United States v. Michael S. Czichray

378 F.3d 822, 2004 WL 1779114

Opinions

COLLOTON, Circuit Judge.

The government appeals from an order of the district court suppressing a written statement that Dr. Michael Czichray, a chiropractor, signed at the conclusion of an interview with FBI agents. The district court determined that the statement should be suppressed because it was the product of custodial interrogation that was conducted without informing Czichray of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We respectfully disagree, and we reverse.

I.

The district court, after receiving a report and recommendation from a magistrate judge, made extensive findings of fact concerning Czichray’s encounter with the FBI, and the government does not assert on appeal that any of these findings were clearly erroneous. FBI agents Timothy Bisswurm and Sean Boylan went to Czichray’s home the morning of February 16, 2001, to interview him regarding a health care fraud investigation. Prior to their arrival, the agents called Czichray at 4:30 a.m. to ensure that Czichray was home, stating they had the wrong number. At 6:30 a.m., the agents approached the home. When Czichray did not answer the door, Agent Boylan called Czichray by telephone and told him that he needed to come to the front door. When Czichray appeared, Boylan identified himself and Bisswurm as FBI agents and told Czi-chray they would like to speak with him for a few minutes. Boylan further informed Czichray that he need not speak with the agents. Although he was dressed in a t-shirt and boxer shorts, Czichray admitted the agents into his home, and the three men proceeded to the living room to discuss the investigation.

Over the course of the ensuing interview, which lasted nearly seven hours, Czi-chray was informed several times that his participation was voluntary, and that he was free to ask the agents to leave his home. About three hours into the interview, Czichray told the agents that he was late for work. The agents instructed Czi-chray to call in sick, and directed him not to inform his office about the investigation. Czichray complied. Although the telephone rang several times as the interview progressed, the agents instructed Czichray not to answer, and Czichray did not do so. When Czichray moved about his home on two occasions to go to the bathroom and his bedroom, Boylan accompanied him to check the rooms for telephones. During the interview, Czichray was told that if he did not cooperate, the agents would interview his 75-year-old father and others. The agents further told Czichray that they would “light up his world,” and also suggested that if he did not cooperate, then they could use the power of the FBI to pressure insurance companies to withhold payments from his business.

Czichray did not resist the agents’ questioning during the interview, and he never asked them to leave. At the conclusion of the meeting, Czichray signed a written statement (after making one correction and initialing each page) acknowledging that “no one has threatened, coerced or promised me anything.” The written statement contained admissions that Czi-chray had knowingly caused insurance companies to reimburse at least one hundred false claims, and knowingly paid illegal fees to persons who referred new patients to Czichray’s chiropractic clinic. There was no threat of arrest during the encounter, and the agents never displayed weapons. Czichray was not arrested until weeks later.

Czichray was charged in a twenty-seven count indictment with various crimes relating to an alleged health care billing fraud scheme. He brought a motion to suppress his signed statement. After concluding that Czichray was in custody and had not been given Miranda warnings, the district court granted the motion. In reviewing the district court’s grant of Czichray’s motion to suppress, we review its conclusions of law de novo, and its findings of fact for clear error. United States v. Guevara-Martinez, 262 F.3d 751, 753 (8th Cir.2001).

II.

The ultimate question in determining whether a person is in “custody” for purposes of Miranda is “whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (internal quotation omitted). The “only relevant inquiry” in considering that question is how a reasonable person in Czichray’s position would have understood his situation. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); see generally Yarborough v. Alvarado, — U.S. -, ---, 124 S.Ct. 2140, 2147-50, 158 L.Ed.2d 938 (2004). In making that evaluation, we consider the totality of the circumstances that confronted the defendant at the time of questioning. United States v. Axsom, 289 F.3d 496, 500 (8th Cir.2002).

