United States v. Pegg
| Decision Date | 29 April 2020 |
| Docket Number | No. 18-11573,18-11573 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOE HARRY PEGG, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
D. C. Docket No. 8:16-cr-00484-SCB-TGW-1
Appeal from the United States District Court for the Middle District of Florida
Before JILL PRYOR and GRANT, Circuit Judges, and ROYAL,* District Judge.
After Appellant Joe Harry Pegg began serving a 30-year sentence in federal prison, he aimed to reduce his sentence through a Rule 35 motion. To that end, Pegg paid a third-party cooperator to assist the government on his behalf, orchestrating the payments from prison through coded phone calls with his friends and family. Although such payments were not illegal, it was the policy of the United States Attorney's Office for the Middle District of Florida not to file a Rule 35 motion when a defendant had paid a cooperator. After the government discovered Pegg's scheme, Pegg lied during an interview with Assistant United States Attorneys and denied making any payments. As a result, the government indicted Pegg for conspiracy to obstruct justice, obstruction of justice, and making a false statement to federal law enforcement. After an eight-day trial, the jury found him guilty on all three counts, and the district court sentenced him to an additional 71 months. He now appeals his convictions and sentence.
On appeal, Pegg argues that the district court erred when it (1) denied his motion to suppress certain statements he made during an interview conducted without the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (2) refused to adopt three of Pegg's proposed jury instructions, (3) overruled his objections to the government's improper comments throughout trial and denied his motions for mistrial based on those comments, (4)denied his motion for judgment of acquittal, (5) applied a three-level sentencing enhancement for interfering with the administration of justice, and (6) applied a two-level sentencing enhancement for an offense extensive in scope, planning, or preparation. After careful review and with the benefit of oral argument, we AFFIRM.
While Pegg was in prison serving a 30-year sentence for conspiracy to import marijuana,1 Pegg's cellmate obtained a Rule 35 motion and a reduction of his sentence.2 Seeing his cellmate's success, Pegg also wanted to reduce his sentence through Rule 35, and the two discussed the possibility of his cellmate acting as a third-party cooperator on Pegg's behalf after his cellmate's release. After Pegg's cellmate was released, however, his probation officer would not allow him to act as a third-party cooperator for Pegg. Thus, Pegg's cellmate enlisted Fernando Morales to serve as a third-party cooperator on Pegg's behalf in exchange for $60,000. Pegg eagerly agreed and hired Morales with Pegg's cellmate fostering all communication between Pegg and Morales.
Working undercover with DEA agents, Morales began setting up drug deals as a part of his third-party cooperation, but the deals kept falling apart. One promising target of the DEA investigation, Maikel Murais, became interested in buying cocaine from Morales. Murais, however, wanted to buy a small sample from Morales first, which violated DEA investigation policies and procedures. Murais refused to buy the drugs without a sample, and the agents stopped pursuing him. About four months later, to the agents' surprise, Morales informed the agents that Murais was ready to purchase cocaine from them. The agents met Murais for the drug deal, arrested him, and charged him with attempt to possess with intent to distribute cocaine.
After Pegg heard the good news about the arrest, he instructed his attorney to pressure the United States Attorney's Office for the Middle District of Florida (USAO) to file his Rule 35 motion. Pegg had also hired DEA agent Bob Quinn and former DEA agent Samuel Murad to ensure the Rule 35 effort ran smoothly from inside the DEA.3 Agent Quinn set up a meeting with the USAO and Agent Gary Corbett, the DEA agent in charge of the Murais arrest, to ensure that Pegg would receive credit. Some concerns surfaced at the meeting based on Murais's sudden willingness to purchase drugs without sampling first, and Agent Corbett ultimately found evidence that Morales had, in fact, violated the DEA investigation policy andprovided Murais a sample of the cocaine. Although a grand jury indicted Murais, the USAO eventually abandoned the case because of Pegg and Morales's scheme.
Because Morales was a third-party cooperator for Pegg, the investigators also became suspicious of Pegg. Agent Corbett listened to Pegg's telephone calls from jail and found that Pegg had paid Morales $60,000 for his third-party cooperation, orchestrating the payments through coded phone calls to friends and family. Because Pegg paid Morales for third-party cooperation, USAO policy dictated that it would not file a Rule 35 motion to reduce his sentence.
