United States Court of Appeals

For the Eighth Circuit

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No. 14-2949

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Reginald Bernard Williams

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: June 12, 2015

 Filed: July 20, 2015

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Before GRUENDER, BEAM, and BENTON, Circuit Judges.

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BEAM, Circuit Judge.

Reginald Williams appeals the district court's denial of his motion to suppress

physical evidence obtained fromsearches of Williams' rental car and motelroom, and
argues that the district court erred in failing to dismiss sua sponte the superseding

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indictment for vindictive prosecution. We affirm.

I. BACKGROUND

On September 13, 2012, Williams was arrested in the parking lot of a Days Inn

motel in Hazelwood, Missouri. Williams' arrest came as a result of a sting operation

in which law enforcement from several jurisdictions attempted to locate a missing

minor female from Illinois, who police believed was being prostituted online. As a

result of Williams' arrest, officers searched Williams' motel room where they found

the missing minor female as well as a second minor female, condoms, and cellular

phones, including a phone that a police officer acting undercover called earlier that

day to arrange a paid "date" with the minor females. 

After Williams wasin handcuffs,St.Louis County detective Michael Slaughter

approached Williams, told him he was being arrested on the charge of promoting

prostitution, and read Williams his Miranda rights. Detective Slaughter testified that 2

Williams stated he understood these admonitions and agreed to waive his right not

to speak to the detective. Williams asked Slaughter if his rental car, which wasin the

Days Inn parking lot, would be towed, and if he could remove some belongings from

the vehicle. Slaughter asked Williams if there was anything illegal in the vehicle, and

Williams responded that he had a registered firearm in the vehicle and gave Slaughter

verbal consent to search the vehicle. Williams watched the search being conducted,

and at no time communicated that he wanted to stop the search. Police found several

items in the cabin and trunk of the vehicle, including a firearm, condoms, and the

The Honorable Jean C. Hamilton, United States District Judge for the Eastern 1

District of Missouri, adopting the report and recommendation of the Honorable

Nannette A. Baker, United States Magistrate Judge for the Eastern District of

Missouri.

Miranda v. Arizona, 384 U.S. 436 (1966). 2

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following electronic devices: a laptop computer, a digital camera, an external hard

drive, a memory card and various DVDs and CD-rom disks.

Williams was subsequently transported to the St. Louis County police

headquarters, where Slaughter and FBI agent Nikki Badolato interviewed him. 

During the interview, which was recorded, Slaughter summarized his contact with

Williams prior to the start of the interview and stated that Williams had already been

read his Miranda rights. Williams acknowledged and agreed with Slaughter's

statements. Later in the interview, Slaughter asked Williams for consent to search the

electronic devices recovered during Williams' arrest, and Williams voluntarily

consented. Following this consent, and while the interview was ongoing, officers

searched Williams' electronic devices. At no point during the interview did Williams

withdraw his consent to search the electronic devices. A number of times during the

interview Slaughter and Badolato left the room and then reentered to continue their

questioning of Williams using information gathered from the search of the devices. 

More than five and a half hours into the interview, officers asked Williams for written

consent to search the electronic devices, in order to memorialize the verbal consent

Williams previously provided. Williams refused to sign the written consent-tosearch, and requested a lawyer. The officers immediately stopped questioning

Williams and terminated the interview. Officers subsequently secured search

warrants for the electronic devices and storage disks found in Williams' rental car,

and for the cellular phone found in Williams' motel room. 

Williams later filed motions to suppress the physical evidence obtained as a

result of his arrest, and the statements he made during the recorded interview.

Williams argued that he did not consent to the officers' search of his rental vehicle;

that he was not advised of, nor waived, his Miranda rights at the time of the

interview; and that prior to the start of the recorded interview, Williams requested to

call an attorney and that Slaughter coerced his statement by threatening to charge

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Williams with obstruction of justice if Williams did not agree to speak with the

officers. 

Williams was arraigned by a magistrate judge who, after a hearing on the

motions to suppress, issued a written report and recommendation suggesting that

Williams' motions to suppress be denied. Williams filed general objections to the

magistrate judge's report, but after de novo review of the record, the district court

adopted the report and recommendation. Williams filed second motionsto suppress. 

After a second evidentiary hearing, the magistrate judge issued a second report and

recommendation, again recommending denial of the motions to suppress. Williams

did not file objections to the second report and recommendation. The district court, 3

after de novo review, entered an order adopting the magistrate judge's second report

and recommendation and denying Williams' motions to suppress.

