U.S. v. Lennick, 90-1063

• Decision Date: 26 October 1990
• Docket Number: No. 90-1063,90-1063
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael LENNICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 974

917 F.2d 974

UNITED STATES of America, Plaintiff-Appellee, v. Michael LENNICK, Defendant-Appellant.

No. 90-1063.

United States Court of Appeals, Seventh Circuit.

Argued Aug. 9, 1990.

Decided Oct. 26, 1990.

Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., for plaintiff-appellee.

Thomas F. Grabb, South Bend, Ind., for defendant-appellant.

Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

COFFEY, Circuit Judge.

In this direct criminal appeal, appellant Michael Lennick argues that the district court erred in admitting at trial a statement Lennick made to a federal agent. Lennick was charged and convicted of making a false statement to a federal agent in violation of 18 U.S.C. Sec. 1001 after he told the agent that he was the owner of a certain gun. Lennick contends that the statement was admitted in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also claims that the trial judge erred in calculating his sentence under the Sentencing Guidelines.

I.

Lennick's conviction grew out of a larger investigation into drug trafficking in South Bend, Indiana. Lennick was a business partner of Edward Landaw, a convicted felon whom the South Bend police suspected of drug trafficking. During the summer of 1988, Landaw and his girlfriend, Linnette Moss, visited Moss' grandmother. Moss' grandmother lived with a man named Lonnie Freshour. Freshour had an assault rifle that he wished to sell, and Landaw said he knew someone who would buy it. Landaw left the house with the gun, and several days later Freshour called Moss to inquire whether the gun had been sold. Moss instructed Freshour to come over and pick up some money for the gun. Freshour arrived, was paid $400 by Moss, and then left.

The South Bend police arrested Landaw and Moss in October 1988 after concluding extensive surveillance of Landaw's activities. The rifle was found during the search of one of the buildings Landaw controlled. The gun was held by the police pending Landaw's trial. Landaw was charged with possession of a firearm by a convicted felon, and Moss was charged with conspiracy to distribute cocaine. After Landaw's arrest, Lennick went to Freshour and claimed that Landaw had actually sold the gun to him. Lennick told Freshour that he now wanted a receipt for the $400 he paid for the gun. Freshour complied and made out a receipt showing that Lennick purchased the gun during the summer of 1988. In a second attempt to provide Landaw with a defense to the firearm charges, Lennick employed an attorney who wrote to the South Bend Police Department and requested that the rifle be returned to Lennick because it belonged to him, not Landaw.

In July 1989, Moss' conspiracy trial began. Lennick attended the trial as a spectator. During a recess on July 18, Lennick was in the hallway outside the courtroom when he was approached by Special Agent Allbritten and a local police officer. According to Lennick, Allbritten asked him to identify himself. Lennick complied. Then, according to Lennick, the following occurred:

Special Agent Allbritten ... asked Mr. Lennick if he was the owner of the Marlin rifle which was taken in the search [of Landaw's building]. Mr. Lennick responded that he had an attorney who wanted to be present at any questioning concerning the rifle and Special Agent Allbritten stated that an attorney was not necessary since all he wanted to know was whether Mr. Lennick was claiming ownership of the gun in question. Mr. Lennick then stated that he was the owner.

The agent and the police officer left after Lennick provided this information.

The next day, the government charged Lennick with violating 18 U.S.C. Sec. 1001. Lennick sought to have the statement to Allbritten suppressed at trial. He argued that the agent should have given Miranda warnings before questioning him and that the agent should have stopped questioning him when he invoked his right to counsel. This was especially true, Lennick contended, because the government already knew that Lennick claimed to be the gun's owner: Lennick had publicly sought the return of the gun from the South Bend police, and Landaw's defense to the firearm charges was that Lennick was the real owner of the rifle. The district court refused Lennick's request for a hearing on the motion to suppress and allowed the statement to be admitted at trial. The court denied the motion because Lennick alleged no facts that would support a finding that he was "in custody" (and therefore entitled to Miranda warnings) when Allbritten asked him the question about ownership of the gun.