We have observed that “[t]he most obvious and effective means of demonstrating that a suspect has not been taken into custody ... is for the police to inform the suspect that an arrest is not being made and that the suspect may terminate the interview at will.” United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990) (internal quotation omitted). The FBI agents who interviewed Czichray exercised this “obvious and effective” means of demonstration in spades. Boylan and Bisswurm testified that they informed Czichray at least eight times that his participation in the interview was voluntary, and that he was free to ask the agents to leave his home. The magistrate judge recommended that “[g]iven this evidence, which is not controverted,” the district court should find that Czichray was advised of his freedom to terminate the interview at will. (Add.114). The district court ultimately found that “[a]s the Magistrate Judge noted, it is clear from the record that the agents informed Czichray several times that he could refuse to speak with them, and that he could tell them to leave.” (Add.23).

We believe that this abundant advice of freedom to terminate the encounter should not be treated merely as one equal factor in a multi-factor balancing test designed to discern whether a reasonable person would have understood himself to be in custody. That a person is told repeatedly that he is free to terminate an interview is powerful evidence that a reasonable person would have understood that he was free to terminate the interview. So powerful, indeed, that no governing precedent of the Supreme Court or this court, or any case from another court of appeals that can be located (save one decision of the Ninth Circuit decided under an outmoded standard of review, United States v. Lee, 699 F.2d 466, 467-68 (9th Cir.1982) (per curiam)), holds that a person was in custody after being clearly advised of his freedom to leave or terminate questioning.

The weighty inference that Czichray was not in custody after receiving such advice is strengthened further by the context in which the interview occurred — the living room of Czichray’s home. When a person is questioned “on his own turf,” United States v. Rorex, 737 F.2d 753, 756 (8th Cir.1984), we have observed repeatedly that the surroundings are “not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation.” United States v. Helmel, 769 F.2d 1306, 1320 (8th Cir.1985); see also United States v. Wolk, 337 F.3d 997, 1007 (8th Cir.2003); Axsom, 289 F.3d at 502; United States v. Sutera, 933 F.2d 641, 647 (8th Cir.1991). Even our court’s one brief suggestion to the contrary, see Griffin, 922 F.2d at 1355 n. 15, also cited Miranda itself for the “accepted logic” that “an interrogation in familiar surroundings such as one’s home softens the hard aspects of police interrogation and moderates a suspect’s sense of being held in custody.”

In the Supreme Court’s only decision involving whether Miranda applied to questioning of a suspect in a private home absent formal arrest, the Court concluded that the suspect “hardly found himself in the custodial situation described by the Miranda Court as the basis for its holding.” Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). Elaborating on the “custodial surroundings” described in Miranda, the Beckwith Court explained that “the principal psychological factor” of concern was “isolating the suspect in unfamiliar surroundings ‘for no purpose other than to subjugate the individual to the will of his examiner.’ ” 425 U.S. at 346 & n. 7, 96 S.Ct. 1612 (emphasis added) (quoting Miranda, 384 U.S. at 457, 86 S.Ct. 1602). The teaching of Beckwith, which involved a three-hour interrogation by two IRS agents in the dining room of a residence, was that such “noncustodial interrogation” might possibly in some situations lead to an involuntary confession inadmissible under the Fifth Amendment, id. at 347-48, 96 S.Ct. 1612, but that the prophylactic rule of Miranda was not applicable.

In reaching its conclusion that Czichray was nonetheless in custody, the district court relied on the presence of certain “coercive factors” identified in United States v. Griffin, 922 F.2d at 1349, which were said in Griffin to “aggravate the existence of custody.” Id. In Griffin, while emphasizing that our list of considerations was “merely intended to be representative of those indicia of custody most frequently cited by this and other courts when undergoing the prescribed totality of the circumstances analysis,” id., we identified six factors for consideration in making the custody determination: (1) whether the suspect was informed during the interview that the questioning was voluntary, that he could ask the officers to leave, or that he was not considered under arrest; (2) “whether the suspect possessed unrestrained freedom of movement during questioning;” (3) whether the suspect voluntarily acquiesced to official questioning or initiated contact with authorities; (4) “whether strong arm tactics or deceptive stratagems were employed during questioning;” (5) whether there was a police-dominated atmosphere; and (6) “whether the suspect was placed under arrest at the termination of the questioning.” Id. We observed that the first three factors tended to mitigate the existence of custody, while the last three tended to aggravate it. Id. Both parties debate the presence and significance of these so-called “Griffin factors” in their briefs on appeal.

