United States v. Whittle ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4113
RICHARD HUGH WHITTLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-96-151)
Submitted: November 18, 1997
Decided: January 14, 1998
Before WILKINS and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Howard M. Miller, MILLER & MARX, P.C., Norfolk, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Laura M. Ever-
hart, Assistant United States Attorney, Norfolk, Virginia, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Richard Hugh Whittle pled guilty to murder, in violation of 18
U.S.C.A. § 1111 (West Supp. 1997), and rape, in violation of 18
U.S.C.A. § 2031 (current version at 18 U.S.C.A. § 2241 (West Supp.
1997)). He was sentenced to consecutive life sentences. Whittle pre-
served two issues for appeal: (1) whether the statute of limitations
had run on the offenses; and (2) whether his confession should have
been suppressed. We have reviewed the issues, and we affirm.
I
On March 25, 1982, Pamela Ann Kimbrue was raped and murdered
at the Naval Air Station in Norfolk, Virginia. Her body was found
inside her car, in the waters off the Station. Whittle was soon identi-
fied as a suspect, but the case was not prosecuted.
In 1995, the case was revived and assigned to the Naval Criminal
Investigative Service (NCIS) "Cold Case Squad," which reviews
unsolved homicides using modern forensic techniques. A fingerprint
lifted from the car matched Whittle's, and seminal fluid from Kimb-
rue's body was consistent with Whittle's DNA.
On June 26, 1996, Whittle was interviewed in California by two
special agents of the NCIS. The agents, dressed in casual civilian
clothing, approached Whittle as the latter was going to work. They
stated that they wanted to talk to him about Kimbrue's death. Whittle
went into the building to check in with his boss, leaving the agents
outside. Whittle's supervisor approached the agents and asked them
to speak to the corporation's attorney over the phone. They did so,
then left while Whittle and his supervisor consulted with the attorney.
The agents emphasized the voluntary nature of the interview, and
Whittle agreed that he would talk to them.
2
Whittle accompanied the agents to their hotel room. They informed
Whittle of his Miranda rights, and he initialed a form stating that he
understood them. The agents asked Whittle if he wanted an attorney,
and "he indicated he was willing to speak to us." All parties signed
the rights waiver. When questioned, Whittle soon admitted his
involvement in the crime. Over the course of the interview, Whittle
altered his story several times, finally admitting that he lay in wait for
Kimbrue, tied her up, struck her on the head, sexually assaulted her,
and, because she had seen his face, determined to"put her in the
water."
At a suppression hearing in the district court, Whittle alleged that
he requested an attorney at one point in the interview but was denied
one. According to the NCIS agent, Whittle mentioned an attorney
only in relation to getting a second opinion as to whether the statute
of limitations had run on the crime. The district court found that
Whittle's testimony that he asked for a lawyer was not credible, and
denied the motion to suppress.
II
Whittle alleges that the indictments should have been dismissed on
statute of limitations grounds. There is no limitations period for pros-
ecuting a capital offense. 18 U.S.C.A. § 3281 (West Supp. 1997).
Under 18 U.S.C.A. § 3282 (West Supp. 1997),"no person shall be
prosecuted, tried, or punished for any offense, not capital, unless the
indictment is found . . . within five years after such offense shall have
been committed." The indictments in this case were issued fourteen
years after the offense. Therefore, unless they are capital offenses
Whittle cannot be tried and punished for them. A capital offense is
one punishable by death. 18 U.S.C. § 3281.
At the time of the offense, 18 U.S.C. § 2031 provided, "whoever,
within the special maritime and territorial jurisdiction of the United
States, commits rape shall suffer death, or imprisonment for any term
of years or for life." Section 1111, 18 U.S.C., provided in part, "who-
ever is guilty of murder in the first degree, shall suffer death unless
the jury qualifies its verdict . . . ." Whittle argues that because the
death penalty could not constitutionally be imposed in 1982 under
Furman v. Georgia, 408 U.S. 238 (1972), his crimes are not capital
3
offenses. He also argues that, as Congress has eliminated the death
penalty for rape, it is not a capital crime.
Rather than eliminating the death penalty for rape, Congress has
revised the language of the relevant statutes. Under 18 U.S.C.A.
§ 2241 (West Supp. 1997) and 18 U.S.C.A. § 2245 (West Supp.
1997), Whittle's actions against Kimbrue would constitute aggravated
sexual abuse resulting in death. This crime is punishable by death or
imprisonment for a term of years or for life. 18 U.S.C. § 2245. There-
fore, Whittle's crime was a capital offense in 1982, and it remains a
capital offense. The murder of Kimbrue is also a capital offense. The
fact that Furman made it questionable whether the death penalty
could constitutionally be imposed does not alter the fact that the
offenses were capital crimes, and it does not "repeal statutes . . .
which depend for their operation on the defendant being charged with
a `capital crime.'" United States v. Watson, 496 F.2d 1125, 1127 (4th
Cir. 1973); see United States v. Manning, 56 F.3d 1188, 1195-96 (9th
Cir. 1995). We review the district court's decision regarding the
applicability of a particular statute of limitations de novo, Manning,
56 F.3d at 1195, and we hold that the district court ruled correctly in
denying Whittle's motion to dismiss the indictments on statute of lim-
itations grounds.
III
Whittle argues that his motion to suppress his confession should
have been granted because he asked to see an attorney. The district
court made factual findings that the NCIS agents did not intimidate
Whittle during the interview, and Whittle admitted his involvement in
the crime early in the session. In addition, the district court found that
Whittle understood and signed his rights waiver, knew that he could
stop the interview at any time and request a lawyer, and did not do
so. We review these factual findings under a clearly erroneous stan-
dard. United States v. Gordon, 895 F.2d 932, 939 (4th Cir. 1990).
Whittle does not dispute that he made an initial knowing and vol-
untary waiver of his right to counsel. A suspect must unambiguously
request an attorney to invoke his right to counsel in the course of an
interrogation. Davis v. United States, 512 U.S. 452, 459 (1994). Here,
Whittle had already admitted the acts that constituted the crime by the
4
time he made any mention of a lawyer. The district court did not err
in holding that Whittle did not make an unequivocal request for an
attorney such that a reasonable officer in those circumstances "would
understand the statement to be a request for an attorney." Id. There-
fore, the district court's denial of his motion to suppress is affirmed.
Accordingly, we affirm Whittle's conviction and sentence. We
grant his motion to file a supplemental, pro se brief. We have consid-
ered the issues raised in that brief and find them to be without merit.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
5