U.S. v. Galloway

• Decision Date: 17 January 2003
• Docket Number: No. 01-5299.,01-5299.
• Citation: 316 F.3d 624
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Glenn GALLOWAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

316 F.3d 624

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Glenn GALLOWAY, Defendant-Appellant.

No. 01-5299.

United States Court of Appeals, Sixth Circuit.

Submitted October 16, 2002.

Decided and Filed January 17, 2003.

COPYRIGHT MATERIAL OMITTED

Roy G. Romo (briefed), Houston, TX, for Appellant.

Charles P. Wisdom, Jr. (briefed), Assistant United States Attorney, Lexington, KY, David L. Bunning (briefed), Assistant United States Attorney, Covington, KY, for Appellee.

Before BOGGS, SUHRHEINRICH, and CLAY, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 634-641), delivered a separate dissenting opinion.

OPINION

SUHRHEINRICH, Circuit Judge.

Defendant-Appellant Jeffrey Glenn Galloway appeals from the judgment entered on February 27, 2001, in the United States District Court for the Eastern District of Kentucky, of conviction by jury and sentence imposed on three counts arising out of his importation and possession of ecstacy in violation of 21 U.S.C. §§ 841 and 846, and 21 U.S.C. § 952.¹

Galloway raises three issues on appeal. First, he claims the district court erred when it admitted into evidence statements made by Galloway to a United States Customs Inspector, in violation of Galloway's Fifth and Sixth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Second, Galloway claims he is entitled to a new trial because the prosecutor made improper remarks during final argument. Third, Galloway claims his counsel was ineffective because his counsel elicited testimony from Galloway's co-conspirator which tended to inculpate Galloway, since it showed that he generally promotes drug use.²

We deny Galloway's claim and affirm on all issues. First and foremost, we hold that Miranda is inapplicable because a secondary customs inspection is a routine, non-custodial detention. Second, the prosecutor's statements, although improper, do not warrant a new trial in the face of the other overwhelming evidence. Finally, ineffective assistance of counsel claims are generally not heard on direct appeal, and the record here is insufficient to permit us to hear the claim.

I. Facts

On January 19, 2000, a narcotics canine alerted on a bag at the Greater Cincinnati-Northern Kentucky International Airport in Covington, belonging to Galloway's co-defendant, Kristie Kirsch, who had arrived with Galloway on a flight from Brussels, Belgium. Once Kirsch identified the bag, customs inspectors removed both her and Galloway.

Customs inspector Jeffrey Vaughn took Defendants to a secondary inspection area, pursuant to the U.S. Customs Service's authority to search travelers under 19 U.S.C. § 1582.³ Vaughn began his inspection by informing Defendants that a canine had alerted on Kirsch's bag. At this time, Vaughn neither placed Defendants under arrest, nor read them their Miranda rights.

Vaughn began his questioning by asking Kirsch why she thought the canine had hit on her bag. She responded that it was because of "those cafes," indicating "dope smoking cafes," more commonly referred to as hash bars. As he searched Defendants' bags, Vaughn turned his questioning to Galloway, and asked him a series of questions, each revolving around the places he had been in Europe. Specifically Vaughn was trying to ascertain whether Galloway and Kirsch had been to Amsterdam, the Netherlands. In response to these questions, Galloway made several statements denying he had been to Amsterdam.

After concluding his questioning of Galloway, Vaughn asked Kirsch for her coat, which he testified felt rather heavy when he picked it up. He removed the lining and found a number of pills, later identified to be the drug ecstacy. Vaughn ceased his questioning and placed Defendants under arrest for importation and possession of an illegal substance.

On May 8, 2000, Galloway filed a motion to suppress the statements he had made to Vaughn at secondary inspection, because they were obtained without proper Miranda warnings. Basically, the statements amounted to Galloway denying he had ever been to the Netherlands, even when faced with evidence to the contrary found in his bag, such as Dutch money, merchandise bearing an Amsterdam logo, and train tickets from Brussels to Amsterdam.

The district court denied the motion on September 28, 2000, finding that Miranda warnings were not required. The judge reasoned that the secondary inspection was a routine customs inquiry, and as such, not entitled to Miranda protections under United States v. Ozuna, 170 F.3d 654 (6th Cir.1999).