Agent Corbett informed the USAO of his finding, and the USAO requested an interview with Pegg through his attorney. Pegg gladly consented, fully expecting that the interview would concern the Rule 35 motion the Assistant United States Attorneys (AUSA) would file on his behalf. Pegg, his attorney, AUSA Steven Muldrow, AUSA Anita Cream, and FBI Agent Lynn Billings, who posed as a paralegal, were present at the interview. With his attorney beside him, Pegg voluntarily answered questions concerning the third-party cooperation, but he ultimately lied about paying for it. The government later indicted Pegg and several co-conspirators.
After an eight-day trial, a jury convicted Pegg of conspiracy to obstruct justice, in violation of 18 U.S.C. § 371 (count one); obstruction of justice, in violation of 18 U.S.C. § 1503 (count two); and making false and fraudulentstatements to a federal law enforcement officer, in violation of 18 U.S.C. § 1001(a)(2) (count three). The district court sentenced Pegg to serve 71 months on count two, to run concurrent with 60-month sentences on counts one and three. Pegg challenges his convictions and sentence in this appeal, arguing that the district court erred in denying his motion to suppress, denying his motions for mistrial, rejecting his proposed jury instructions, denying his motions for judgment of acquittal, and applying two sentencing enhancements.
The district court denied Pegg's motions to suppress the statements he made during the interview based on Pegg's arguments that the interview violated his Miranda rights, finding Pegg was not in custody for purposes of Miranda. Pegg argues on appeal that he was in custody for purposes of Miranda because the government deceived him about the purpose of the interview, his attorney was only concerned for her own self-interests during the interview, and the government deceived him concerning the FBI agent's identity.4 We find no error.
We apply a mixed standard of review to a district court's denial of a motion to suppress, reviewing the factual findings for clear error and the legaldeterminations de novo. United States v. McCullough, 851 F.3d 1194, 1199 (11th Cir. 2017). We construe the facts in light most favorable to the United States as the prevailing party. Id.
Statements made during a custodial interrogation are not admissible at trial unless the defendant was first advised of his rights. Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612. The term "custody," as used in Miranda case law, "is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." Howes v. Fields, 565 U.S. 499, 508-09, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012). Whether a suspect is "in custody" for purposes of Miranda depends on the circumstances surrounding the interrogation and whether the "restraint on freedom of movement [is] of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293 (1994) (citations and quotations omitted). This determination depends on the objective circumstances of the interrogation, not the subjective views of either the interrogating officers or the person being questioned. Id. at 323, 114 S.Ct. at 1529; see Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317 (1984).
The fact that a prisoner is questioned while serving "a term of imprisonment, without more, is not enough to create Miranda custody." Howes, 565 U.S. at 512, 132 S.Ct. at 1191. First, interrogating an incarcerated person in prison isinterrogating him in his home, and thus does not involve "the same 'inherently compelling pressures' that are often present when a suspect is yanked from familiar surroundings in the outside world and subjected to interrogation in a police station." Id. at 511, 132 S.Ct. at 1191 (quoting Maryland v. Shatzer, 559 U.S. 98, 103, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010)). Second, when a prisoner is questioned, he is unlikely to be "lured into speaking by a longing for prompt release." Id. Finally, a prisoner, unlike a person who has not been convicted and sentenced, knows that the interrogating officers "probably also lack the power to bring about an early release." Id. at 512, 132 S.Ct. at 1191.
Pegg argues he was in custody because he was lured into speaking by a "longing for prompt release," and he knew that the AUSAs conducting the interview could file a Rule 35 motion for him, thereby reducing the duration of his sentence. Pegg's "longing for a prompt release" and anticipation for a potential sentence reduction, however, were merely his subjective views surrounding the interview, not the objective circumstances of the interview itself. Viewed objectively, a reasonable person in Pegg's circumstances would have understood that the AUSAs conducting the interview lacked the authority to release him from prison early...
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