US v. Swan

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and David J. Barron, Appellate Judge. Published. [14-1672]

Case: 14-1672

Document: 00117082841

Page: 1

Date Filed: 11/21/2016

Entry ID: 6049152

United States Court of Appeals
For the First Circuit
No. 14-1672
UNITED STATES OF AMERICA,
Appellee,
v.
CAROLE SWAN,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.

Darla J. Mondou, with whom Mondou Law Office was on brief,
for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.

November 21, 2016

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HOWARD, Chief Judge.

Date Filed: 11/21/2016

Entry ID: 6049152

Defendant-Appellant Carole Swan,

former selectperson for the Town of Chelsea, Maine, appeals her
convictions for Hobbs Act extortion, 18 U.S.C. § 1951(a), tax
fraud, 26 U.S.C. § 7206(1), and making false statements to obtain
federal worker's compensation, 18 U.S.C. § 1920. The sole issue
raised on appeal is the district court's denial of a motion to
suppress incriminating statements made during Swan's interview
with two sheriff's deputies.

Swan argues that suppression was

required because her statements were obtained through a custodial
interrogation without the benefit of a Miranda warning.

See

Miranda v. Arizona, 384 U.S. 436 (1966). Alternatively, she claims
that her incriminating statements were not made voluntarily.
Blackburn v. Alabama, 361 U.S. 199 (1960).

See

We affirm.

I.
The citizens of Chelsea, Maine (the "Town"), elected
Swan to serve as a selectperson, and she held that position for
nineteen years.

During the course of her tenure, however, Swan

came under investigation for allegedly using her public office to
profit at the Town's expense.

In early 2011, a deputy from the

Kennebec County Sheriff's Office ("KCSO") met with Frank Monroe,
a

local

businessman.

Monroe

told

the

deputy

that

Swan

had

instructed him to over-bill the Town for sand delivery and pay her
a $10,000 kickback.

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After receiving this information, the KCSO set up a sting
operation.

Under the direction of the sheriff's office, Monroe

submitted an inflated bill to the Town for the amount indicated by
Swan.

The invoice was subsequently approved and a check to Monroe

was issued.

On February 3, 2011, Swan collected the check from

the Town and instructed Monroe to pick it up from the mailbox
located at the end of her driveway.

Monroe picked up the check,

while being watched by two KCSO deputies, Lieutenant Ryan Reardon
and Detective David Bucknam.

Reardon and Bucknam then gave Monroe

a bag of money, with directions to deliver it to Swan.
Swan and gave her the kickback.

Monroe met

After accepting the funds, Swan

drove to the parking lot of a nearby laundromat.

The deputies

followed Swan and parked behind her.
As Swan made her way towards the laundromat, the deputies
stepped

out

of

their

vehicle

and

approached

her.

Reardon,

displaying his badge, called out "Carole," and told her, "I want
my money back."

Swan responded that Monroe owed her money.

Reardon reiterated that he wanted the money back.

Swan returned

to her vehicle, retrieved the bag of money, and handed it to
Reardon.

She asked whether she was in trouble.

The deputies

suggested that they discuss the issue at the sheriff's office,
rather than in the parking lot.

Swan assented and — accompanied

by Bucknam — drove herself to the station.

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At some point during

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the encounter in the parking lot, Bucknam came into possession of
Swan's phone.
At the sheriff's office, Swan met with Reardon and
Bucknam in an interview room.

The deputies assured Swan that she

was "not under arrest," that she was free to leave "[a]t any
point," and that it was "fine" if she did not "want to have [a]
conversation" with them.

Despite these assurances, Swan stayed

and spoke with the deputies.

The deputies initially maintained

possession of Swan's cellphone.

When Swan asked whether she could

have the phone back, Bucknam told her that he would return it soon,
explaining that he was only keeping the phone so that Swan would
not get distracted.

Shortly thereafter, Swan's phone rang and she

reached for it, saying that it was her husband.

Bucknam told Swan

that he was "just gonna to hit the thing" and send the call "to
voicemail."

Swan responded, "All right."

