Documente Academic
Documente Profesional
Documente Cultură
No. 08-5223
Affirmed by published opinion. Judge Agee wrote the opinion, in which Chief Judge Traxler and Judge Motz concurred.
COUNSEL
ARGUED: Tracy Weese, Shepherdstown, West Virginia, for
Appellant. David J. Perri, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee. ON BRIEF: Sharon L. Potter, United States Attorney,
OPINION
AGEE, Circuit Judge:
John E. Hargrove appeals his convictions for attempted
transfer of obscenity to a minor, in violation of 18 U.S.C.
1470 ("Count I"), transfer of child pornography, in violation
of 18 U.S.C. 2252A(a)(1) ("Count II"), and attempted
enticement of a minor, in violation of 18 U.S.C. 2422(b)
("Count III"). Specifically, Hargrove asserts the district court
should have suppressed statements he made to law enforcement officers because at the time he made them he was subject to a custodial interrogation and had not been informed of
his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
Hargrove also contends his sentence is substantively unreasonable because the district court erred by considering that
Hargrove exercised his right to a jury trial as a basis for the
sentence imposed. For the reasons set forth below, we affirm
the judgment of the district court.
I.
For a period of several months, Hargrove communicated in
internet chat rooms with two undercover law enforcement
officers posing as underage females. During the same period,
Hargrove also communicated with two actual underage
females.1 The online conversations with the two undercover
officers and one of the actual minors ("S.M.") (collectively
"the three minors") contained graphic sexual talk as Hargrove
described in explicit detail how the three minors should pre1
pare for their chats, how to behave throughout daily life, and
how to "be ready for" their eventual meeting when the three
minors would serve as Hargroves sexual slaves. Hargrove
asked the three minors to send him photos of each of them
engaged in sexual acts and also sent them images depicting
child pornography and various sexual activities involving
bondage. As the discussions progressed, Hargrove made
extensive plans with the three minors to coordinate how they
would come live with him as "slave sisters," including coordinating financial and travel arrangements and asking them to
each obtain the signature of her mother so that he could create
false emancipation papers.
As the communications reached the point where Hargrove
was attempting to arrange meeting the three minors in person,
the Federal Bureau of Investigation ("FBI") obtained and executed a search warrant on Hargroves residence in Bristol,
Connecticut. Michael Chance, a computer crimes task force
officer, was the lead investigating officer present during the
January 5, 2007, execution of the search warrant. FBI Special
Agent Cathy Shumaker was the senior officer assisting with
the case, and was also present during the execution of the
search warrant. In addition to overseeing the search, Agent
Chance interviewed Hargrove, during which time Hargrove
made a number of incriminating statements.
In July 2007, a federal grand jury in the Northern District
of West Virginia indicted Hargrove on Counts I, II, and III.2
Hargrove initially negotiated a "binding" plea agreement with
the Government. The agreement was structured so that Hargrove would plead guilty to Count III, the Government would
dismiss the remaining charges, and the district court would
impose the negotiated maximum sentence of 240 months
imprisonment. In the event the district court rejected the plea
2
At various times during the proceedings below, Hargrove was represented by counsel or, upon Hargroves request, proceeded pro se. Hargroves representation at any given point in the proceedings is not relevant
to the issues on appeal.
In addition to Hargrove, Hargroves daughter, who Agent Chance testified was "probably in her 20s," and the daughters boyfriend were inside
the home. (Supp. J.A. 20.)
5
Agent Shumaker testified her gun was not drawn, although she did
have her service firearm with her. She did not know whether anyone on
the entry team had their weapons drawn.
6
Agent Shumaker testified that if Hargrove had expressed a desire to
leave his house, he would have been free to do so, and the agents "would
have just asked how he wanted the premises secured. We were going to
stay and complete the search but he was free to" leave. (Supp. J.A. 50.)
"in a comfortable atmosphere," and that no evidence of coercion or improper inducement existed. (J.A. 157.)
Hargrove objected to the magistrate judges recommendation, contending that the agents were not there simply to conduct the search because they had surrounded the house before
entering, which would not have been necessary if they did not
want to keep everyone inside the residence, and that during
the interview Agent Shumaker "block[ed] [his] entry to his
living room" and Agent Chance "positioned himself between
[Hargrove] and the back door."
The district court adopted the magistrate judges recommendation. The court observed that Hargroves argument
"that he did not feel free to leave is not dispositive" because
"[c]ustody determinations do not depend on the subjective
views of either the interrogating law enforcement officers or
the person being questioned, but depend instead [on] the
objective circumstances of the interrogation." Concluding,
the district court found that
[g]iven the testimony of Agents Chance and Shumaker, and defendants own testimony, that defendant was not handcuffed at the time his statements
were made; that the agents did not draw their weapons in the kitchen; that defendant was told he was
not under arrest and that he was free to leave; and
that the conversation that took place between the
defendant and the agents was amicable and nonthreatening in tone, the [c]ourt finds that defendant
was not in custody at the time of his interview on
January 5, 2007 and, therefore, not subject to the
protection of Miranda warnings. Defendants objection is accordingly overruled.
The case proceeded to trial by jury, and the Government
introduced into evidence the statements Hargrove made to
Agent Chance during the January 5, 2007 interview. In addi-
The base offense level was 32, but the district court determined the following Guidelines enhancements were applicable: age of the victim (2level increase), an offense involving the commission of a sexual act (2level increase), distributing pornographic images of a minor engaged in a
sexual act (2-level increase), pornographic images depicting sadistic or
masochistic conduct (4-level increase), and use of a computer service (2level increase).
