Case: 17-12712 Date Filed: 06/04/2018 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12712 Non-Argument Calendar ________________________
D.C. Docket No. 5:16-cr-00035-RH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY TERESA WHITAKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(June 4, 2018)
Before MARTIN, JILL PRYOR, and EDMONDSON, Circuit Judges. Case: 17-12712 Date Filed: 06/04/2018 Page: 2 of 9
PER CURIAM:
Tracy Whitaker appeals her convictions for theft of government funds, 18
U.S.C. § 641, and for making false statements, 18 U.S.C. § 1001(a). Briefly stated,
Whitaker’s convictions stem from her misuse of Social Security disability benefits
she received on behalf of her minor daughter (as her daughter’s representative
payee). Whitaker was sentenced to three years’ probation and ordered to pay
restitution. No reversible error has been shown; we affirm.
I.
Whitaker first contends that the district court erred in denying her motion to
suppress statements she made during interviews with Social Security
Administration (“SSA”) claims specialist Orietta Escarra and with SSA Special
Agent Phillip Krieger. Whitaker challenges the district court’s determination that
she was not in custody when the statements were made and, thus, that she was
unentitled to an advisement of her rights under Miranda v. Arizona, 384 U.S. 436
(1966). *
* Whitaker makes no substantive argument on appeal challenging the district court’s determination that her statements were made voluntarily. 2 Case: 17-12712 Date Filed: 06/04/2018 Page: 3 of 9
We review the denial of a motion to suppress as a mixed question of law and
fact; we review fact findings for clear error and the application of law to the facts
de novo. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). We
construe all facts in the light most favorable to the party that prevailed in district
court. Id.
After Escarra received information from private citizens indicating that
Whitaker was misusing SSA benefits intended for Whitaker’s minor daughter,
Escarra contacted Whitaker to arrange an interview. Whitaker was told that failure
to attend the interview would result in a suspension of her daughter’s benefits.
Whitaker was not told, however, about the allegations of fraud or that she was the
target of an investigation.
The interview was conducted in a “standard office” that contained a desk, a
computer, and chairs. The office had two doors: one leading directly to the lobby
of the SSA building and one leading to the building’s interior. During the
interview, Escarra sat at the desk in front of the computer, while Whitaker sat in a
chair on the opposite side of the desk. Escarra asked Whitaker basic questions
similar to those listed on the routine SSA representative payee reports. In response
to Escarra’s questions, Whitaker reported falsely that her daughter lived with her
and that she used her daughter’s SSA benefits to pay for her daughter’s care and
maintenance.
3 Case: 17-12712 Date Filed: 06/04/2018 Page: 4 of 9
After about 30 minutes of questioning, Escarra excused herself and returned
5 minutes later with Agent Krieger. Agent Krieger sat in a chair at the end of the
desk. Agent Krieger identified himself as a law enforcement officer and told
Whitaker he wanted to interview her. Agent Krieger told Whitaker expressly that
she was not under arrest and that she was free to leave. Agent Krieger also
presented Whitaker with a non-custodial advisement-of-rights form. Agent
Krieger read -- and Whitaker said she understood -- each section of the one-page
form. Among other things, the form advised Whitaker that she was not in custody,
that she had the right to remain silent, that she was not required to make a
statement, and that she was free to leave or to terminate the interview at any time.
Upon Whitaker’s request, Agent Krieger prepared a written statement based
on Whitaker’s responses during the interview. In her written statement, Whitaker
admitted that her daughter lived solely with her father, that Whitaker reported
falsely to the SSA that her daughter lived with her so that Whitaker could continue
to receive SSA payments on her daughter’s behalf, and that she had been using the
SSA payments to pay for her own living expenses. When the interview was over,
Agent Krieger went over each paragraph of the written statement; and Whitaker
confirmed that the statement was accurate and that she wanted to add, change, or
remove nothing. Agent Krieger’s interview lasted about one hour.
4 Case: 17-12712 Date Filed: 06/04/2018 Page: 5 of 9
That Whitaker was not advised of her Miranda rights is undisputed. A
Miranda warning is required, however, only when a person is “in custody” when
they made the challenged statement. United States v. Muegge, 225 F.3d 1267,
1269-70 (11th Cir. 2000). A person is considered “in custody” for purposes of
triggering Miranda warnings when “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 (1983) (quotation omitted). In determining whether a person
was “in custody,” we consider whether -- given the totality of the circumstances --
a reasonable innocent person “in the suspect’s position would feel a restraint on his
freedom of movement fairly characterized as that degree associated with a formal
arrest to such extent that he would not feel free to leave.” Muegge, 225 F.3d at
1270 (quotations omitted).
