IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-20665 _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALAN WHITELAW,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas, Houston USDC No. H-98-CR-450-1 _________________________________________________________________ December 21, 2000 Before JOLLY and DAVIS, Circuit Judges, and RESTANI, Judge.*

PER CURIAM**:

Alan Whitelaw appeals his conviction and sentence for various

federal criminal offenses related to a check counterfeiting scheme.

At a pretrial hearing, Whitelaw urged the district court to

suppress 84 incriminating tape recordings of conversations between

Whitelaw and John Irwin, a government informant. Whitelaw contends

that the government’s actions violated his rights under the Fifth

and Sixth Amendments. When the district court denied his motion to

* Judge, U.S. Court of International Trade, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. suppress, Whitelaw entered a conditional guilty plea. Whitelaw

also appeals the length of his sentence, arguing that the district

court miscalculated the amount of loss attributable to him and that

the amount of loss was an essential element of the offense and

should have been proved beyond a reasonable doubt. Finding no

error by the district court, we affirm the conviction and sentence.

I

Alan Whitelaw was involved in a check counterfeiting

operation. According to the district court, Whitelaw typically

would open a bank account using an alias, then deposit stolen or

forged checks into the new account, and withdraw funds from the new

account before the theft was detected. Whitelaw’s activities led

to both state and federal criminal charges.

Whitelaw was indicted on state charges in June 1998. The

indictment alleged that between October 6, 1996 and November 14,

1996, Whitelaw committed the offense of theft of money in an amount

exceeding $200,000. He was tried and convicted on July 16, 1998,

and was sentenced to 60 years in the Texas Department of Criminal

Justice.

While Whitelaw was in custody on the state charges, he

arranged additional fraudulent transactions. From July 2, 1998 to

September 5, 1998, Whitelaw made numerous telephone calls to John

Irwin, who had been involved with Whitelaw’s other schemes.

2 Unknown to Whitelaw, Irwin had become a government informant1 and

had agreed to record his telephone conversations with Whitelaw.

Because the Harris County, Texas prison does not accept incoming

calls to prisoners, all conversations were initiated by Whitelaw.

Whitelaw was indicted by a federal grand jury in November

1998. The federal indictment alleged bank fraud, possession of

counterfeit securities, and conspiracy. Whitelaw filed a motion to

suppress the recorded conversations on the grounds that the

government had violated his Sixth Amendment right to counsel, his

Fifth Amendment privilege against self-incrimination, and his Fifth

Amendment right to due process. After a suppression hearing, the

district court denied his motion. Whitelaw then entered a

conditional plea of guilty to one count of aiding and abetting bank

fraud. In return, the government agreed to dismiss the remaining

counts. The plea agreement expressly allows Whitelaw to appeal the

court’s denial of the motion to suppress as well as any sentencing

issues.

The Pre-Sentencing Report determined that the guideline range

of imprisonment was 46 to 57 months. This determination was based,

in part, on the assumption that Whitelaw’s criminal history

category was “III” and that Whitelaw was accountable for an

intended loss of $1,188,618. Whitelaw filed objections to the PSR.

At sentencing, the district court sustained Whitelaw’s objection to

1 Irwin entered into agreements with agents from both federal and state governments.

3 the criminal history category and reduced it to “I”. However, the

court denied Whitelaw’s challenge to the calculation of

attributable intended loss. With a revised guideline range of 37

to 46 months, the district court sentenced Whitelaw to 46 months’

imprisonment, to run concurrently with his state sentence.

Whitelaw filed a timely notice of appeal, challenging the

district court’s decisions as to the motion to suppress and to the

intended loss calculation during sentencing. Whitelaw has also

raised an objection to his sentence based upon the Supreme Court’s

recent decision in Apprendi v. New Jersey. According to Whitelaw,

the amount of loss was an essential element of the offense and

should have been proved beyond a reasonable doubt.

II

We turn now to Whitelaw’s motion to suppress the recorded

conversations. In reviewing a district court’s ruling on a motion

to suppress, we review questions of law de novo and accept the

court’s findings of fact unless they are clearly erroneous. See

United States v. Castro,

(5th Cir. 1999) (en

banc); United States v. Muniz-Melchor,

(5th

Cir. 1990).

Whitelaw presents three arguments for suppressing his recorded

conversations with Irwin, the government informant. Whitelaw

argues that the government’s act of recording these conversations

violates his Sixth Amendment right to assistance of counsel, his

4 Fifth Amendment privilege against self-incrimination, and his Fifth

Amendment right to due process. We address each argument in turn.

