from the United States District Court for the Eastern
District of Oklahoma (D.C. No. 6:14-CR-00085-RAW-1)
A. Ridenour, Assistant Federal Public Defender (Barry L.
Derryberry, Research and Writing Specialist, and Julia L.
OP'Connell, Federal Public Defender, with him on the
briefs), Office of the Federal Public Defender, Northern
& Eastern Districts of Oklahoma, Tulsa, Oklahoma, for
A. Epperley, Assistant United States Attorney (Mark F. Green,
United States Attorney, and Gregory Dean Burris, Assistant
United States Attorney, with her on the brief), Office of the
United States Attorney, Muskogee, Oklahoma, for
BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.
PHILLIPS, Circuit Judge.
grand jury is a constitutionally mandated body that both
protects the rights of defendants and provides a powerful
investigative tool for federal law enforcement. A key part of
the grand jury's investigative power is its ability to
compel testimony, subject to witnesses' Fifth Amendment
rights against self-incrimination. Grand-jury witnesses have
no right to Miranda warnings, nor do they have an
absolute right to remain silent-even witnesses implicated in
the criminal activities that the grand jury is investigating.
United States v. Mandujano, 425 U.S. 564, 579-80
(1976) (plurality opinion). Here, the Defendant argues that
Miranda should apply to protect grand-jury targets
who are confined on unrelated criminal charges. From this,
the Defendant argues that the district court erred at trial
by not suppressing his grand-jury testimony, because the
government failed to provide him Miranda warnings
before that testimony. We reject this argument. We hold that
the rule rendering Miranda inapplicable to
grand-jury witnesses extends to persons who are incarcerated
for unrelated reasons when they are subpoenaed to appear
before a grand jury. We also reject the Defendant's other
challenges to his conviction and sentence-challenges based on
the Sixth Amendment right to counsel, unfairly prejudicial
evidence, the evidentiary rule of completeness, and the
Eighth Amendment's prohibition on cruel and unusual
punishment. We affirm on all grounds.
3, 2014, an FBI agent served a grand-jury subpoena on Dakota
Lane Williston in the McCurtain County Jail in Idabel,
Oklahoma. Williston was being held in the jail on state
charges unrelated to the crime that the grand jury was
investigating. The FBI agent also handed Williston a target
letter from the United States Attorney's Office and a
blank financial affidavit. The target letter had a heading of
"Advice of Rights" and informed Williston that he
was the target of a federal grand jury murder investigation.
R. vol. 1 at 109-10. The letter also advised Williston that
he could "refuse to answer any question if a truthful
answer to the question would tend to incriminate you";
that anything Williston did or said "may be used against
you by the Grand Jury or in a subsequent legal
proceeding"; that Williston could step outside the
grand-jury room to consult with retained counsel, if he had
any; and that if Williston had not retained counsel "and
cannot afford to hire counsel, a financial affidavit is
attached." Id. at 126. The letter stated that
the completed financial form could be returned to "the
Federal Public Defender's Office" in Muskogee,
Oklahoma. Id. The FBI agent read the target letter
verbatim to Williston and reiterated that Williston was the
target of the investigation. The government secured an Order
for Writ of Habeas Corpus Ad Testificandum for Williston and
United States Marshals transported him to the Muskogee County
Jail for his grand-jury testimony. Another FBI agent met with
Williston before his grand-jury appearance to ask if
Williston would be testifying-to avoid bringing Williston in
front of the grand jury for the sole purpose of hearing him
invoke his Fifth Amendment rights. Williston said that he
would be testifying.
11, 2014, Williston appeared before the grand jury. Before
the federal prosecutor began asking Williston any questions,
he reviewed on the record Williston's rights with him.
First, the prosecutor confirmed that Williston had received
and understood the target letter. Then he reviewed the target
letter with Williston, informing him that the grand jury was
investigating a murder in Indian Country. He advised
Williston that he could "refuse to answer any question
if the truthful answer to the question would tend to
incriminate you." Supp. R. vol. 5 at 19. He told
Williston that anything Williston said could be used against
him "by the grand jury or in a subsequent legal
proceeding." Id. The prosecutor then said that
if Williston had retained counsel, he could consult with
counsel outside the grand-jury room. He added that:
I would also inform you, as I see that you're in custody
on some charges, that you have the right to counsel at no
expense to you. We can have that appointed to you at no
expense should you feel like you want counsel at any time.
And you have the right to remain silent in that regard as
affirmed that he understood all that information. The
prosecutor then moved on to his substantive questions,
starting out by asking if what he had heard was true-that
Williston wanted to tell the grand jury his story? Williston
answered "Yes, sir." Id. at 20. The
prosecutor's belief stemmed from Williston's prior
affirmation to the second FBI agent that he planned to
testify rather than invoke his Fifth Amendment rights.
Williston then gave his account of the death of Payton
Cockrell, some of which is set out below as introduced
through an FBI agent at trial.
23, 2013, Williston was living in his grandmother's house
in Idabel, a town in southeastern Oklahoma. Earlier that
month, two persons had moved in with Williston: Brittany
Cockrell, a woman with whom Williston was personally
involved, and Brittany's two-and-a-half-year-old
daughter, Payton. Williston told the grand jury that, on the
morning of July 23, he woke up as Brittany was preparing to
go to work. When Brittany started to leave the house soon
before 10 a.m., Payton attempted to follow her mother out the
door. Williston told Brittany to leave Payton at home with
him that day, rather than take Payton to day care, so that
Brittany would have a reason to come home sooner.
