USA v. Carlson

• Decision Date: 14 September 2010
• Docket Number: No. 09-2766.,09-2766.
• Citation: 613 F.3d 813
• Parties: UNITED STATES of America, Appellee, v. Derek Joseph CARLSON, also known as Cup, also known as Buttercup, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

613 F.3d 813

UNITED STATES of America, Appellee,

v.Derek Joseph CARLSON, also known as Cup, also known as Buttercup, Appellant.

No. 09-2766.

United States Court of Appeals,Eighth Circuit.

Submitted: May 14, 2010.

Filed: July 27, 2010.

Rehearing and Rehearing En Banc Denied Sept. 14, 2010.

Elizabeth Caroline Royal, argued, Minneapolis, MN, for appellant.

James Lackner, AUSA, argued, Andrew Dunne, on the brief, Minneapolis, MN, for appellee.

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Derek Carlson appeals the district court's ¹ denial of his motion to suppress his pre- Miranda ² statements, denial of his motion for a new trial, denial of his trial counsel's motion to withdraw, and admission of his prior drug conviction at trial. For the reasons set forth below, we affirm.

I.

On January 22, 2007, law enforcement officials searched the home of Eric Rekonen pursuant to a drug conspiracy investigation. During the search, officials recovered Carlson's name and address in addition to over $80,000, methamphetamine, various drug paraphernalia, and a shaving cream can with a false bottom.

St. Louis County Sheriff's Deputy Elizabeth Flanagan and two Drug Enforcement Agency (DEA) agents attempted to contact Carlson. The DEA agents left a message with Carlson's roommate stating that they wanted to speak with Carlson and to serve him with a subpoena, and that they would serve the subpoena at his place of employment if he did not contact them. Carlson then arranged to meet with the DEA agents and Deputy Flanagan over his lunch break. The three law enforcement officers arrived at the restaurant before Carlson and deliberately arranged themselves so that Carlson would sit on the outside of their booth. When Carlson arrived, he requested permission to record the meeting, per the recommendation of his attorney. The officers stated that the meeting would end immediately if Carlson insisted on recording it and informed him that he was: not under arrest, free to leave at any time, and free to have an attorney present. Carlson agreed to continue the meeting without recording it and admitted, during questioning, that he was acquainted with a number of the co-conspirators; that he had purchased drugs from them in the past; and that Rekonen had asked him to collect drug debts, but he had declined to do so. Carlson eventually requested an attorney, and the officers ended the conversation immediately upon his request. The officers then served the subpoena and parted ways with Carlson.

Two months later, Carlson was arrested pursuant to a one-count indictment charging him with conspiring to distribute and possessing with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), and 846. Carlson filed a motion to suppress the statements he had made during the restaurant meeting. Following an evidentiary hearing, the magistrate judge ³ issued a report and recommendation (“R & R”), recommending the denial of Carlson's motion to suppress because Carlson had not been in custody and his statements were voluntary. The district court adopted the R & R and denied the motion to suppress.

Prior to trial, the government moved under Federal Rule of Evidence 404(b) to admit Carlson's 2001 Minnesota state conviction for possessing methamphetamine.

Notably, Carlson had been arrested in possession of a false-bottomed Tinactin spray can containing over six grams of methamphetamine. The district court did not address the motion until Carlson's jury trial. Outside the hearing of the jury, the court stated that Carlson's prior conviction was admissible: as evidence of a lack of mistake, probative as to his intent, and involved a similar modus operandi because Carlson had admitted to possessing a false-bottom can in his prior conviction and a false-bottom shaving cream can had been seized in the present case. The court did not make an explicit ruling on the admissibility of the underlying facts of the prior conviction.