II.

On appeal, Lennick renews his challenge to the admissibility of the statement he made to agent Allbritten. He also argues that the district court improperly increased his sentence under section 2F1.1(b)(2)(A) of the guidelines on the grounds that Lennick's false statement to the federal agent involved "more than minimal planning."

A.

As an initial matter, there is a question as to the proper standard of appellate review of whether a person was "in custody" for purposes of Miranda. Lennick claims that the proper standard is a de novo review of the district court's holding. For support, he points to United States v. Hocking, 860 F.2d 769, 772 (7th Cir.1988), where the court held that the "ultimate issue of whether there was a custodial interrogation is a mixed question of law and fact." As such, Hocking held that the district court's "determination is independently reviewable by an appellate court." Id. There was no direct authority for this holding, however, and the court in Hocking noted conflicting authority supporting the more deferential "clearly erroneous" standard. See id.

Due to the lack of definitive Supreme Court precedent on the issue, see United States v. Boden, 854 F.2d 983, 990 (7th Cir.1988), the announced standards range from Hocking 's de novo review, 860 F.2d at 772, to an intermediate standard of granting the district court's determination "some deference," United States v. Ceballos, 812 F.2d 42, 47 & n. 1 (2d Cir.1987), to the clearly erroneous standard that grants district court determinations the greatest deference. United States v. Teslim, 869 F.2d 316, 321 (7th Cir.1989); cf. United States v. Malin, 908 F.2d 163, 169-70 (7th Cir.1990) (noting a split in authority on the question whether probable cause determinations are entitled to de novo or clearly erroneous review). The government does not address the question and fails to suggest an appropriate appellate standard for this case. We need not identify a specific standard in this case, however, because the district court's determination can be upheld even under the nondeferential de novo review.

B.

Turning to the merits of Lennick's claim, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court "set forth rules of police procedure applicable to 'custodial interrogation.' " Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). These procedures required that defendants be given "a full and effective warning of [their] rights at the onset of the interrogation process." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. ¹ Of course, this requirement is not triggered unless a custodial relationship is established between the accused and the government. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. "[C]ustodial interrogation ... mean[s] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612.

In order to establish a custodial relationship, a defendant must either show that he or she was formally arrested, or that he or she was subjected to restraints of freedom such that the conditions of a formal arrest were closely approximated or actually attained. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714; Hocking, 860 F.2d at 772. In the latter case, the test is not whether the defendant was under a subjective belief that his or her movements were restricted, but whether a reasonable person in the defendant's position would believe that he or she was free to leave. Boden, 854 F.2d at 991. Thus, "[t]here is no 'seizure' subject to the Fourth Amendment unless a reasonable person in [defendant's] position would have believed that he was not free to ignore [the police] and continue on his way; the test is objective." Id.

A totality of the circumstances test is used to determine whether a reasonable person would have believed he or she was free to leave. Under this analysis, we look to such factors as the length of the interrogation, the purpose of the questioning, and the location of the interrogation. Hocking, 860 F.2d at 773; Teslim, 869 F.2d at 321. Since Lennick does not claim that he was formally arrested in the courthouse hallway, he must demonstrate that a reasonable person in his position would have believed that he or she was not free to ignore agent Allbritten and walk away. Hocking, 860 F.2d at 772.

Lennick fails to meet his burden on the facts he alleged in his motion to suppress. Lennick concedes in his brief that the questioning lasted only a few seconds and that there was little or no overt pressure on Lennick to make the statement. Lennick argues, however, that the fact that he was outnumbered by the two officers and that the encounter took place in the nonneutral setting of the government courthouse rendered the encounter custodial. He also claims that the government's purpose in questioning him was simply to elicit an incriminating statement that could form the basis for a formal charge under 18 U.S.C. Sec. 1001.

Even if Lennick is correct in his assessment of the government's motives in questioning him in the hallway that day, the purpose of the questioning is but one factor to consider in the totality of the circumstances analysis. As the government...