 08-4251 13

490 F.3d at 565. He cites contradictions between what

Agent Ferguson and Agent Gainer testified about what

they told Robinson concerning which police station he

would be taken to for booking. He also references variations in the minor details describing events that occurred

at the Westchester Police Department. Cumulatively, he

claims these inconsistencies made the officers’ testimony

exceedingly incredible, especially in light of Robinson’s

clear assertion of his right to counsel. Noting that the

district court found the question of who initiated the

conversation “close,” Robinson invites us to revisit the

factual question and reverse.

The types of minor inconsistencies between Gainer’s

and Ferguson’s testimonies that Robinson identifies are

hardly indicative of clear error. Indeed, he could be just

as skeptical of whether the agents were telling the truth

if there were no inconsistencies, considering nearly five

years had passed between the arrest in 2003 and the

evidentiary hearing in 2008. In any event, what Robinson

was told at his mother’s house, and where he thought

he was heading when he got in the police car have no

bearing on whether he initiated the conversation about

firearms when he arrived at Westchester. It is perhaps

odd that having anticipated the need to retain an

attorney and clearly asserting his right to counsel, Robinson so quickly disregarded his attorney’s advice and

confessed his involvement with the gun trafficking conspiracy. Whatever doubt that this unusual twist may

have raised was likely outweighed by the district court’s

recognition of Robinson’s demonstrated propensity to

chat with law enforcement agents and his belief that he
14 No. 08-4251

could talk his way out of any sort of trouble. That

the district court found the issue close only demonstrates

that it carefully weighed the evidence and made a reasonable finding. The district court believed the testimony of Agents Ferguson and Gainer, and we refuse to

second-guess that finding.

III. Conclusion

The district court did not commit clear error in finding

that Robinson initiated conversation with law enforcement. Therefore, the law enforcement agents did not

interrogate Robinson in violation of his Fifth Amendment

right to counsel, and the district court properly denied

Robinson’s motion to suppress his incriminating statements. Accordingly, we AFFIRM the district court’s judgment.

11-10-09