United States v. Michael Ostrander (04-1157) Robert Ostrander (04-1380)
Docket: 04-1157, 04-1380
Court: Court of Appeals for the Sixth Circuit; June 10, 2005; Federal Appellate Court
Robert Ostrander sought to revive his failing drug business by murdering a customer, Hansle Andrews, and enlisted his brother, Michael Ostrander, to assist. He lured Andrews into the woods under false pretenses and, with Michael's help, fatally shot him. Both brothers were convicted in separate trials of conspiracy to distribute cocaine and marijuana, murder with a firearm during a drug trafficking crime, and murder with a firearm during a Hobbs Act violation, receiving life sentences without the possibility of parole. They appealed their murder convictions, with Michael also contesting the denial of his motion to suppress his FBI confession and seeking a lesser sentence or a downward departure based on substantial assistance. The appeals court affirmed the district court's decisions on all matters, with only the sentencing discretion issue being published; other issues were addressed in an unpublished appendix. Robert had previously employed Michael, his wife, and a friend for drug sales but faced financial difficulties that led him to plan the murder to regain capital. His initial accomplice, Jon Mercer, declined to participate in the murder but later pleaded guilty as an accessory.
On August 12, 2000, Michael, following a plan devised by Robert, drove to a secluded location with a gun and latex gloves intended for a murder. After waiting for Robert and Andrews, Michael engaged Andrews in conversation while Robert retrieved the gun from Michael's car. Robert shot Andrews multiple times when prompted for money. The body was buried in the woods, and Robert drove Andrews's truck to Las Vegas to dispose of it. Michael later coordinated with Mercer to dispose of Andrews's clothes and discarded the gun at a remote pier.
Both Michael and Robert faced charges in a third superseding indictment for conspiracy to distribute drugs, murder with a firearm during a drug trafficking crime, and murder during a violation of the Hobbs Act. The government sought the death penalty for both. Michael was ultimately sentenced to life in prison without the possibility of release after the jury chose this option during the penalty phase. He requested the court to compel the prosecution to file a motion for a downward departure based on his cooperation in testifying against Robert, but the court denied this request, stating it lacked discretion since there was no plea agreement.
Michael appealed, arguing that the district judge could override the jury's life sentence and that the judge should have compelled the government to recognize his substantial assistance. However, the court upheld the jury's recommendation, affirming that the judge was required to impose the life sentence per the jury's decision, thus not addressing the motion to compel issue. Michael was convicted under 18 U.S.C. 924(j) for causing the death of Hansle Andrews during a drug trafficking offense, which allows for a sentence of death or life imprisonment if the killing qualifies as murder.
Section 1111(a) of Title 18 outlines the definitions of murder, while section 1111(b) differentiates between first-degree and second-degree murder. First-degree murder carries penalties of death or life imprisonment, whereas second-degree murder can lead to life or a set number of years in prison. Michael was sentenced under the Federal Death Penalty Act, which mandates that a jury, after considering aggravating and mitigating factors, unanimously recommend a sentence of death, life without parole, or a lesser sentence. The jury recommended life imprisonment without the possibility of release.
According to 18 U.S.C. 3594, if the jury recommends death or life without parole, the court must impose that sentence; otherwise, it can impose a lesser sentence authorized by law. Michael claims the judge had the discretion to impose a term of years instead of life without parole, asserting that the language in 18 U.S.C. 924(j) permits such a sentence, and contending that the terms "recommend" and "shall sentence accordingly" in the statutes should be interpreted as precatory rather than mandatory.
The Fourth Circuit supports Michael's view that 924(j) only incorporates the definition of murder from section 1111, preventing a first-degree murder conviction under 924(j) from being a mandatory life sentence. However, this interpretation does not grant the judge the authority to disregard the jury's recommendation. The jury chose to recommend life without parole rather than a term of years. Michael argued that the judge could override this recommendation due to his substantial assistance in testifying against his brother, but the district judge maintained that the statutory language required adherence to the jury's life sentence recommendation, leaving no room for discretion. Michael contends that "sentence accordingly" in 3594 refers to the statute of conviction, implying that the option for a lesser sentence would be rendered meaningless if the jury's recommendation must be followed.
Michael argues that the language "recommend" in statutes 3593(e) and 3594 is non-binding and merely advisory. However, case law contradicts this view, as established in Jones v. United States, which asserts that a court may only impose a sentence of years if the jury does not reach a unanimous decision on the death penalty or life imprisonment. If the jury recommends the death penalty, the court is obliged to impose that sentence, as supported by In re United States. The judge informed the jury that their recommendation of death or life imprisonment was mandatory, ensuring they understood their role in the sentencing process, as emphasized in Romano v. Oklahoma. Even if the jury's recommendation were advisory, the directive in 3594 that the judge "shall sentence the defendant accordingly" constitutes a binding requirement. The interpretation of "shall" as mandatory is reinforced by several precedents, indicating that it removes judicial discretion. At sentencing, the jury was properly instructed on the range of possible sentences. Consequently, the trial judge correctly determined he had no discretion to impose a term of years after the jury recommended life without the possibility of release, leading to the affirmation of the sentence. The appendix notes that the investigation into the murder of Hansle Andrews quickly progressed, with the FBI gathering substantial evidence and ultimately arresting Michael Ostrander on August 2, 2001. Following his arrest, agents interrogated him in a controlled environment, ensuring his comfort while they awaited the lead agent's arrival for further questioning.