Over the course of her hour-and-a-half conversation with
deputies, Swan made numerous incriminating statements, including
an

admission

kickbacks.

that

she

had

received

approximately

$25,000

in

Towards the end of the interview, Swan told the

deputies that she needed to call her husband.

The officers

returned her phone, offered to let her step outside to make the
call, and, ultimately — when Swan opted to stay put — left the
room.

After speaking with her husband, Swan told the officers

that they could come back in and resume the conversation.

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She

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retained her phone for the rest of the interview and, when it
ended, thanked the officers.
A

federal

grand

jury

subsequently

indicted

Swan

on

multiple counts of Hobbs Act extortion, as well as tax fraud and
making false statements to obtain federal worker's compensation.
The district court severed the charges, allowing Swan to receive
two separate jury trials:

one for extortion and a second for the

remaining counts.
Before trial, Swan moved to suppress the statements that
she had made at the sheriff's office.

Following an evidentiary

hearing, a magistrate judge recommended denying Swan's motion,
concluding

that

she

had

not

been

subjected

to

interrogation and that her confession was voluntary.

a

custodial

The district

court agreed and denied the motion to suppress.
Ultimately, Swan was convicted of three counts of Hobbs
Act extortion, five counts of tax fraud, and two counts of making
false statements to obtain federal worker's compensation.

This

timely appeal followed.
II.
When considering the denial of a motion to suppress, "we
review the district court's factual findings for clear error and
its legal conclusions de novo."
F.3d 25, 27 (1st Cir. 2006).

United States v. Almeida, 434
Factual findings "are clearly

erroneous only when . . . the reviewing court . . . is left with

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the

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definite

committed."

and

firm

Page: 6

conviction

Date Filed: 11/21/2016

that

a

mistake

Entry ID: 6049152

has

been

United States v. McLaughlin, 957 F.2d 12, 17 (1st

Cir. 1992) (citation omitted).

Additionally, we "may affirm . . .

suppression rulings on any basis apparent in the record."

United

States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014).
A.
The police are required to provide a Miranda warning
before subjecting a suspect to custodial interrogation.
States v. Davis, 773 F.3d 334, 338 (1st Cir. 2014).

United

Accordingly,

the need for a Miranda warning "turns on whether a suspect is in
custody."

United States v. Hughes, 640 F.3d 428, 435 (1st Cir.

2011). In this context, "'custody' is a term of art that specifies
circumstances that are thought generally to present a serious
danger of coercion."
(2012).

The

relevant

Howes v. Fields, 132 S. Ct. 1181, 1189
inquiry

is

"whether,

in

light

of

the

objective circumstances of the interrogation, a reasonable person
[would] have felt he or she was not at liberty to terminate the
interrogation and leave."
original).

Id. (citations omitted) (alteration in

We have previously identified a number of factors

relevant to this determination, including "whether the suspect was
questioned in familiar or at least neutral surroundings, the number
of law enforcement officers present at the scene, the degree of
physical restraint placed upon the suspect, and the duration and

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character of the interrogation."

Date Filed: 11/21/2016

Entry ID: 6049152

United States v. Masse, 816 F.2d

805, 809 (1st Cir. 1987) (citation omitted).
Here, Swan contends that she was in custody during her
initial encounter with Reardon and Bucknam in the parking lot
because, among other things, the deputies effectively trapped her
in a relatively tight space, insisted on speaking with her at the
sheriff's

office,

location.

The

and

accompanied

magistrate

undermine Swan's argument.
deputies

merely

suggested

sheriff's office.

judge's

her

on

factual

the

drive

to

findings,

that

however,

The magistrate determined that the
that

Swan

speak

with

them

at

the

It similarly found that Swan was not ordered to

ride with Bucknam.

Rather, this too was merely a suggestion to

which Swan agreed.

Swan's voluntary decision to meet at the

stationhouse strongly suggests that she was not "in custody" for
the purposes of Miranda.
(1st

Cir.

1984)

(Breyer,

See McCown v. Callahan, 726 F.2d 1, 6
J.)

