US v. Podhorn

• Decision Date: 08 December 2008
• Docket Number: No. 06-2139.,06-2139.
• Citation: 549 F.3d 552
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul E. PODHORN, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

549 F.3d 552

UNITED STATES of America, Plaintiff-Appellee, v. Paul E. PODHORN, Jr., Defendant-Appellant.

No. 06-2139.

United States Court of Appeals, Seventh Circuit.

Argued September 17, 2007.

Decided December 8, 2008.

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Thomas Edward Leggans (argued), Office of the United States Attorney, Benton, IL, for Plaintiff-Appellee.

Thomas L. Shriner, Jr., Paul Bargren (argued), Foley & Lardner, Milwaukee, WI, for Defendant-Appellant.

Before FLAUM, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Permission to sell firearms is not open to all comers; people wanting to engage in that business must obtain a Federal Firearms License from the Department of Treasury's Bureau of Alcohol, Tobacco, Firearms and Explosives. See 18 U.S.C. § 923; see generally http://www.atf.gov/ firearms/faq/faq2.htm# a1 (last visited November 12, 2008). Paul Edward Podhorn had such a license, but he misused it. A grand jury accordingly charged him with two counts of making false statements, in violation of 18 U.S.C. § 1001(a)(2), two counts of selling stolen firearms, in violation of 18 U.S.C. § 922(j), 22 counts of selling firearms without maintaining proper records, in violation of 18 U.S.C. § 922(b)(5), and one count of failing to maintain proper firearm records, in violation of 18 U.S.C. § 922(m). The Government dismissed one of the 22 counts of selling firearms without maintaining proper records (count 26SS), and a jury convicted Podhorn of all remaining charges.

On appeal, Podhorn's central claim is that evidence critical to his conviction should have been suppressed. Additionally, he argues that the district court erred in its calculations under the Sentencing Guidelines when it imposed several sentencing enhancements, that the court should have instructed the jury on a lesser included offense, and that the court abused its discretion when it allowed the prosecution to display a particularly menacing firearm throughout the trial even though the prosecution ended up dropping that weapon from the case.

I

Podhorn and the Government gave rather different accounts of the facts relating to the motion to suppress—indeed, the district court described the two versions as "diametrically opposed ... in many ways." In the end, however, the court decided that the Government's witnesses were more credible. It specifically stated that "Defendant Podhorn at times was vague, nonresponsive, argumentative, inconsistent in his answers, had selective recollection, and was coy." For the record, the court also presented Podhorn's version of the facts, based on what it could "glean as best as possible" from his contentions. We review the district court's findings of historical fact under the deferential clear error standard. United States v. Tyler, 512 F.3d 405, 409 (7th Cir.2008); United States v. Groves, 470 F.3d 311, 317-18 (7th Cir.2006). Because Podhorn has offered no persuasive reason why we should reject the district court's findings, we accept that court's findings for purposes of this appeal.

After Podhorn's business contacts complained of improper dealing, Special Agent Robert Nosbisch of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") obtained a federal search warrant for Podhorn's business premises. The complaints also resulted in state warrants for Podhorn's arrest. While the search warrant was being executed, ATF Investigator Lisa Storey telephoned Podhorn at his brother's house and asked if she could come speak with him about his federal firearms license. He agreed. Storey soon arrived with two ATF Special Agents, Nosbisch and Jeffrey Matthews, and they spoke with Podhorn on the front lawn for about ten minutes. They then asked if he would accompany them to his business premises. Once again, he agreed. After spending ten to twenty minutes at Podhorn's store, Nosbisch asked Podhorn if he would go to the Jersey County Sheriff's Department for an interview. Yet again, he agreed.

Upon Podhorn's arrival at the Sheriff's Department, Jersey County officers arrested him on the state warrants and advised him of his Miranda rights. He signed an ATF Miranda acknowledgment and waiver form. He was then interviewed, and during the course of the interview, Nosbisch asked Podhorn if he was willing to consent to a search of his car and his personal effects located at his brother's house and at his daughter's house in Virginia. At that point, rather than consenting right away, Podhorn asked to speak with an attorney. The officers gave him contact information for three attorneys. Podhorn spoke with two of them by telephone; one actually came and talked with him in person. After speaking with the third attorney, Podhorn told the officers that he wanted to cooperate, and he signed the search consent forms. The statements Podhorn made to Nosbisch and the items found in Podhorn's place of business, his car, and among his personal effects gave rise to the charges in the second superseding indictment.