On October 3, 2012, Williams was indicted by a grand jury on one count of

interstate transportation of a minor with intent to engage in prostitution, in violation

of 18 U.S.C. § 2423(a). The government subsequently offered a guilty plea for

Williams on three counts, which Williams rejected. On July 24, 2013, the grand jury

returned a superseding indictment against Williams on five counts, including: Count

1, the original charge; Count 2, sex trafficking of a minor, in violation of 18 U.S.C.

§ 1591(a)(1); Count 3, attempted sex trafficking of a minor, in violation of 18 U.S.C.

§ 1591(a)(1); Count 4, possession of a firearm in furtherance of sex trafficking, in

violation of 18 U.S.C. § 924(c)(1)(A); and Count 5, using interstate facilities to

promote prostitution, in violation of 18 U.S.C. § 1952(a)(3). Some months later, the

government offered Williams a second plea deal, which Williams likewise declined. 

No additional charges were added after Williams' rejection of the second plea deal. 

Additionally, at trial, evidence seized from Williams' rental vehicle and motel 3

room–the physical evidence Williams sought to suppress–was offered by the

government and admitted without objection from the defense. 

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The case proceeded to a jury trial, and the jury returned a guilty verdict against

Williams on all five counts. Williams appeals, arguing that the district court erred in

denying his motion to suppress the physical evidence and erred in failing to dismiss

sua sponte the superseding indictment for vindictive prosecution. 

II. DISCUSSION

A. Standard of Review

Ordinarily, when reviewing a denial of a motion to suppress, we evaluate the

district court's findings of fact for clear error and review de novo the ultimate

conclusion of whether the Fourth Amendment was violated. United States v.

Rodriguez, 484 F.3d 1006, 1010 (8th Cir. 2007). However where, as here, the

defendant failed to object to the magistrate judge's report and recommendation

denying defendant's motionsto suppress, we review the court's factual determinations

for plain error. Id. at 1010-11. Similarly, Williams failed to raise the issue of

vindictive prosecution in the district court. Thus, we also review the district court's

failure to dismiss the superseding indictment sua sponte for plain error. See United

States v. Thornberg, 676 F.3d 703, 706 (8th Cir. 2012) (stating that an error, "even

one affecting a constitutional right," is forfeited, and thus subject to plain error

review, if it is not timely asserted). Under plain error review, the defendant must

show that "(1) the district court committed an error, (2) the error is clear or obvious,

and (3) the error affected his substantial rights." Id. (quotation omitted). 

Additionally, we have discretion to correct a forfeited error, and we will only do so

if the "error seriously affects the fairness, integrity or public reputation of judicial

proceedings." Id. (quotation omitted). 

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B. Motion to Suppress

Williams argues that the district court plainly erred in denying his motion to

suppress the physical electronic evidence because his consent to search was coerced

and the later-obtained search warrant would not have been obtained absent the illegal

police behavior. Williams testified at the suppression hearing that he asked for a

lawyer prior to the start of the recorded interview, and that he would not have agreed

to make a statement to police if Slaughter had not allegedly told him that he would

be charged with obstruction ofjustice. Slaughter testified at the hearing that Williams

did not ask for counsel until just before the end of the interview, and that once

Williams made the request the interview was terminated. Slaughter also denied

threatening to charge Williams with obstruction of justice if Williams refused to

speak with police. 

The magistrate judge, in her report and recommendation, found that based on

the totality of the circumstances, Williams was given his Miranda rights and

voluntarily and knowingly waived those rights. The magistrate judge further credited

Slaughter's testimony that Slaughter did not "use any threats against Williams in an

attempt to elicit a confession." However, the magistrate judge did not make an

express finding as to whether or not Slaughter specifically made the alleged

statementsthreatening to charge Williams with obstruction ofjustice. The magistrate

judge also held that as a matter of law, Slaughter's alleged statements that Williams

could be charged with obstruction of justice were possible charges based on the

officers' investigation.4

This was error. The record does not support a finding that Williams' conduct

4

preceding or following his arrest would qualify as obstruction of justice under the

statute. See 18 U.S.C. §§ 1501 et seq. However, as our analysis below illustrates,

this error does not impact the ultimate determination that Williams' statements were

voluntary.