The government called Duluth Police Department Officer Jeff Kazul to testify as to Carlson's 2001 state drug conviction. Before Officer Kazul testified, the court gave the jury a limiting instruction, stating “[C]onsider [Kazul's testimony] on the matters of intent, knowledge, absence of mistake, or accident.... You may not convict a person simply because you believe that he may have committed a similar act on a prior occasion.” (Trial Tr. vol. 2, 243-44, Feb. 6, 2008.) Officer Kazul testified that he had been one of the arresting officers in Carlson's 2001 arrest, that Carlson had admitted that the false-bottomed Tinactin spray can was his, and that over six grams of methamphetamine were found in the false bottom. The court allowed Carlson to make a record of his objection to Officer Kazul's testimony. Carlson argued that it was improper to allow the jury to hear the underlying facts of his prior state conviction. The court gave a second limiting instruction during the final jury instructions.

The government also introduced recorded phone conversations between Rekonen and Carlson, during which they discussed individuals who owed Rekonen money and from whom Carlson needed to collect. Other witnesses at Carlson's trial included two of Carlson's co-conspirators, Clayton Celley and Travis Hanson, who testified that Carlson was part of Rekonen's drug conspiracy. Testimony also revealed that Celley had given Rekonen the false-bottomed shaving cream can that officials had seized in the search of Rekonen's home.

After the jury returned a guilty verdict but before Carlson was sentenced, Carlson's trial counsel moved for a new trial based on newly discovered evidence. At a July 8, 2009 hearing, Carlson argued that a new trial was warranted because Celley and Hanson had schemed to lie in another case in order to receive sentence reductions in the present case. Counsel confirmed, however, that no witness would testify as to a plot to manufacture testimony at Carlson's trial. Carlson's trial counsel also requested permission to withdraw due to a conflict of interest, because a former client, who was a witness in support of Carlson's motion for a new trial, had withdrawn his waiver of privilege. The district court found that the witness's testimony would not be relevant, and denied both motions. The court later sentenced Carlson to 130 months in prison.

II.

First, Carlson claims that the district court erred in refusing to suppress his statements from the restaurant meeting. Although he acknowledges that he was not actually in custody at the meeting, he argues that his statements to the officers were involuntary because he feared that he would be served the subpoena at work, the subpoena meant that he would have to testify against his violent co-conspirators, and the DEA agents used strong-arm tactics in a “custody like situation.” (Appellant's Br. 18.)

We review the findings of fact supporting a district court's denial of a motion to suppress for clear error, and review legal conclusions based on those facts de novo. See United States v. Ingram, 594 F.3d 972, 976 (8th Cir.2010), pet. for cert. filed (U.S. June 15, 2010) (No. 09-11569). In United States v. Griffin, 922 F.2d 1343 (8th Cir.1990), we identified six factors to consider in determining whether an individual is in custody for purposes of Miranda:

(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police-dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.

Id. at 1349. However, these factors are not “exclusive,” and “[t]he ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest.” United States v. Czichray, 378 F.3d 822, 827-28 (8th Cir.2004).

Here, Carlson was informed at the beginning of the meeting that he was not under arrest and that he was free to leave at any time. See United States v. New, 491 F.3d 369, 373-74 (8th Cir.2007) (“The most obvious and effective means of demonstrating that a suspect has not been taken into custody is for police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will.” (quotation and alterations omitted)); United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir.2006) ( “[A]n explicit assertion that the person may end the encounter ... generally removes any custodial trappings from the questioning.”). In addition, Carlson was not restrained in a fashion similar to formal arrest because he sat on the outside of a booth in a public restaurant. See United States v. Martin, 369 F.3d 1046, 1057 (8th Cir.2004) (finding that interview was not custodial when it took place at public restaurant, and defendant's freedom was unrestrained beyond ordinary confines of being seated at table in public cafeteria). Furthermore, the officers did not arrest Carlson at the end of the meeting. See Griffin, 922 F.2d at 1349.

Contrary to Carlson's arguments, “the coercive aspects of a police interview are largely irrelevant to the custody determination except where a reasonable person would perceive the coercion as restricting his or her freedom to depart.” United States v. LeBrun, 363 F.3d 715, 721 (8th Cir.2004) (en banc) ( citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977)). Carlson's reluctance to be served with a subpoena was not so coercive as to render the interview...