1

The Honorable Roger L. Wollman stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on January 31,

2002. He has been succeeded by the Honorable David R. Hansen.

2

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-2045

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

John J. Fellers, *

*

Appellant. *

___________

Submitted: October 16, 2001

Filed: April 8, 2002

___________

Before WOLLMAN,1

 Chief Judge, LAY, and RILEY, Circuit Judges.

___________

WOLLMAN, Chief Judge.

John Fellers appeals from the judgment of conviction entered and the sentence

imposed by the district court2

 for conspiracy to possess with intent to distribute

methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm.
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I.

On February 24, 2000, two policemen went to Fellers’s Lincoln, Nebraska,

home to arrest him for conspiracy to distribute methamphetamine. After Fellers

admitted the police to the house, they told him that they were there pursuant to an

indictment and that they wanted to discuss his involvement in the use and distribution

of methamphetamine and his associations with certain persons. Fellers responded by

stating that he had associated with the named persons and that he had used

methamphetamine. At no time during this conversation did the police advise Fellers

of his Miranda rights.

The officers then escorted Fellers to jail, where they advised him of his

Miranda rights. Fellers signed a written Miranda waiver form and agreed to speak

with the officers. During this conversation, Fellers reiterated the inculpatory

statements made at his home and admitted his association with several more coconspirators.

Fellers moved to suppress both the inculpatory statements made at his home

and those made at the jail. A magistrate judge found that both sets of statements

should be suppressed because Fellers was in custody at the time he made the

statements at his home, the officers used deceptive stratagems to prompt those

statements, and the subsequent statements at the jail would not have been made but

for the prior ill-gotten statements. The district court agreed that the statements made

at Fellers’s home should be suppressed, but admitted the statements made at the jail

after finding that Fellers had knowingly and voluntarily waived his Miranda rights

before making those statements.

The jury found that Fellers had conspired to distribute and to possess with

intent to distribute between 50 and 500 grams of methamphetamine. At sentencing,
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the district court held Fellers responsible for more than 500 grams of

methamphetamine and denied Fellers’s request for a mitigating role adjustment, as

well as his motion for a downward departure. After finding that category II did not

adequately reflect the seriousness of Fellers’s past criminal conduct, the district court

raised Fellers’s criminal history category to III and sentenced him to 151 months’

imprisonment.

II.

Fellers argues that the district court should have suppressed his inculpatory

statements made at the jail because the primary taint of the improperly elicited

statements made at his home was not removed by the recitation of his Miranda rights

at the jail.

The voluntariness of a confession is a legal inquiry subject to plenary appellate

review. United States v. Robinson, 20 F.3d 320, 322 (8th Cir. 1994). To determine

if Fellers’s inculpatory statements at the jail were voluntary, we must determine if, “in

light of the totality of the circumstances, the pressures exerted by the authorities

overwhelmed the defendant’s will. Coercive police activity is a necessary predicate

to finding that a confession is not voluntary in the constitutional sense.” Id. (citing

Colorado v. Connelly, 479 U.S. 157, 167 (1986)) (internal citation omitted).

Contrary to Fellers’s contention otherwise, we conclude that Oregon v. Elstad,

470 U.S. 298 (1985), renders admissible the statements made by Fellers at the jail.

In that case, two officers went to Elstad’s residence with a warrant to arrest him for

the burglary of a neighbor’s home. One of the officers told Elstad that he believed

that Elstad had been involved in the burglary, whereupon Elstad responded “Yes, I

was there.” The officers then transported Elstad to the sheriff’s office, where,

approximately one hour later, they advised Elstad of his Miranda rights. Elstad

indicated that he understood his rights and that he wished to waive them. Elstad then
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signed a written statement explaining his role in the burglary. The trial court

suppressed Elstad’s initial oral statement, but admitted his written confession. Id. at

300-302. In holding that the statement given at the sheriff’s office was admissible,

the Court stated: 

It [would be] an unwarranted extension of Miranda to hold that simple

failure to administer the warnings, unaccompanied by any actual

coercion or other circumstances calculated to undermine the suspect’s

ability to exercise his free will, so taints the investigatory process that

a subsequent voluntary and informed waiver is ineffective for some

indeterminate period. Though Miranda requires that the unwarned

admission must be suppressed, the admissibility of any subsequent

statement should turn in these circumstances solely on whether it is

knowingly and voluntarily made.

