U.S. v. Jones

• Decision Date: 05 April 1994
• Docket Number: No. 93-2164,93-2164
• Citation: 21 F.3d 165
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmie JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 165

21 F.3d 165

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie JONES, Defendant-Appellant.

No. 93-2164.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 26, 1994.

Decided April 5, 1994.

Frances C. Hulin, U.S. Atty., Rodger Heaton (argued), Danville, IL, for plaintiff-appellee.

Shari Goggin-Ward (argued), Landau, Omahana & Kopka, Lisle, IL, for defendant-appellant.

Before ESCHBACH, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge.

Defendant Jimmie Jones was convicted by a jury of conspiracy to possess cocaine and heroin with intent to distribute, distribution of heroin, attempt to possess cocaine with intent to distribute, possession of heroin with intent to distribute, as well as firearm, currency structuring, money laundering, and tax evasion offenses. The district court sentenced Mr. Jones to several concurrent terms of imprisonment, the longest of which is 360 months. Mr. Jones now appeals and asserts that evidence was introduced against him at trial in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that the district court erroneously refused to instruct the jury on the defense of entrapment. For the reasons that follow, we affirm the judgment of the district court except with respect to Mr. Jones' conviction for unlawful structuring of a currency transaction; we remand that conviction because of an instructional error. We also vacate the sentence and remand for resentencing.

I BACKGROUND

A. Facts

On March 6, 1992, at approximately 9:10 p.m., Mr. Jones, government informant Walter Krushall, an employee of Mr. Jones named Robert Lipscomb, and undercover agent Bennie O'Neal, met in a motel room at a Day's Inn in Springfield, Illinois. The meeting, which was audiotaped and videotaped, was described by Agent O'Neal as a "reverse sting operation" in which Mr. Jones was to purchase two kilograms of cocaine from Agent O'Neal in exchange for six ounces of heroin and $8,000. Following the transaction, a uniformed police officer entered the motel room with a gun drawn, and ordered Lipscomb to empty his pockets onto the bed. The officers seized the $8,000. Sergeant Steven Fermon of the Illinois State Police met Mr. Jones as Mr. Jones was leaving the motel room. Approximately five to seven other officers were also present. Sgt. Fermon, using what he described as a "friendly" tone of voice, told Mr. Jones that he wanted to speak with him. Sgt. Fermon testified that Mr. Jones said "all right" and "agreed to come." Mr. Jones was not allowed to go back to his van at any time outside the motel room.

Mr. Jones left the motel with Agent Dennis Stark and Inspector Chuck Jones, both from the Illinois State Police, in Agent Stark's squad car. Agent Stark testified at the pretrial suppression hearing that when he told Mr. Jones that he would like to transport Mr. Jones to police headquarters, Mr. Jones responded "okay" and that "he understood." Both Agent Stark and Mr. Jones testified that Agent Stark told Mr. Jones outside the motel room that he was not under arrest. ¹ Mr. Jones was driven approximately four miles to the Zone 9 police headquarters at the Capitol City Airport. Mr. Jones was not handcuffed at any time during the evening. Following his departure from the Day's Inn in a police vehicle, Mr. Jones' van was driven by the officers to the Zone 9 headquarters.

At the Zone 9 headquarters, officers talked with Mr. Jones in a large room with approximately three or four desks. Agent Stark and Special Agent Calhoun, an investigator with the Internal Revenue Service, questioned Mr. Jones. At some point, Agent O'Neal also participated in the questioning. The door was closed but unlocked during the questioning. Although Mr. Jones was not offered a telephone call at any time, there is no evidence that he requested one. Agent Stark again informed Mr. Jones that he was not under arrest and not in custody. At some point, Agent Stark also informed Mr. Jones that he was free to leave. ² During the questioning, Mr. Jones signed several forms in which he consented to a police search of various real properties he owned in Champaign and Urbana, Illinois. Mr. Jones also made incriminating statements concerning his involvement in selling heroin. Mr. Jones was not given Miranda warnings at any time on March 6 or 7, 1992.

The police officers searched the real properties in the early-morning hours of March 7 in Mr. Jones' presence. As a result of these searches, the officers obtained in Mr. Jones' residence a sixteen-ounce bottle of Mannitol, which can be used as a cutting agent for narcotics. They found in a warehouse owned by Mr. Jones 146 grams of heroin, a knife with heroin residue, an aerosol can with a false bottom, electronic and triple-beam scales, seven rifles, four shotguns, and a handgun. In his office they found a loaded Colt .45 caliber pistol. Following these searches, Agent Stark and another officer drove Mr. Jones back to his office in Champaign, Illinois. During this trip, Agent Stark testified that Mr. Jones said "that he couldn't understand why he was being treated so good."