A

(1)

The Sixth Amendment right to counsel attaches only when the

government initiates adversarial criminal proceedings. United

States v. Laury,

(5th Cir. 1995). Once

proceedings have been initiated, law enforcement officials may not

confront the accused or elicit incriminating information regarding

the charged offenses without counsel being present. Maine v.

Moulton,

(1985). It must be emphasized, however,

that the Sixth Amendment is offense-specific; that is, the right to

counsel applies only “to the specific offense with which the

suspect has been charged.” United States v. Carpenter,

(5th Cir. 1992). Consequently, if a criminal defendant

makes incriminating statements pertaining to some other offense to

which the Sixth Amendment has not yet attached, then those

statements are admissible at a trial for that offense. Moulton,

& n.16 (“[T]o exclude evidence pertaining to

charges as to which the Sixth Amendment right to counsel had not

attached at the time the evidence was obtained, simply because

other charges were pending at that time, would unnecessarily

frustrate the public’s interest in the investigation of criminal

activities.”).

5 This circuit has carved out a narrow exception to the general

rule: “If the charged and uncharged offenses are ‘so inextricably

intertwined’ or ‘extremely closely related,’ then the Sixth

Amendment . . . prohibits interrogation about the uncharged

offense.” Carpenter,

; see also United States v.

Cooper,

(5th Cir. 1991). To determine whether

criminal offenses are sufficiently intertwined, this circuit

focuses on the specific facts underlying the charged and uncharged

offenses. As this court recently explained, the relevant question

is “whether the conduct leading to each offense is the same.”

United States v. Walker,

(5th Cir. 1998)

(holding that firearms possession and subornation of perjury are

not inextricably intertwined charges because they were “distinctly

separate offenses . . . [that] did not occur within a close

temporal proximity”). The rule in this circuit is accurately

stated as follows: The right to counsel carries over “only where

the new charge arises from the same acts and factual predicates on

which the pending charges were based. In determining whether the

same acts and factual predicates underlie both the pending and the

new charges, courts have looked for similarities of time, place,

person and conduct.” United States v. Arnold,

(3d

Cir. 1997) (citing Carpenter,

); see also Laury,

; United States v. Williams,

(5th Cir. 1993); Cooper,

.

6 If a court finds that two charges are inextricably intertwined

and, consequently, that the invocation of the Sixth Amendment right

on the pending charge is sufficient to invoke the right on the

subsequent charge, the court must then determine whether the

government’s actions violated the defendant’s right to counsel. It

is well established that the government may not circumvent the

Sixth Amendment right to counsel by having an informant

deliberately elicit and record incriminating conversations with a

suspect. See Moulton,

; United States v. Henry,

(1980); Massiah v. United States,

(1964).

(2)

In the present case, federal proceedings had not been

initiated against Whitelaw at the time Irwin recorded their

telephone conversations. Therefore, Whitelaw’s Sixth Amendment

right to counsel had not yet attached to the federal charges unless

those federal charges were “inextricably intertwined” with or

“extremely closely related” to the pending state charges.

The district court concluded that the federal and state

charges were not so intertwined or closely related as to invoke the

right to counsel for the federal charges. The court reasoned as

follows:

While Whitelaw may have employed the same method or modus operandi for defrauding the federal victims as he did when he defrauded the state victims, he has not been charged in the federal indictment for the same criminal conduct alleged and proven at the state trial. As is

7 apparent from the state and federal indictments . . . , the criminal conduct charged in the federal indictment was not charged or prosecuted in any of Whitelaw’s previous state indictments, particularly the indictment which ultimately led to his conviction. The conspiracy charge in the federal indictment does not rely on or even mention any of the criminal events covered by Whitelaw’s state trial as acts in furtherance of the criminal conspiracy. The bank fraud and possession of counterfeit securities charges allege difference victims, events, dates, and amounts stolen than those covered in Whitelaw’s state case.

Our review of the law confirms that the district court clearly

understood and applied the proper standard by focusing on the

specific underlying conduct, the time frame for the criminal

offenses, and the identity of the perpetrators and victims. Our

review of the record also confirms that the factual bases of the

district court’s conclusion are sound.