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Motion to Suppress
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the circumstances. 511 F.3d at 435; see also Davis v. Allsbrooks, 778 F.2d 168, 171-72 (4th Cir. 1985) ("Though
informing a suspect that he is not under arrest is one factor
frequently considered to show lack of custody, it is not a talismanic factor." (citations omitted)). Moreover, the second
statement that Hargrove was free to leave was not present in Colonna, and affirmatively informed Hargrove that he
did not have to participate in the interview or even remain in
the house.10 See Colonna, 511 F.3d at 436 (citing with
approval United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir.
2006), which "not[ed] that although advising someone that he
or she is not under arrest mitigates an interviews custodial
nature, an explicit assertion that the person may end the
encounter is stronger medicine."). This affirmative statement
of being free to leave goes beyond the merely implied permission to leave that the Court in Parker noted was important to
its totality of the circumstances analysis. Agent Chance did
not simply refrain from telling Hargrove that he was not free
to leave, but he explicitly informed him he could leave. Cf.
262 F.3d at 419; see also Uzenski, 434 F.3d at 705 (finding
no custodial interrogation where the interviewee was permitted to use the bathroom, the door to the room where the interview was conducted was left partially open at times, and the
agents told him he was free to leave at any time). Such a statement, that the interviewee is free to leave, is not "talismanic"
or sufficient in and of itself to show a lack of custody. However, it is highly probative of whether, in the totality of the
circumstances, a reasonable person would have reason to
believe he was "in custody."
The magistrate judge and district court also found that the
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interview conducted in Hargroves kitchen was in a "comfortable atmosphere" and was "amicable" and "non-threatening."
This finding is not clearly erroneous either. And although the
setting of the interview is not singularly dispositive, an interview at a suspects residence tends to be more neutral than
one that occurs at a law enforcement facility. A more relaxed
environment usually indicates less formal police control over
the location or the defendant, and thus suggests a setting that
is not of the degree typically associated with a formal arrest.
Oregon v. Elstad, 470 U.S. 298, 315 (1985) (environment not
coercive where interview took place in living room of defendants home, with his mother in the kitchen); United States v.
Braxton, 112 F.3d 777, 785 (4th Cir. 1997) (statement not
involuntary where defendant "was interviewed by law
enforcement officers around the kitchen table in his mothers
home"); see also United States v. Ritchie, 35 F.3d 1477, 1485
(10th Cir. 1994) ("Courts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings" (alterations, quotation,
and citation omitted)); United States v. Sutera, 933 F.2d 641,
647 (8th Cir. 1991) ("It is also relevant that [the defendant]
was on his own turf. . . . While a person may be deemed to
be in custody even in his own home, it is not the type of coercive setting normally associated with custodial interrogation.").
Similarly, there is evidence that Hargrove was permitted to
move about his house so long as doing so did not interfere
with the ongoing search. Agent Shumaker testified that Hargrove was permitted to move around the house, and specifically left the kitchen to attend to his cat. Hargrove relies on
two occasions where he contends he was prevented from
doing as he wished he was not allowed in his bedroom to
retrieve cigarettes and he was prevented from talking to his
daughter and smoking a cigarette with her on his front porch.
However, the record also indicates that these requests would
have interfered with or compromised the Agents search of
the home. Hargroves cigarettes were located "by [his] com-
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B.
Hargroves Sentence
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district court. See United States v. Stall, 581 F.3d 276, 283
(6th Cir. 2009) (citing United States v. Vonner, 516 F.3d 382,
391-92 (6th Cir. 2008) (en banc)); United States v. Whitelaw,
580 F.3d 256, 259-60 (5th Cir. 2009) (citing United States v.
Peltier, 505 F.3d 389, 390-92 (5th Cir. 2007)); United States
v. Lopez-Flores, 444 F.3d 1218, 1220-21 (10th Cir. 2006).
In particular, the Fifth Circuit has noted that presenting "a
specific legal error distinguishes [a] case from those that have
held that the defendant need not specifically object that a sentence is unreasonable to preserve a reasonableness objection
on appeal." United States v. Hernandez-Martin, 485 F.3d 270,
272 n.1 (5th Cir. 2007). Thus, where a defendant raised the
"specific legal error" that the sentencing judge "considered an
inappropriate factor" in deciding what sentence to impose, the
court reviewed only for plain error because the defendant
failed to raise the objection below. Id. at 272. Similarly, the
Tenth Circuit has noted the difference between challenging
the reasonableness of the length of the sentence generally and
challenging the method of getting there, and concluded that
plain error review is appropriate in the latter circumstance,
where "the usual reasons for requiring a contemporaneous
objection apply." Lopez-Flores, 444 F.3d at 1221.
Here, rather than simply challenging the substantive reasonableness of his sentence due to its length or non-specific
considerations, Hargrove raises a specific allegation of error
that the district court considered the improper factor of
exercising his right to trial during the sentencing hearing.
This claim of error was not addressed at all in Hargroves earlier arguments in favor of a below-Guidelines sentence. It was
an alleged error that arose during the courts statements
explaining the basis for the sentence it imposed. Hargrove
failed to object to it at the time, thus denying the district court
the opportunity to consider Hargroves argument and correct
the purported error. Hargrove raises this specific issue for the
first time on appeal. Under these circumstances, we conclude
that it is appropriate to apply the general principle established
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