United States v. Lemon

714 F. App'x 851
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 31, 2017
Docket16-6213
StatusUnpublished
Cited by3 cases

This text of 714 F. App'x 851 (United States v. Lemon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lemon, 714 F. App'x 851 (10th Cir. 2017).

Opinion

ORDER AND JUDGMENT *

Bobby R. Baldock, Circuit Judge

A jury convicted Defendant Jeffrey Lemon, Jr., of seventeen counts of mail theft by a'postal service employee in violation of 18 U.S.C. § 1709. Defendant appeals his convictions, claiming the district court erred by (1) denying his motion for a continuance fled the eve of trial; (2) admitting Defendant’s confession made to postal investigators; (3) admitting evidence of Defendant’s gambling; (4) excluding Defendant’s repudiation of his prior confession; and (5) instructing the jury that the Government was under no obligation to use any particular investigation method. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

The record reveals Defendant started working at the post office in Warr Acres, Oklahoma, in November 2013. As a postal service employee clerk, Defendant prepared mail for carriers, sold stamps and money orders, and received mail from customers. In June 2015, a customer of the Warr Acres post office filed a complaint with the postal service, claiming a money order she purchased and mailed to the Department of Treasury to pay her taxes never reached its destination. The USPS Office of Inspector General (OIG) investigated this complaint and found someone had cashed the money order at the Warr Acres post office. Further investigation revealed that Clerk Number 4 had handled this transaction. As more customers complained about money orders never reaching their destinations, the OIG learned that Clerk Number 4 had cashed every one of the lost money orders.

With evidence in hand that Clerk Number 4 might have information about the lost money orders, OIG investigators Rey Santiago and Mitch Davis went to Warr Acres to interview Clerk Number 4. Defendant was Clerk Number 4. Santiago and Davis arrived at the post office during business hours on July 7, 2015. They first spoke with Defendant’s' manager, Randy Harrelson, and asked him to retrieve Defendant for an interview. Harrelson notified Defendant that investigators were there to speak with him and escorted Defendant back to his office. Harrelson then left the office, shutting—but not locking— the door on the way out. In the office, the investigators did not restrain Defendant in any way. Santiago and Davis were both in plain clothes, and while they were armed, neither of their weapons were visible.

Santiago and Davis explained they wanted to speak to Defendant because missing money orders had been cashed at the Warr Acres post office. Before asking any substantive questions, however, Santiago and Davis specifically told Defendant he was not under arrest and administered a Garrity warning, advising Defendant— both orally and in writing—-(1) he had the right to remain silent if his answers would tend to incriminate him; (2) anything he said or did may be used as evidence against him in a court of law; (3) he would not be disciplined solely for remaining silent; and (4) the interview was strictly voluntary and he could leave or stop answering questions at any time. 1 Defendant heard and read these rights, then signed a form, initialing next to each of these rights to acknowledge he understood them. The form also stated, “No promises or threats have been made to me and no coercion of any kind has been used against me.” Santiago explained to Defendant what coercion meant in case he did not understand, and then Defendant also signed beneath this statement. Because the investigators did not consider Defendant to be in custody, they neither administered a Miranda warning nor recorded the interview.

After acknowledging he understood his rights, Defendant agreed to participate in the interview. Defendant admitted he had stolen money orders customers had mailed, cashed them, and kept the money. When a customer would hand him an envelope to mail that Defendant knew contained a money order, he would remove the money order, forge a signature and driver’s license number, and cash it himself. Santiago brought copies of ten suspect money orders and asked Defendant to initial the ones he had stolen and cashed. Defendant admitted cashing some of the money orders but denied cashing others. Defendant estimated he profited between $6000-7000 in this endeavor. Defendant denied stealing anything else at work. Trying to understand Defendant’s motive, Santiago asked Defendant if he had financial troubles. He admitted his wages were being garnished for a student loan and, while denying he had a gambling problem, said he gambled two or three nights every week.

At the end of the interview, Santiago asked Defendant if he wanted to write a handwritten statement to include in the administrative report that the investigators would present to OIG management and the U.S. Attorney’s Office. While Defendant was not required to write a statement, Santiago gave Defendant the opportunity to do so since he had expressed remorse. Santiago stepped out of the office to talk with the manager, and when he returned, Defendant had barely written anything. To help Defendant decide what to write in his statement, Santiago reviewed the notes of the interview with Defendant. Defendant wrote his statement, admitting stealing and cashing most of the money orders he was shown but denying stealing anything else in the post office. Defendant then signed this statement under penalty of perjury.

After Defendant signed his statement, his manager placed him on unpaid administrative leave. The investigators escorted Defendant to his work area, locker, and car to see if they could find any evidence of the crime. They did not find evidence of stolen mail in any of these locations but did find a Newcastle Gaming player’s club card in Defendant’s car. This entire encounter lasted approximately one and a half hours.

Either that night or the next day, with the help of union representatives, Defendant wrote a statement disclaiming all responsibility for the lost money orders. In this statement, Defendant stated the investigators pressured him into making a confession by “testing [his] compassion for the victims.” In three subsequent investigative interviews, Defendant denied stealing and cashing money orders.

In September 2016, a grand jury indicted Defendant on eighteen counts of mail theft by a postal service employee. The court set trial for November 2015 but later continued it, at Defendant’s request, to December 1, 2015. The parties made four relevant pretrial motions. First, Defendant filed a motion to suppress the July 7 statements he made to investigators. Defendant argued he was in custody and thus entitled to Miranda warnings. Defendant additionally argued the statements were not voluntary. In a supplement to that motion, Defendant argued USPS regulations, requiring all employees to (1) obey their supervisor and (2) cooperate with investigations, established he was in custody. 2 At a hearing on this motion, the district court concluded, despite the regulations, Defendant was not. in custody. Calling the interview a “classic example of ... voluntary,” the district court explained its ruling.

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Cite This Page — Counsel Stack

Bluebook (online)
714 F. App'x 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lemon-ca10-2017.