Elstad, 470 U.S. at 309.

Citing Patterson v. Illinois, 487 U.S. 285 (1988), Fellers argues that the

officers’ failure to administer the Miranda warnings at his home violated his sixth

amendment right to counsel inasmuch as the encounter constituted a post-indictment

interview. Patterson is not applicable here, however, for the officers did not

interrogate Fellers at his home. 

Finally, we conclude that the record amply supports the district court’s finding

that Fellers’s jailhouse statements were knowingly and voluntarily made following

the administration of the Miranda warning. See Elstad, 470 U.S. at 314-15;

Robinson, 20 F.3d at 322. Accordingly, the district court did not err in denying the

motion to suppress the statements made at the jail.
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III.

Fellers argues that the district court should not have admitted

methamphetamine seized from a co-conspirator. We review under an abuse of

discretion standard a district court’s rulings on the admissibility of evidence. We find

no abuse of discretion here, for the evidence established that the seized drugs were

part of the on-going conspiracy for which Fellers was prosecuted. United States v.

Maynie, 257 F.3d 908, 915 (8th Cir. 2001). 

Fellers next argues that the district court erred in limiting his cross examination

of a witness. “Absent a clear abuse of discretion and a showing of prejudice, we will

not reverse a district court’s ruling limiting cross-examination of a prosecution

witness on the basis that it impermissibly infringed [the defendant’s] right of

confrontation.” United States v. Stewart, 122 F.3d 625, 627 (8th Cir. 1997). The

record reveals that Fellers was allowed to cross-examine the witness about the issues

with which he was concerned, and thus we find no abuse of discretion in the district

court’s ruling.

Fellers contends that the evidence was insufficient to support the verdict.

“When reviewing the sufficiency of the evidence, we view the evidence in the light

most favorable to the verdict and give the government the benefit of all reasonable

inferences. We will reverse ‘only if a reasonable jury must have had a reasonable

doubt that the elements of the crime were established.’” United States v. Santana,

150 F.3d 860, 864 (8th Cir. 1998) (quoting United States v. Carlisle, 118 F.3d 1271,

1273 (8th Cir. 1997)) (internal quotations and citations omitted). Fellers’s argument

rests almost entirely on his assertion that the testimony of his co-conspirators was not

credible and should have been disregarded. “Assessing the credibility of witnesses

is a matter properly left to the jury.” Santana, 150 F.3d at 864 (citing United States

v. Anderson, 78 F.3d 420, 422-23 (8th Cir. 1996)). The jury heard testimony from

multiple witnesses that they bought from and sold to Fellers methamphetamine,
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including testimony that the quantities sold to Fellers were sufficient for

redistribution to others. This testimony was sufficient to support Fellers’s conviction.

Fellers contends that the court erred in denying his motion for a new trial based

upon newly discovered evidence.

We review under an abuse of discretion standard the denial of a motion

for a new trial. A defendant is entitled to a new trial based on newly

discovered evidence only if he can show (1) that the evidence was not

discovered until after the trial; (2) that due diligence would not have

revealed the evidence; (3) that the evidence is not merely cumulative or

impeaching; (4) that the evidence is material; and (5) that the evidence

is such as to be likely to lead to acquittal.

United States v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001) (citing Lindhorst v. United

States, 658 F.2d 598, 602 (8th Cir. 1981)). Because the new evidence Fellers points

to is merely impeachment evidence, the district court did not abuse its discretion in

denying the motion.

IV.

Fellers’s remaining arguments concern alleged errors committed in calculating

his sentence under the Sentencing Guidelines.