Whitelaw does not argue that the district court erred in

finding that the charges involved different acts, done at different

times, in different places, with different perpetrators and

victims, and with different amounts stolen. Rather, he suggests

obliquely that the district court misconstrued the law. The

relevant issue, Whitelaw insists, is the “type of conduct”

underlying the charges. Viewed in this light, the acts underlying

the federal charges are part of a larger “ongoing scheme” of

fraudulent activities. He argues that the

alleged conduct is the same: steal a valid check or account number, counterfeit a check, open an account, deposit the counterfeit or stolen check, place the proceeds into other accounts . . . , then proceed back to step one. This is the scheme or relevant conduct in both the state and federal case.

8 Whitelaw’s argument is based on a fundamental misreading of one

sentence in the Walker opinion.

As we explained above, the court in Walker insisted that the

correct question in this type of case is “whether the conduct

leading to each offense is the same.” Walker,

.

The court then observed in passing that subornation of perjury and

possession of a firearm are “two distinct types of conduct, the one

not leading necessarily to the other.”

We do not question

Walker’s premise that two criminal charges are less likely to be

“inextricably intertwined” if they involve different “types of

conduct.” But nothing in the Walker court’s opinion suggests that

the general type of conduct involved (such as check counterfeiting,

for example) should be the primary factor in the analysis. To the

contrary, the Walker opinion places itself squarely within the

framework established in earlier cases. The Walker court,

therefore, relies heavily on two other considerations: The two

criminal charges were “distinctly separate offenses,” which means

that they involved different underlying facts; and the two offenses

“did not occur in a close temporal proximity.”

At most,

Walker throws additional light upon one factor--the general type of

activity involved--but it surely cannot be read to supersede or

overrule prior decisions addressing this issue of whether criminal

offenses are “inextricably intertwined” for the purposes of the

Sixth Amendment right to counsel.

(4)

9 For the reasons outlined above, we reject Whitelaw’s

contentions and adopt the reasoning of the district court. As the

district court explained, the criminal charges are not

“inextricably intertwined” because the specific conduct, victims,

and time frame are all very different. It is true, of course, that

both crimes involve the same type of fraudulent conduct (a check-

counterfeiting scheme). While the type of conduct is relevant to

the analysis, the fact that the criminal activities are similar in

nature cannot, by itself, establish that the charges are

intertwined.2

B

As an alternative ground for suppressing the tape-recorded

statements, Whitelaw argues that the government’s conduct violated

his Fifth Amendment privilege against self-incrimination under

Miranda v. Arizona,

(1966).

The Supreme Court held in Illinois v. Perkins,

(1990), that “Miranda warnings are not required when the

suspect is unaware that he is speaking to a law enforcement officer

and gives a voluntary statement.” The Court explained that

“[c]onversations between suspects and undercover agents do not

implicate the concerns underlying Miranda. The essential

2 Because we hold that Whitelaw’s right to counsel had not attached to the federal charges, we do not reach the other question addressed by the district court, namely, whether Irwin deliberately elicited Whitelaw’s incriminating statments and thereby caused the government to violate the Sixth Amendment right to counsel.

10 ingredients of a ‘police-dominated atmosphere’ and compulsion are

not present” in such cases.

.

Whitelaw has not presented any evidence suggesting that his

conversations with Irwin were coerced. To the contrary, Whitelaw

spoke voluntarily with Irwin and, in fact, initiated every

telephone conversation. For these reasons, Whitelaw’s Miranda

argument fails.

C

As a third ground for suppressing the tape-recorded

conversations, Whitelaw argues that his Fifth Amendment right to

due process has been violated.

This question was not addressed by the district court. In his

briefs, Whitelaw’s only legal authority is Justice Brennan’s

concurring opinion in Illinois v. Perkins,

. In

Justice Brennan’s view, when the government obtains incriminating

information from suspects in custody, the government’s actions are

arguably incompatible with a system “‘that presumes innocence and

assured that a conviction will not be secured by inquisitorial

means.’”

(Brennan, J., concurring in the judgment)

(quoting Miller v. Fenton,

(1985)). Whatever the

merits of Justice Brennan’s argument, it is clear that a single-

Justice opinion is not binding precedent. See, e.g., Hopwood v.

State of Texas,

, 944 (5th Cir. 1996). Moreover, cases

such as Miller involve “forms of physical and psychological

torture,” Miller,

, which plainly are not present in

11 Whitelaw’s case. Applying the law to the facts of this case, we

conclude that Whitelaw’s due process argument is without merit.