At 2:40 p.m., Flint agents presented Michael with the FBI's "Advice of Rights" form, detailing his rights, including the right to remain silent, the right to an attorney, and the option for a court-appointed lawyer if he could not afford one. Michael, after reading and considering the form, signed it at approximately 2:45 p.m. The agents testified that they did not coerce him into signing and maintained a non-threatening demeanor throughout the interview, which lasted from 2:45 p.m. to 10:15 p.m., with only two breaks taken. Initially, Michael denied involvement in the murder of Hansle Andrews but admitted to drug trafficking activities connected to his brother Robert.
At around 6:00 p.m., Agent BirdSong and Detective O'Riley joined the interview. BirdSong re-Mirandized Michael at 6:29 p.m., presenting him with the rights form again, which Michael signed. BirdSong informed him of the possible penalties, including life imprisonment and the death penalty, emphasizing that cooperation could be beneficial for Michael. Following this, Michael began discussing his involvement in the murder, drawing a map of the scene, and by approximately 9:20 p.m., he provided what the agents believed was a truthful account. The interview concluded around 10:15 p.m., after which Michael was transported to the Genesee County Jail and scheduled for a magistrate hearing the following day at 2:00 p.m.
Michael was interviewed by agents who determined he was not under the influence of drugs or alcohol, allowing him breaks and refreshments, which he mostly refused. They denied his claim of being left alone for extended periods. His confession led to an arrest warrant for Robert, who was arrested on August 9, 2001. In a pretrial suppression motion, Michael argued his statements were involuntary, but after a hearing with testimonies from the agents and his attorney, the judge ruled against suppression. Throughout the trial, Michael made multiple motions to dismiss the Hobbs Act charge and, after being found guilty, sought acquittal or a new trial, all of which were denied. Robert also moved to dismiss similar charges and sought acquittal, but was denied, ultimately receiving a life sentence. Both defendants appealed, claiming insufficient evidence regarding the Hobbs Act's interstate commerce nexus and the connection between the murder and drug crime. Michael further challenged his conviction for aiding and abetting the murder and the denial of his motion to suppress his confession. The court will review the sufficiency of evidence claims de novo, emphasizing that the burden on the appellants is significant since the reviewing court does not assess witness credibility or weigh evidence. The Hobbs Act requires proof of interference with interstate commerce and a substantive criminal act, with only a de minimis effect required for business entity victims.
Appellants contend that Hansle Andrews was acting as a private individual purchasing drugs for personal use, arguing that the Government failed to demonstrate a sufficient connection to interstate commerce as required for non-business entities per United States v. Wang. In Wang, the court found that a robbery involving restaurant owners was too disconnected from their business's interstate commerce activities to support a Hobbs Act conviction, as the robbery occurred at their home, involved minimal business-related funds, and did not impact the restaurant's operations.
However, the circumstances surrounding Andrews's murder differ significantly. Andrews was a drug dealer, engaged in the business of buying and selling illegal drugs. Evidence indicated that he had previously purchased large quantities of marijuana and was anticipating a drug transaction on the day of his murder. The prosecution established that the drugs involved originated from Latin America and traveled through interstate commerce, thus satisfying the Hobbs Act criteria. Furthermore, illegal commerce is recognized under the Hobbs Act, and case law supports the notion that robberies impacting drug dealers affect interstate commerce. The robbery and murder of Andrews consequently diminished his ability to engage in drug transactions, fulfilling the Government's burden of proving a Hobbs Act violation.
Appellants contend that the evidence presented to the jury was inadequate to support convictions under 18 U.S.C. § 924(c) and (j) for murder related to a drug trafficking crime. Section 924(j) stipulates that anyone causing a death with a firearm during a drug trafficking offense can face severe penalties if the killing is classified as murder. To establish a violation of § 924(c), it must be shown that a firearm was used or carried in relation to a drug trafficking crime, with the firearm having a specific purpose concerning that crime.
Appellants argue that since the drugs involved in the alleged crime were fictitious, they were not engaged in a drug trafficking offense at the time of Andrews' murder. They reference United States v. Gibbs, where the court ruled that using a firearm in a robbery after a drug sale did not constitute a violation of § 924(c) because the firearm's use was not related to the drug transaction. However, this reasoning does not apply to the Appellants' case, as their drug trafficking offense stems from an ongoing conspiracy, not a mere fictitious sale.