B. Procedural Posture and Ruling of the District Court

Mr. Jones was charged in a superseding indictment with (1) conspiracy to possess cocaine and heroin with intent to distribute, 21 U.S.C. Secs. 846 and 841(a)(1); (2) distribution of heroin, 21 U.S.C. Sec. 841(a)(1); (3) attempt to possess cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1); (4) possession of heroin with intent to distribute, 21 U.S.C. Sec. 841(a)(1); (5) possession of a firearm by a convicted felon, 18 U.S.C. Sec. 922(g)(1); (6) unlawful possession of a firearm (two counts), 26 U.S.C. Sec. 5861; (7) unlawful structuring of a currency transaction, 31 U.S.C. Sec. 5324(3); (8) money laundering (eight counts), 18 U.S.C. Sec. 1956(a)(1)(B)(i); and (9) tax evasion (two counts), 26 U.S.C. Sec. 7201.

Mr. Jones filed a pretrial motion to suppress his statements of March 7, 1992, as well as all evidence seized as a result of signing the consent-to-search forms. The district court orally denied the motion after a hearing, and the statements and evidence subsequently were introduced at trial. The district court explained its rationale as follows:

Well, I have sent my law clerks out to find that wonderful Seventh Circuit case involving the Lincoln Park pirates and the police. They haven't come back with it.... And Judge Cummings writes in the decision that the defendant was free to leave. And I love that case because if the defendant was free to leave, and a reasonable person would have thought he was free to leave under the circumstances of the case, there is no case where a person would think that they were not able to leave. I will come up with that in due course.

The cases that follow Oregon v. Mathiason, turn on the question of whether a person would understand from what the police said and did that they were free to leave. And, of course, in this case Mr. Jones was caught red-handed in a drug transaction, committing a crime and even asked one of the police officers why are you treating me so nicely, which is some tip off as to the conditions under which he was questioned. The police didn't want to arrest him. They told him he was not under arrest, that he was free to go.

I have no reason to disbelieve the witness, Fermon, when he said if Jones had refused to answer him he would have turned him loose because it served the police interests not to arrest the defendants in this case at that time.

It appears to me that the interrogation was not in custody as that term has come to be described in the reported cases. I am sorry. I can't give you that Seventh Circuit citation where Judge Cummings wrote the decision. I will get it in due course. So that since the questioning was not a custodial interrogation, many of the statements by Mr. Jones are not suppressable [sic] or will not be suppressed.

Tr. at 36-37.

The district court further found that Mr. Jones' consent to the police search of his real properties was voluntarily given under Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). ³ The district court, over Mr. Jones' objection, also refused to instruct the jury on the affirmative defense of entrapment. The jury found Mr. Jones guilty of all charges.

II ANALYSIS

A. Lack of Miranda Warnings

1.

The proper appellate standard in this circuit to review whether a person was "in custody" under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is, in one respect, unclear. It is well-established that the district court's factual findings and credibility determinations are reviewed for clear error. United States v. Fazio, 914 F.2d 950, 955 (7th Cir.1990). We have stated, however, that although the "in custody" determination "tends to follow from various factual findings, the ultimate issue of whether there was a custodial interrogation is a mixed question of law and fact" subject to independent appellate review. United States v. Hocking, 860 F.2d 769, 772 (7th Cir.1988); see also Fazio, 914 F.2d at 955. Later cases have questioned the continued viability of the approach set forth in Hocking. In United States v. Levy, 955 F.2d 1098, 1103-04 n. 5 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 102, 121 L.Ed.2d 62 (1992), a panel of this circuit, noting that this circuit has applied a deferential standard of review to other so-called mixed questions of law and fact, said that the precedential value of Hocking 's indication that de novo review is appropriate has been "vitiated." More recently, in United States v. Kelly, 991 F.2d 1308, 1311 (7th Cir.1993), another panel of this circuit wrote, in the context of a motion to suppress for non-compliance with Miranda, that "[w]e review a district court's factual and legal determinations on a motion to suppress for clear error." Kelly relied upon our decision in United States v. Spears, 965 F.2d 262 (7th...