II

Despite the strong evidence of consent, Podhorn maintains on appeal that all of this evidence should have been suppressed, and that his conviction must be reversed because it was not. He begins by asserting that the district court erred in admitting evidence obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In his view, the Miranda warnings he received came too late, after the damage was already done. The correct time, he asserts, would have been at the start of the encounter at his brother's house, because from that moment on he was under de facto arrest and was being interrogated. He also claims that, once arrested, the search consent forms he signed were tainted because they were obtained through further interrogation initiated by the government after he had requested but before he had received the advice of counsel, in violation of Edwards.

Under Miranda, warnings are required only when a suspect is undergoing custodial interrogation. In deciding whether a suspect was in custody during an interrogation, we must ascertain whether the suspect's freedom of action was curtailed to a degree associated with formal arrest. United States v. Smith, 3 F.3d 1088, 1097 (7th Cir.1993). As the district court noted, this determination must be made in light of the totality of the circumstances surrounding the encounter. United States v. Jones, 21 F.3d 165, 170 (7th Cir.1994). We look to see how "a reasonable man in the suspect's position would have understood his situation"; relevant factors to consider include the "freedom to leave the scene and the purpose, place and length of interrogation." Id.

Applying this standard, the district court was "unable to conclude that Podhorn was in custody during his encounter with ATF personnel until he was formally arrested as it appears he was free to leave." Podhorn was never told he could not leave, nor did he ask or attempt to leave; he was never physically restrained; no threatening gestures or statements were made to him; the agents did not display weapons; and Podhorn was able to walk by himself back into his brother's house to drop off his car keys before returning to accompany Nosbisch in Nosbisch's minivan. Although the minivan was used for ATF purposes, it was unmarked, had no separation between the front and back seats, and did not otherwise resemble a police car. The fact that Podhorn was not free to leave the car once it was in motion (as is always true of any rider in any car driven by any party) is not relevant because the evidence indicates that he voluntarily agreed to ride in Nosbisch's car. The district court also noted the brevity of the encounter ("five to ten minutes" at Podhorn's brother's house and "ten to twenty minutes" at Podhorn's business premises) and Podhorn's subjective awareness of his rights ("at the suppression hearing, Podhorn testified that he knew he could refuse to answer Nosbisch's questions or requests, and did in fact not answer some questions").

Podhorn's contention that the officers acted wrongfully in seeking his consent to search after he requested an attorney is unfounded. As noted above, when Podhorn asked to speak with a lawyer, "Nosbisch assisted Podhorn in contacting two private attorneys via telephone, and then arranged for Podhorn to speak privately with a state public defender. After speaking with the state public defender, Podhorn consented to the searches" at issue.

Having found that "there was no custodial interrogation of Podhorn prior to the time he was placed under arrest and read his Miranda rights," the district court, citing United States v. Ienco, 182 F.3d 517 (7th Cir.1999), ruled that "subsequent statements and consents given could not have been tainted." We have no reason to second-guess the district court's credibility determinations, under which it accepted Agent Nosbisch's testimony and rejected Podhorn's. The court's findings easily support its conclusion that, apart from the Miranda question, Podhorn's statements and waivers were voluntary. The court added that, "while in no way outcome dispositive," its conclusion on voluntariness was reinforced by the facts that Podhorn "had attended law school for two years and briefly worked in the legal field" and that the encounter had no indicia of compulsion or government overreaching, such as violence, threats, promises, or unduly protracted interrogation.

III

Podhorn next argues that the district court erred in allowing Government Exhibit 37 (a firearm with a bipod—the subject of Count 27SS) to be displayed during the trial, because it was menacing and not probative. A district court's evidentiary rulings are reviewed for an abuse of discretion. United States v. Gougis, 432 F.3d 735, 742 (7th Cir.2005).

At the post-trial forfeiture hearing, the Government announced its intention not to pursue forfeiture of that weapon because...