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"A statement is involuntary when it was extracted by threats, violence, or

express or implied promises sufficient to overbear the defendant's will and critically

impair his capacity for self-determination." United States v. LeBrun, 363 F.3d 715,

724 (8th Cir. 2004) (en banc) (quotation omitted). To determine whether a statement

is voluntary we examine the totality of the circumstances, including the "conduct of

the officers and the characteristics of the accused." Id. (quotation omitted). The

magistrate judge's credibility determinations make clear that, based on the totality of

the circumstances, Williams' statements were voluntary. "A credibility finding made

by a magistrate judge after a hearing on the merits of a motion to suppress is virtually

unassailable on appeal." United States v. Shafer, 608 F.3d 1056, 1065 (8th Cir. 2010)

(internal quotation omitted). The magistrate judge resolved the contested issue of the

voluntariness ofWilliams' consent to search by finding that Slaughter'stestimonywas

credible. We find no error with these credibility determinations, and thus the

magistrate judge did not plainly err in recommending denial of Williams' motions to

suppress.

Williams also argues that it is necessary to remand the issue of Williams'

motion to suppress the physical evidence because the district court failed to make

specific factual findings regarding the obstruction of justice threats. While the

magistrate judge could have made her factual findings regarding whether Slaughter

threatened to charge Williams with obstruction of justice more explicit, there is no

question that she found Slaughter did not make such statements. Slaughter testified

that he did not threaten to charge Williams with obstruction of justice if Williams

refused to speak with police, and the magistrate judge credited Slaughter's testimony

that he "did not use any threats against Williams in an attempt to elicit a confession." 

Thus, it is not necessary to remand for further fact-finding. However, even if

Slaughter did make a statement threatening to charge Williams with obstruction of

justice, such a threat would not automatically render Williams' statements

involuntary. Cf. LeBrun, 363 F.3d at 725 (holding that a promise made by police

does not render a confession involuntary per se). Indeed, "whatever the facts of an

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individual case, our polestar always must be to determine whether or not the

authorities overbore the defendant's will and critically impaired his capacity for selfdetermination. Thus, it is not enough to show that the authorities' representations

were the but-for cause of a confession." Id. Williams presents no objective evidence

that, based on the totality of the circumstances, the officers' statements overbore

Williams' will and capacity for self-determination. Accordingly, the magistrate

judge's ultimate determination thatWilliams' statements were voluntary was not plain

error.

C. Vindictive Prosecution

Vindictive prosecution occurs when a prosecutor seeks to punish a defendant

solely for exercising a valid legal right. United States v. Leathers, 354 F.3d 955, 961

(8th Cir. 2004). Such prosecution constitutes a violation of due process. Id. The

defendant has the burden to demonstrate that the "prosecution was brought in order

to punish [him] for the exercise of a legal right," and because of the broad discretion

given to prosecutors in performing their duties, the defendant's burden to show

vindictive prosecution is "a heavy one." Id. Williams argues that the prosecution

sought to punish him for exercising his legal right to a trial when the government

filed the five-count superseding indictment following Williams' refusal of the

government's plea deal. 

A defendant can establish prosecutorial vindictiveness through two methods;

first, with "objective evidence of the prosecutor's vindictive or improper motive in

increasing the number or severity of charges." United States v. Chappell, 779 F.3d

872, 879 (8th Cir. 2015) (internal quotation omitted). "Absent such evidence, a

defendant may, in rare instances, rely upon a presumption of vindictiveness, if he

providessufficient evidence to showa reasonable likelihood of vindictiveness exists." 

Id. (alteration in original) (internal quotation omitted). In determining whether the

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presumption of vindictiveness applies we examine "the prosecutor's actions in the

context of the entire proceedings." Id. at 880 (quotation omitted).

Williams fails to prove prosecutorial vindictiveness under either approach. 

First, Williams offers no objective evidence in the record that the prosecutor filed the

superseding indictment in order to punish Williams for exercising his right to a trial. 

Second, the circumstancessurrounding the plea deals and the superseding indictment

do not establish a reasonable likelihood of vindictiveness, so no presumption of

vindictiveness is warranted. Williams' primary, if only, argument on appeal is that

the timing of the superseding indictment demonstrates vindictiveness, but timing

alone is insufficient to trigger the presumption of vindictiveness. United States v.

Campbell, 410 F.3d 456, 462 (8th Cir. 2005). Indeed, "[a] presumption does not arise

just because action detrimental to the defendant was taken after the exercise of the

defendant's legal rights; the context must also present a reasonable likelihood of

vindictiveness." Id. Williams provides no evidence–aside from the timing–to show

the context of the proceedings present a reasonable likelihood of vindictiveness, and

thus he fails to meet his heavy burden to establish prosecutorial vindictiveness. 

Accordingly, and especially under our standard of review, the district court did not

plainly err by failing to dismiss the superseding indictment on its own.

III. CONCLUSION

For the aforementioned reasons, we affirm the denial of Williams' motion to

suppress and deny Williams' claim of vindictive prosecution.

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