Galloway proceeded to jury trial, where Galloway's false denial of traveling to Amsterdam was introduced as evidence of his guilt. Kirsch testified against him in exchange for concessions from the Government.⁴ Specifically, Kirsch testified that Galloway had hired her as a mule to carry the ecstacy from Amsterdam.⁵ Galloway's response was that Kirsch was his girlfriend and that he had no knowledge of the drugs she was carrying. The jury convicted Galloway on all three counts and he was sentenced to ninety-seven months.

Galloway filed a timely notice of appeal on February 27, 2001, the same day the judgment was imposed, and this matter is properly before this Court.

II. Galloway's Miranda Rights

We review a district court's ruling on a motion to suppress through a mixed standard of review. Findings of fact supporting the court's decision are reversed only if they are clearly erroneous. The court's final determination as to the reasonableness of the search is a question of law reviewed de novo. United States v. Harris, 255 F.3d 288, 291 (6th Cir.), cert. denied, 534 U.S. 966, 122 S.Ct. 378, 151 L.Ed.2d 288 (2001); Knox County Educ. Ass'n v. Knox County Bd. of Educ., 158 F.3d 361, 371 (6th Cir.1998). When the district court has denied the motion to suppress, we review all evidence in a light most favorable to the Government. United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993).

Galloway claims that any statements made by him to Vaughn should be suppressed because they were obtained in violation of Miranda. Miranda warnings are necessary only if the defendant is subjected to a "custodial interrogation." Miranda, 384 U.S. at 477, 86 S.Ct. 1602. Accordingly, Galloway argues that he was "in custody" when Vaughn was performing the secondary inspection.

Whether a person is in custody for Miranda purposes is determined by neither the perception of the defendant nor of the police. It is determined by the objective perception of a reasonable man in the defendant's shoes. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). The standard is perhaps best stated another way: "The test must be not what the defendant himself, as a possessor of drugs at the time of his detention, thought, but what a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes." United States v. McKethan, 247 F.Supp. 324, 328 (1965) (emphasis added); see also Coates v. United States, 413 F.2d 371, 373 (D.C.Cir.1969); United States v. Coleman, 450 F.Supp. 433, 439 (E.D.Mich.1978). We believe the standard is more accurately stated this way because a reasonable guilty person will always perceive his situation as coercive.

First, it is necessary to explain the customs procedures to which Galloway was subject. According to the U.S. Customs Service, every passenger who arrives in the United States on an international flight, whether he is a United States citizen, alien, or foreign national, is subject to cursory screening (primary inspection). The passenger is usually asked questions regarding his trip, including the countries he has visited, any merchandise he has brought back, and the value of such merchandise. His answers are checked against his customs declaration form, and usually he is sent on his way. However, a portion of travelers are held over for secondary inspection. An inspector will recommend a traveler for secondary inspection for several reasons — for instance, if the traveler is suspected of carrying narcotics. Moreover, a secondary inspection may be ordered if the inspector suspects a traveler owes customs duties, or has undeclared, commercial, or prohibited merchandise. Furthermore, the U.S. Customs Service has developed a program called Compliance Examination (COMPEX), in which it randomly selects additional travelers for secondary inspection based on no suspicion whatsoever. During secondary inspection, the passenger is asked more detailed questions about his trip and may have his bag and body searched. The procedure lasts a few minutes and if nothing is found, the traveler is free to go. See U.S. CUSTOMS SERVICE, WHY U.S. CUSTOMS CONDUCTS EXAMINATIONS, at http://www. customs.ustreas.gov/travel/examinations.htm [hereinafter Customs Website].

Under 19 U.S.C. § 1582, the U.S. Customs Service has the authority to subject every international traveler to a secondary inspection, but it does not do so because resources are limited. See Customs Website. As opposed to jailhouse interrogations and other situations we have held custodial, there is no probable cause required for the Customs Service to detain a traveler for a secondary inspection. See 19 U.S.C. § 1582; cf. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (involving defendants already placed under arrest). Its power to search is vested in the voluntariness of the traveler's attempt to re-enter the country. United States v. Ramsey, 431 U.S. 606, 619, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977); see also United States v. Scheer, 600 F.2d 5, 6 (1979). "[E]vents which might be enough to signal `custody' away from the border will not be enough to establish `custody' in the context of entry into the country." United States v. Moya, 74 F.3d 1117, 1120 (11th Cir.1996).

We have held that routine customs inspections are non-custodial and do not require the reading of Miranda rights....