(finding

interaction

with

law

enforcement non-custodial because the "defendants had come to the
station voluntarily," "were told that they were not under arrest,"
and "left the station undisturbed").
In any event, although we doubt that the district court's
factual findings were clearly erroneous, it is unnecessary for us
to decide whether the encounter in the parking lot was custodial.
This is because, in conducting the Miranda analysis, we focus on
the time that the relevant statements were made.

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For example, in

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United

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States

475

v.

McCarty,

Date Filed: 11/21/2016

F.3d

39

(1st

Cir.

Entry ID: 6049152

2007),

we

considered whether to suppress unwarned statements by a defendant
who had been handcuffed only minutes beforehand.

Although we

observed that the defendant undoubtedly had been "in custody" while
restrained, we held that the situation became non-custodial by the
time that the questioning began.

Id. at 45-46.

This was because

the officers had taken off the defendant's handcuffs and "explained
. . . that he was not under arrest, that he was free to leave at
any time, and that he did not have to answer any questions."
at 46.

Id.

Accordingly, there was no need to administer a Miranda

warning.1
So too here.

Even assuming that the confrontation in

the parking lot was custodial, Swan was not entitled to a Miranda
warning unless she remained in custody at the stationhouse when
she made the statements now at issue.
the

circumstances,

we

conclude

that

Based on the totality of
the

interview

at

the

stationhouse was non-custodial.

1

Other circuits have applied a similar analysis. See United
States v. Gordon, 294 F. App'x 579, 584 (11th Cir. 2008) (per
curiam) (unpublished) (holding that the defendant's telephone
conversation with an agent after his arrest and release was not
subject to Miranda requirements because the defendant "was not in
custody at the time he made the statements at issue"); United
States v. Wallace, 323 F.3d 1109, 1113 (8th Cir. 2003) (explaining
that interrogation was non-custodial despite the fact that law
enforcement "corralled the [defendant] at the onset of the search"
because the "main focus must be on the individual's restraint
during the interview" (emphasis in original)).
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We begin by emphasizing that, as in McCarty, the deputies
prefaced their questioning by telling Swan that she was "not under
arrest," that she was free to leave "[a]t any point," and that it
was "fine" if she did not "want to have [a] conversation" with
them.

These unambiguous statements would have led a reasonable

person in Swan's position to understand that she was not "in
custody," notwithstanding what had transpired in the parking lot.
See McCarty, 475 F.3d at 45-46; United States v. Infante, 701 F.3d
386, 398 (1st Cir. 2012) (holding that the defendant was not in
custody where the interviewing officer "informed [him] during each
interview that he was not under arrest or in custody and that he
did not have to speak with the officers"); United States v.
Ellison, 632 F.3d 727, 728 (1st Cir. 2010) (Souter, J.) (concluding
that questioning did not constitute custodial interrogation where
an officer informed the suspect that "he was not under arrest
. . . , did not have to answer any questions, and was free to end
the interview at any time").
Other evidence that the questioning was a custodial
interrogation is also lacking.

Turning to the relevant factors,

we first consider the location of the interview.

Swan met with

the deputies at the sheriff's office behind closed doors. However,
the deputies made it clear to Swan that she was free to leave and
that the door was closed only for the sake of privacy.

Without

more, the mere fact that the questioning took place at the station

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does not render it custodial.

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See, e.g., United States v. Quinn,

815 F.2d 153, 160 (1st Cir. 1987) ("Even when questioning occurs
in the stationhouse, a suspect need not be given Miranda warnings
if he went there voluntarily and there was no such restriction on
his freedom as to render him in 'custody.'").
Next, "[t]he number of officers present . . . was not
overwhelming, lending support to a finding that the questioning
was non-custodial." Infante, 701 F.3d at 397. Reardon and Bucknam
were the only law enforcement officers involved in the interview.
We have previously declined to find that a defendant was in custody
even when confronted by as many as five police officers.

See

Quinn, 815 F.2d at 157; see also Infante, 701 F.3d at 397-98
(holding that presence of two officers, joined briefly by two
others, was not overwhelming).

We also note that the deputies

never drew their weapons at any point during their interactions
with Swan.