Brittany had left for work, Williston told the child, who was
crying, to go lie down on her bed, which she did. Williston
went back to sleep. When he awoke again, he stripped the
sheets from his bed and from Payton's bed, took them to
the laundry room along with towels that he said Payton had
thrown up on during the night, retrieved the house's
landline phone to see if anyone had called, and then lay down
on his bed. When Williston stripped the sheets from
Payton's bed, he told the grand jury that Payton woke up
for a moment, said "nite-nite, " and went back to
sleep. R. vol. 2 at 1533.
Williston got out of bed again soon afterward, he began
preparing to take a shower and "hollered at Payton a
couple of times." Id. at 1496. When Payton
didn't respond, Williston said that he shook her a few
times to try to wake her up, but that she still didn't
respond. Williston told the grand jury that he then
"started freaking out, " "patted" Payton
on the cheek, and accidentally "busted her lip, "
causing blood to trickle across her teeth. Id. at
1497-98. Apart from a bruise on Payton's face that he
said was accidentally caused by Brittany when brushing
Payton's hair the night before, Williston said that the
busted lip was the only injury he could see on Payton.
Williston testified that he then put Payton on the floor and
ran to get his grandmother, who had entered the house soon
12:10:59 p.m., Williston called Brittany. He asked only when
Brittany would be coming home. At 12:11:48 p.m., Williston
called Brittany again and told her that he couldn't wake
up Payton. The woman that Brittany was caring for as a
home-health aid overheard the conversation and immediately
called the police. At 12:16 p.m., Williston called 911.
Emergency-services personnel arrived at 12:22 p.m. and took
Payton to the hospital, where she was pronounced dead.
Williston approached one of the responding sheriff's
deputies, whom he knew, and said, " . . . what do I do?
Tell me what to do." Id. at 510. He also told
the deputy that he had made Payton lie down, and then started
shaking and slapping her when she wouldn't wake up.
Williston told the grand jury that, from the time Brittany
left the house until he found Payton unresponsive, he was the
only one in the room with her, that he had no reason to
believe that Payton had left the room while he was asleep,
and that he didn't believe anyone had snuck into the
house and hurt Payton.
trial testimony from emergency-services personnel and other
medical witnesses painted a far more severe picture of
Payton's injuries than Williston had described.
Emergency-services personnel noticed dried blood and several
bruises on her face. At the hospital emergency room, medical
personnel observed extensive, visible injuries to
Payton's neck, head, face, chest, mid-back, and other
search of the house revealed blood containing Payton's
DNA in multiple locations in Williston's room, including
a blood spatter on the wall, as well as on towels in the
laundry room. The pathologist at the medical examiner's
office ruled Payton's death a homicide caused by blunt
force injuries to the head and torso, documenting both
serious head injuries and massive internal injuries, either
of which would have been enough to cause Payton's death
independently. Payton suffered the majority of her injuries
within a few days of her death. Payton's abdominal wall-
which encloses the intestines-was also bruised, which a
child-abuse expert attributed to especially severe trauma.
The expert also testified that her medical diagnosis of the
cause of Payton's death was severe child abuse.
December 19, 2014, six months after Williston's
testimony, the grand jury indicted Williston for Payton's
murder. Williston filed a pretrial motion to suppress his
grand-jury testimony. A magistrate judge recommended the
denial of the motion, and the district court adopted the
recommendation and denied the motion. After a seven-day
trial, during which an FBI agent read portions of the
transcript of Williston's grand-jury testimony into the
record, a jury convicted Williston of first-degree murder in
Indian Country committed during the perpetration of child
abuse, in violation of 18 U.S.C. §§ 1111, 1151, and
1153. The district court sentenced Williston to
life without parole, as mandated by 18 U.S.C. § 3559(d).
Williston now appeals, raising issues concerning his Fifth
and Sixth Amendment rights, evidentiary rulings, and
argues that the government violated his Fifth Amendment
rights by not providing him a Miranda warning before
his grand-jury testimony. Williston acknowledges that the
Supreme Court held in Mandujano that the full
warnings of Miranda v. Arizona, 384 U.S. 436
(1966)-including the warning that a defendant has an absolute
right to remain silent-required for custodial interrogation need
not be given to grand-jury witnesses, even if they are
testifying about criminal activity in which they may be
implicated. Mandujano, 425 U.S. at 579-80. Williston
distinguishes his case from Mandujano by pointing
out that he was in state custody at the time of his
grand-jury appearance. Thus, he argues, the circumstances of
his questioning made him not merely a grand-jury witness, but
a person in custody being interrogated. By his telling,
federal marshals involuntarily transported him to the grand
jury, left him handcuffed and shackled during questioning,
and subjected him to questioners able to charge him with a
crime, all while knowing that Williston, a "putative
defendant, " Appellant Br. at 23, was likely to
incriminate himself, as an 18-year old with limited education
far from his home and family.
reviewing a motion-to-suppress ruling based on the
applicability of Miranda, we review de novo the
ultimate question of whether Miranda applies.
United States v. Jones, 523 F.3d 1235, 1239 (10th
Cir. 2008). But we accept the district court's factual
findings unless they are clearly erroneous, and we view the
evidence in the ...