Although the “non-exhaustive” Griffin factors and their attendant balancing test are often cited in our decisions concerning Miranda, we recently resolved the question of “custody” as an en banc court with nary a mention of Griffin. See United States v. LeBrun, 363 F.3d 715, 719-24 (8th Cir.2004) (en banc). There is no requirement, therefore, that the Griffin analysis be followed ritualistically in every Miranda case. When the factors are invoked, it is important to recall that they are not by any means exclusive, and that “custody” cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly. Exploring the nuances of such vague factors as “voluntary acquiescence,” “strong arm tactics,” and “police-dominated atmosphere” in order to place them on one side or the other of a balancing scale may tend to lose sight of the forest for the trees. The ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest. And the court must consider whether the historical facts, as opposed to the one-step-removed Griffin factors, establish custody. The debatable marginal presence of certain judicially-created factors that ostensibly tend to “aggravate the existence of custody” cannot create the functional equivalent of formal arrest where the most important circumstances show its absence.

The district court relied heavily on its finding that the FBI agents instructed Czi-chray not to alert others by telephone of the FBI’s presence during the interview, and escorted Czichray to his bedroom and bathroom to check for telephones before Czichray entered the rooms. There are two difficulties with this emphasis on telephones. The first is precedent. In United States v. Sutera, officers conducted a three and one-half hour search of Sutera’s apartment, and then interviewed him for one hour. They “prevented him from using his phone” during the search, and then questioned him “in isolation” in his apartment. 933 F.2d at 647. In response to Sutera’s contention that prohibition on use of the telephone was one of several factors that demonstrated custody, we found the record “devoid of any evidence showing conduct by the officers which would lead to the conclusion that Sutera was in custody.” Id. (emphasis added). Similarly, in United States v. Helmel, an FBI agent “answered all incoming telephone calls while the search and interview progressed,” but we “fail[ed] to see how this created a coercive atmosphere.” 769 F.2d at 1320.

The second difficulty presumably explains the precedent: That a suspect is discouraged from using a telephone in his home during an interview often is not probative of whether he is free to terminate the interview altogether. In this case, the FBI agents testified that they requested (or, as the district court found, “directed”) Czichray not to use the telephone to disclose the presence of FBI agents, because such disclosure would interfere with Czichray’s ability to cooperate with an ongoing investigation. If his cooperation with the FBI were known by alleged co-conspirators, then he could not assist the government (and potentially himself) through undercover telephone calls or recorded meetings with other suspects. This likely is a common request (or direction) from investigators who are soliciting cooperation. Like an effort to preserve officer safety, see Axsom, 289 F.3d at 503, however, an effort to preserve opportunities to cooperate should not be understood by a reasonable person as a restriction on movement akin to formal arrest. Assuming a reasonable person in Czichray’s position would feel that he was not free to use the telephone during the questioning, he still retained two viable options: conduct an uninterrupted interview with the agents or terminate the interview. Sutera and Helmel recognize that placing certain ground' rules on an interview does not preclude a reasonable person from foregoing the interview altogether.