See Hughes, 640 F.3d at 436 (finding interrogation

non-custodial

when

officers

"carried

visible

weapons"

which

"remained in their holsters throughout the visit").
Similarly,

Swan

was

not

handcuffed

physically restrained at the sheriff's office.

or

otherwise

See id. ("[W]e

think it significant that no meaningful physical restraint was
applied to the defendant . . . . For aught that appears, no officer
made physical contact with him." (citations omitted)).
suggests that the interaction was non-custodial.

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This too

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Finally, the duration and character of the interview
reinforce the conclusion that Swan was not in custody.

Swan spent

approximately ninety minutes at the sheriff's office.
held

that

encounters

custodial.

of

similar

length

are

not

We have

necessarily

See, e.g., id. at 437 ("The relatively short duration

of the interview, which lasted roughly ninety minutes . . . [is]
also consistent with the finding that the interview was not
custodial.").

Additionally, as the magistrate judge noted, the

conversation was characterized by "a generally even-tone back and
forth."

See, e.g., United States v. Jones, 187 F.3d 210, 218 (1st

Cir. 1999) (holding that interview was non-custodial where the
officer "used a normal tone of voice" during questioning).
Swan, however, points out that the officers were in
possession of her cellphone throughout much of the interview and
claims that this fact renders the interaction custodial.
do not find this fact to be determinative.

But we

Bucknam explained to

Swan that the deputies would return her phone, but were holding it
during

the

distracted.

interview

because

they

did

not

want

her

to

get

It is true that the deputies sent a call from Swan's

husband to voicemail, but they did so only with her permission.
And when Swan later told the deputies that she needed to call her
husband, they not only allowed her to make the call but also left
the room.
officers'

In light of the facts considered as a whole, the
temporary

possession

of

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Swan's

cellphone

was

not

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sufficient to trigger Miranda.
otherwise.

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Entry ID: 6049152

Nor does the precedent suggest

See United States v. Campbell, 741 F.3d 251, 267 (1st

Cir. 2013) (finding questioning to be non-custodial despite the
fact that "the defendants may have temporarily been unable to use
their cellular phones"); United States v. Salinas, 543 F. App'x
458, 464-65 (5th Cir. 2013) (unpublished) (referring to retention
of suspect's phones as "some evidence that the encounter was
custodial" but ultimately affirming finding that the defendant was
not in custody).
In

sum,

after

considering

the

relevant

factors,

we

conclude that a reasonable person in Swan's position would have
felt able to terminate the interview and leave the station.
Accordingly, Swan was not subjected to a custodial interrogation,
and it was unnecessary to provide her with Miranda warnings.2
B.
Swan's

remaining

involuntary lacks merit.

claim

that

her

confession

was

The previously discussed facts establish

2

Swan suggests, for the first time on appeal, that the
deputies "seized" the bag of money and cellphone within the meaning
of the Fourth Amendment.
She argues that such a seizure could
only be justified as a "search incident to arrest." Accordingly,
she must have been arrested and, thus, in custody for purposes of
Miranda.
This contention is without merit.
Undoubtedly, some
seizures are conducted incident to an arrest. But there are also
a number of other situations in which warrantless seizures are
permissible.
Thus, even if a seizure had taken place (and we
expressly decline to reach this issue), it would not necessarily
follow that Swan was in custody.
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that the government's conduct did not overbear Swan's will.

In

short, "[t]he tone of the interview was cordial, its length was
reasonable, and the defendant was not deprived of any essentials,"
all of which indicates "a lack of coercion . . . [and] support[s]
the district court's finding of voluntariness."

Hughes, 640 F.3d

at 438.
Swan

primarily

argues

that

her

statements

were

involuntary because the deputies promised her leniency in exchange
for her cooperation.

This contention need not detain us long, as

"[i]t is well settled in the First Circuit that an officer does
not impermissibly overbear a defendant's will by promising to bring
the defendant's cooperation to the prosecutor's attention or by
suggesting that cooperation may lead to more favorable treatment."
United States v. Jacques, 744 F.3d 804, 809-10 (1st Cir. 2014).
III.
For the foregoing reasons, we AFFIRM Swan's convictions.

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