Evidence showed that Robert planned and executed the robbery and murder to finance his drug business, and he lured Andrews under the pretense of a drug sale. Andrews obtained money from drug buyers to complete the transaction, and Robert admitted to others that the crime aimed to enhance his drug trafficking operations. Thus, sufficient evidence existed for a rational juror to conclude that the robbery and murder were perpetrated in connection with Robert's drug trafficking activities.
Michael asserts that although he may have committed uncharged crimes, such as being an accessory after the fact, he did not aid and abet the murder. Aiding and abetting requires an individual to associate with the criminal venture and seek its success. Evidence shows that Michael was involved in planning the crime, borrowing a car, transporting a gun and gloves, and distracting the victim to facilitate the murder. He was aware of Robert's intentions and participated in disposing of evidence, thus profiting from the crime. The court concludes that a rational juror could find that Michael aided and abetted the murder despite not pulling the trigger.
Robert argues that the statutes of conviction, 18 U.S.C. § 924(c) and (j), are unconstitutional under the Commerce Clause, claiming they criminalize intrastate activities. Although he acknowledges a previous rejection of a facial challenge to these statutes, he focuses on an as-applied challenge, asserting that the government did not demonstrate a sufficient connection to interstate commerce. The court finds that Andrews was engaged in business during the incident, thus rejecting Robert's argument that a de minimis connection applied.
Finally, Michael contends that his confession should be suppressed. The court reviews suppression motions by considering the facts in favor of the government and affirms findings unless there is a clear error. The court indicates that the denial of suppression will stand under this standard.
Michael Ostrander was arrested by FBI agents on August 2, 2001, around 2:30 p.m. and taken to the FBI office for interrogation. The interrogation, conducted by agents from Flint, Agent BirdSong, and Detective O'Riley, lasted from approximately 2:45 p.m. to 10:15 p.m. that day. He signed Miranda waivers at the start of both the 2:45 p.m. and 6:00 p.m. sessions, which were described as conversational and free from threats or promises, allowing him breaks and restroom access. Following the interrogation, Ostrander spent the night in county jail and appeared before a magistrate the next afternoon at 2:00 p.m.
In evaluating Ostrander's motion to suppress his confession, the district judge referenced 18 U.S.C. § 3501, which sets criteria for determining the voluntariness of confessions in federal prosecutions. The statute mandates that confessions are admissible if voluntarily given, and the judge must assess voluntariness outside the jury's presence. Factors influencing this assessment include the time between arrest and arraignment, the defendant's understanding of the charges, awareness of the right to remain silent, notifications of the right to counsel, and whether counsel was present during questioning. The presence or absence of these factors does not solely determine voluntariness. Additionally, confessions made within six hours of arrest are not inadmissible due to delays in presenting the defendant to a magistrate, provided they are deemed voluntary, with the jury determining their weight, except where delays are found reasonable.
Under 18 U.S.C. § 3501, all confessions are admissible if voluntary. Sub-section (a) allows for this broad interpretation, while sub-section (c) introduces a six-hour time limit for presuming voluntary confessions to be admissible, which can create redundancy with sub-section (a). Sub-section (b) complicates matters further by stating that delay is only one factor in assessing voluntariness. Courts, including the Second and Ninth Circuits, have noted interpretative challenges with this statute, often resolving contradictions by emphasizing the voluntariness of confessions.
In practice, unnecessary delay alone does not warrant the suppression of a voluntary confession, although delays exceeding six hours may be scrutinized for reasonableness. The absence of coercion during such delays is a critical factor. The government carries the burden to prove that a confession is voluntary, requiring the assessment of three elements: coercive police activity, the capacity of such coercion to overbear the defendant’s will, and that coercion was the main reason for the confession. Relevant factors for determining whether a defendant's will was overborne include age, intelligence, understanding of rights, interrogation length, and the use of physical punishments.
In a suppression hearing involving Michael, the judge found in favor of the FBI agents' testimony, concluding that Michael was not coerced and understood his rights and the gravity of the situation. The judge determined that Michael was adequately informed about his rights, did not experience threats or false promises, and engaged in the interrogation process intelligently.
Michael confessed to the crime shortly after being questioned by law enforcement, beginning his statements at approximately 6:00 p.m. and providing a formal confession around 9:20 p.m., less than seven hours post-arrest. Although Miranda waivers alone do not definitively indicate the voluntariness of a confession, the court noted that Michael was not intimidated or physically abused during questioning, understood his rights, and initiated discussion about the crime within the six-hour safe harbor period. His confession concluded only forty minutes outside this grace period. Consequently, the court found that the valid Miranda waivers effectively waived the need for a prompt judicial warning of his constitutional rights. The district judge's decision to deny the suppression motion was upheld. The court affirmed the convictions of Robert and Michael under 18 U.S.C. 1951(a) and 924(c) and (j), determining there were no constitutional defects in the application of these statutes to Robert, nor in the denial of Michael's motion to suppress his confession.