III

Whitelaw also appeals his sentence of 46 months’ imprisonment.

He contends that the district court erred in its loss calculation

under the Sentencing Guidelines and that his sentence was imposed

in violation of Apprendi v. New Jersey,

(2000).

A

Whitelaw argues that the district court erred in its

calculation of the loss attributable to his conduct under U.S.

Sentencing Guidelines Manual § 2F1.1(b). He asserts that the loss

from his state offenses should not be included in the loss

calculation because the district court found that his state and

federal offenses were not “inextricably intertwined” for Sixth

Amendment purposes.

The sentencing court’s calculation of loss is a factual

finding and is reviewed for clear error. The court’s methodology

by which losses are determined, however, involves an application of

the Sentencing Guidelines and is reviewed de novo. See United

States v. Saacks,

(5th Cir. 1997).

Under § 2F.1.1(b), the offense level of a defendant convicted

of crimes of fraud or deceit is increased in accordance with the

amount by which the loss attributable to the defendant exceeds

$2,000. If the loss is between $800,000 and $1.5 million, the

guidelines warrant an 11 level increase in the offense level.

12 U.S.S.G. § 2F.1.1(b)(1)(L) (2000). Under the guidelines, “if an

intended loss that the defendant was attempting to inflict can be

determined, this figure will be used if it is greater than the

actual loss.” U.S.S.G. § 2F1.1, comment n.8.

In the context of “a criminal plan, scheme, endeavor, or

enterprise undertaken by the defendant in concert with others,”

relevant conduct for sentencing includes “all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B).

A district court’s finding that conduct was within the scope of

jointly undertaken criminal activity is a finding of fact and is

reviewed for clear error. See United States v. Smith,

(5th Cir. 1994). The district court held that Whitelaw was

accountable for $1,188,618.65 in intended and actual losses, that

all such losses resulted from jointly undertaken criminal activity,

and that the conduct of Whitelaw’s co-conspirators was reasonably

foreseeable.

Whitelaw’s argument that the district court erred in

calculating the loss attributable to him is without merit. First,

a review of the PSR reveals that the loss attributable to

Whitelaw’s state offenses was not included in the total loss

calculation. See PSR ¶ 22 (noting that Whitelaw had already been

sanctioned for the state offenses). Thus, it is evident that the

PSR’s calculated loss did not include the 1996 counterfeit checks

relied upon in the state court prosecutions. The sentencing court

13 fully recognized this, noting that Whitelaw “is responsible for all

of the checks listed on Attachment A, except the 1996 counterfeit

State of Texas checks.”

Moreover, even if the PSR’s $1,188,618.65 calculated loss does

include the $261,775 loss from the state offenses, Whitelaw is

still accountable for $926,843.65 in losses. Under

§ 2F1.1(b)(1)(L), he would still be subject to the same 11-level

offense level increase. Therefore, any error here is harmless in

that “the district court would have imposed the same sentence”

absent the error. United States v. Kay,

(5th Cir.

1996) (finding remand unnecessary where sentencing error was found

to be harmless by reviewing court).

Whitelaw’s primary argument is that the district court

contradicted itself by finding that (1) his state and federal

offenses were not inextricably intertwined, and (2) the loss from

both the state and federal offenses was attributable to him as

relevant conduct. Because, as noted above, the loss from his state

offenses was not attributed to him in the calculation of his

offense level, this argument is without merit.

B

Whitelaw further asserts that, under Apprendi v. New Jersey,

(2000), the amount of loss attributable to him was

an essential element of his offense and therefore should have been

submitted to a jury and established beyond a reasonable doubt.

Under Apprendi, “any fact [other than a prior conviction] that

14 increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi,

(emphasis added). The

prescribed statutory maximum sentence for bank fraud of $1 million

is 30 years’ imprisonment.

. The guideline

imprisonment range for Whitelaw’s offense, given the loss

attributable to him and his criminal history, was 37 to 46 months

imprisonment, and the guideline fine range was $7,500 to $1

million. See PSR ¶ 120. Because the amount of loss did not

increase the penalty for the offense beyond the applicable

statutory maximum, Apprendi is inapplicable to Whitelaw’s appeal.

IV

For the reasons set forth above, the district court did not

err in denying Whitelaw’s motion to suppress nor in sentencing him

to 46 months’ imprisonment. Whitelaw’s conviction and sentence are

therefore

A F F I R M E D.

15