Fellers argues that the district court erred in calculating the amount of drugs for

which he was responsible. “We review a district court’s drug quantity calculations

for clear error, and we will reverse only if our examination of the entire record

‘definitely and firmly convinces us that a mistake has been made.’” Santana, 150

F.3d at 864 (quoting United States v. Moss, 138 F.3d 742, 745 (8th Cir. 1998)). The

jury found that Fellers was responsible for at least 50 but less than 500 grams of

methamphetamine. The district court determined that the quantity of
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methamphetamine that was reasonably foreseeable to Fellers during the course of the

conspiracy was more than 500 grams but less than 1.5 kilograms, a finding that we

conclude is not clearly erroneous. Fellers argues that even though his sentence does

not exceed the statutory maximum allowable under the jury’s verdict, the sentence

should be reversed because it is based upon a finding of drug quantity that exceeds

that found by the jury. Fellers acknowledges that Apprendi v. New Jersey, 530 U.S.

466 (2000), does not require such a result, and we decline to extend Apprendi to

encompass Fellers’s situation. As we held in United States v. Hollingsworth, 257

F.3d 871, 878 (8th Cir. 2001), it is “proper for the sentencing judge to then make

more exact calculations for purposes of computing the offense level under the

guidelines and determining where the sentence will actually fall within the statutory

range determined by the jury’s verdict.”

Fellers contends that the district court erred in finding that his criminal history

category did not adequately reflect the seriousness of his past criminal conduct. We

review the district court’s departure from the Sentencing Guidelines for an abuse of

discretion. United States v. Payne, 940 F.2d 286, 293 (8th Cir. 1991). The court may

depart upward if “reliable information indicates that the criminal history category

does not adequately reflect the seriousness of the defendant’s past criminal conduct

or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3.

Without recounting the details of Fellers’s past criminal conduct, we conclude that

the district court did not abuse its discretion in determining that an upward departure

was warranted.

Fellers challenges district court’s denial of his motion for downward departure.

So long as a district court is aware of its authority to depart downward, as it clearly

was in this case, its refusal to exercise its discretion to depart from the applicable

guideline range is unreviewable, United States v. Evidente, 894 F.2d 1000, 1004-05

(8th Cir. 1990), and thus Fellers’s challenge fails.
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Finally, Fellers argues that the district court erred in denying him a two-level

reduction as a minor participant. “[W]hether a defendant qualifies for a minor

participant reduction is a question of fact, the determination of which we review for

clear error.” United States v. Alvarez, 235 F.3d 1086, 1090 (8th Cir. 2000) (quoting

United States v. Hale, 1 F.3d 691, 694 (8th Cir. 1993)). Fellers argues that he was

less culpable than other participants because the majority of the evidence showed him

as receiving the drugs, not distributing them. There was sufficient evidence

indicating that Fellers had a larger role in the conspiracy than being a mere user,

however, and thus the district court did not err in finding that Fellers was not a minor

participant in the conspiracy.

The judgment is affirmed.

RILEY, Circuit Judge, concurring.

In all respects but one, I concur in the Court’s well-reasoned opinion. My

disagreement, which does not affect the ultimate resolution of this case, concerns

whether the arresting officers violated Fellers’s right to counsel under the Sixth

Amendment.

Because Fellers was under indictment at the time of his arrest, he had a

constitutional right to the presence of counsel during police interrogation. Massiah

v. United States, 377 U.S. 201, 205-06 (1964). For purposes of this right, an

interrogation takes place when agents of law enforcement deliberately attempt to

elicit incriminating information from the indicted defendant. See id. at 206.

Although the officers in this case did not ask Fellers any questions, they deliberately

elicited incriminating information by telling Fellers they wanted to discuss his

involvement in the use and distribution of methamphetamine. This post-indictment

conduct outside the presence of counsel violated Fellers’s right to counsel under the

Sixth Amendment. See United States v. Henry, 447 U.S. 264, 270-71 (1980); Brewer
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v. Williams, 430 U.S. 387, 399-401 (1977); cf. Rhode Island v. Innis, 446 U.S. 291,

300-02 & 300 n.4 (1980).

Nevertheless, I do not believe this constitutional violation takes Fellers’s case

outside the rationale of Oregon v. Elstad, 470 U.S. 298 (1985). The Supreme Court

“has never held that the psychological impact of voluntary disclosure of a guilty

secret . . . compromises the voluntariness of a subsequent informed waiver.” Id. at

312. Fellers knowingly and voluntarily waived his Sixth Amendment rights at the

jail, and his subsequent statements were thus admissible at his criminal trial.

Accordingly, I concur in the judgment of the Court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.