We also conclude that Czichray’s lack of “voluntary acquiescence” in questioning does not tend to show that he was in custody. The district court thought the mere absence of resistance by Czichray, such as his “ma[king] no attempt to terminate the interview” and allowing the interview “to proceed to its closing,” did not “rise to the level of active cooperation” that our court has found to constitute “voluntary acquiescence” as used in the third Griffin factor. (Add. at 33-34). Whatever the Griffin court meant by “acquiescence,” cf. Webster’s Third New International Dictionary 18 (2002) (“passive assent or submission”); 1 Shorter Oxford English Dictionary 20 (5th ed. 2002) (“Silent or passive assent to, or compliance with, measures or proposals”), we conclude that the initiation of questioning by FBI agents in this case is not significant evidence of restraint on Czichray’s freedom of movement. Against a backdrop of repeated advice that he was free to terminate the interview, Czichray’s decision not to terminate the interview and to allow the interview to proceed to its closing suggests an exercise of free will, rather than restraint to a degree associated with formal arrest. Cf. Alvarado, — U.S. at -, ---, 124 S.Ct. at 2144-46, 2149-50 (where police initiated two-hour interview of suspect in police station, did not tell suspect he was free to leave, and engaged in “pretty friendly conversation” during interview, state court was clearly “reasonable” in concluding that suspect was not in custody). This is not a case where a suspect sought to exercise his option of terminating the interview, only to meet resistance from his interrogators.

Czichray argues that “threats” made by the FBI agents should be counted as a factor weighing in favor of custody. We do not believe that informing a suspect that investigation of his alleged fraud will “light up his world” by exposing his activities to his friends, family, and neighbors is a threat that aggravates the existence of custody. See United States v. Martin, 369 F.3d 1046, 1052-53, 1057 (8th Cir.2004). It is appropriate for an investigator to advise a suspect of the potential course and consequences of a criminal investigation. Suspects frequently confront difficult decisions about whether to defend against potential criminal charges or to pursue resolutions that may ameliorate certain unpleasant consequences. If the suspect’s father happens to be a witness with relevant information in such an investigation,¹ then knowledge of potential investigative activities may influence the suspect’s decision whether to short-circuit the investigation by cooperating. But the presentation of information that requires such a decision does not tend to restrain a person’s freedom of movement such that he should be deemed in custody. As we said in LeBrun, “some degree of coercion is part and parcel of the interrogation process and [] 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.” 363 F.3d at 721.

The district court’s finding that agents threatened to use the power of the FBI to prevent insurance companies from making legitimate payments to Czichray’s business is not well explained, because the statements were denied by the agents, and Czichray did not elaborate. Perhaps the point is that agents would notify insurance companies of Czichray’s fraudulent practices in the course of their investigation, in which case the insurance companies would cease dealing with Czichray of their own accord. If so, then the “interference” with business would be just another natural consequence of the doctor’s fraudulent activities coming to light. If the FBI agents misled Czichray by exaggerating their ability to control the conduct of private insurance companies (or if they really had the power to dictate non-payment of private insurance payments), then their statements might be one of many factors relating to the voluntariness of any admissions, but they would have little or no bearing on whether Czichray’s freedom of movement was restrained for purposes of the Miranda custody analysis. Cf. Oregon v. Mathiason, 429 U.S. 492, 495-96, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (“Whatever relevance [the officer’s false statement during questioning] may have to other issues in the ease, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule.”).

Where .a suspect is questioned in the familiar surroundings of his home, and informed several times of his right to terminate the interview at will, we believe that strong evidence of restraint on freedom of movement of the degree associated with a formal arrest is necessary to overcome the natural inference that such questioning is non-custodial. For the foregoing reasons, the totality of the circumstances in this case, leads us to conclude that Czichray was not the subject of custodial interrogation, and that the warnings set forth in Miranda were not required. We therefore reverse the district court’s order granting the motion to suppress Czichray’s signed statement.

1 . Agent Boylan testified as follows at the suppression hearing:

The only references that were made to [Czi-chray’s] father is he at some point told us later that his father had left — lent him some money regarding his MRI clinic, and the references were made in the sense of if we believe his father had information that’s— and that's evidence of a crime that's what we’d have to do. We’d have to go talk to that person whether it’s his father, a relative, somebody he doesn't know, or whether it’s a coemployee.

(Suppr. H'rg Tr., Vol. II at 58, Nov. 26, 2002). Agent Bisswurm testified that Czichray’s father was later interviewed, because "[djuring our interview with Dr. Czichray, he indicated his father loaned him $50,000 for his MRI business, and we went to ask him questions about that loan.” (Suppr. H'rg Tr., Vol. III. at 128, Nov. 27, 2002).