Factors that bear on whether a person is in custody include “whether the
officers brandished weapons, touched the suspect, or used language or a tone that
indicated that compliance with the officers could be compelled, as well as the
location and length of the detention.” United States v. Luna-Encinas, 603 F.3d
876, 881 (11th Cir. 2010) (citation and quotation omitted). We may also consider
other things: for example, statements made during the interview, the presence of
physical restraints during questioning, and “the release of the interviewee at the
end of the questioning.” Howes v. Fields, 565 U.S. 499, 509 (2012). Moreover,
5 Case: 17-12712 Date Filed: 06/04/2018 Page: 6 of 9
“that an individual is told he is not under arrest and is free to leave is a fact of
substantial importance in determining whether a reasonable person would have felt
free to leave.” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006).
Considering the totality of the circumstances, we conclude that Whitaker
was not “in custody” during her interviews with Escarra or with Agent Krieger
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Case: 17-12712 Date Filed: 06/04/2018 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-12712 Non-Argument Calendar ________________________
D.C. Docket No. 5:16-cr-00035-RH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRACY TERESA WHITAKER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(June 4, 2018)
Before MARTIN, JILL PRYOR, and EDMONDSON, Circuit Judges. Case: 17-12712 Date Filed: 06/04/2018 Page: 2 of 9
PER CURIAM:
Tracy Whitaker appeals her convictions for theft of government funds, 18
U.S.C. § 641, and for making false statements, 18 U.S.C. § 1001(a). Briefly stated,
Whitaker’s convictions stem from her misuse of Social Security disability benefits
she received on behalf of her minor daughter (as her daughter’s representative
payee). Whitaker was sentenced to three years’ probation and ordered to pay
restitution. No reversible error has been shown; we affirm.
I.
Whitaker first contends that the district court erred in denying her motion to
suppress statements she made during interviews with Social Security
Administration (“SSA”) claims specialist Orietta Escarra and with SSA Special
Agent Phillip Krieger. Whitaker challenges the district court’s determination that
she was not in custody when the statements were made and, thus, that she was
unentitled to an advisement of her rights under Miranda v. Arizona, 384 U.S. 436
(1966). *
* Whitaker makes no substantive argument on appeal challenging the district court’s determination that her statements were made voluntarily. 2 Case: 17-12712 Date Filed: 06/04/2018 Page: 3 of 9
We review the denial of a motion to suppress as a mixed question of law and
fact; we review fact findings for clear error and the application of law to the facts
de novo. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). We
construe all facts in the light most favorable to the party that prevailed in district
court. Id.
After Escarra received information from private citizens indicating that
Whitaker was misusing SSA benefits intended for Whitaker’s minor daughter,
Escarra contacted Whitaker to arrange an interview. Whitaker was told that failure
to attend the interview would result in a suspension of her daughter’s benefits.
Whitaker was not told, however, about the allegations of fraud or that she was the
target of an investigation.
The interview was conducted in a “standard office” that contained a desk, a
computer, and chairs. The office had two doors: one leading directly to the lobby
of the SSA building and one leading to the building’s interior. During the
interview, Escarra sat at the desk in front of the computer, while Whitaker sat in a
chair on the opposite side of the desk. Escarra asked Whitaker basic questions
similar to those listed on the routine SSA representative payee reports. In response
to Escarra’s questions, Whitaker reported falsely that her daughter lived with her
and that she used her daughter’s SSA benefits to pay for her daughter’s care and
maintenance.
3 Case: 17-12712 Date Filed: 06/04/2018 Page: 4 of 9
After about 30 minutes of questioning, Escarra excused herself and returned
5 minutes later with Agent Krieger. Agent Krieger sat in a chair at the end of the
desk. Agent Krieger identified himself as a law enforcement officer and told
Whitaker he wanted to interview her. Agent Krieger told Whitaker expressly that
she was not under arrest and that she was free to leave. Agent Krieger also
presented Whitaker with a non-custodial advisement-of-rights form. Agent
Krieger read -- and Whitaker said she understood -- each section of the one-page
form. Among other things, the form advised Whitaker that she was not in custody,
that she had the right to remain silent, that she was not required to make a
statement, and that she was free to leave or to terminate the interview at any time.
Upon Whitaker’s request, Agent Krieger prepared a written statement based
on Whitaker’s responses during the interview. In her written statement, Whitaker
admitted that her daughter lived solely with her father, that Whitaker reported
falsely to the SSA that her daughter lived with her so that Whitaker could continue
to receive SSA payments on her daughter’s behalf, and that she had been using the
SSA payments to pay for her own living expenses. When the interview was over,
Agent Krieger went over each paragraph of the written statement; and Whitaker
confirmed that the statement was accurate and that she wanted to add, change, or
remove nothing. Agent Krieger’s interview lasted about one hour.
4 Case: 17-12712 Date Filed: 06/04/2018 Page: 5 of 9
That Whitaker was not advised of her Miranda rights is undisputed. A
Miranda warning is required, however, only when a person is “in custody” when
they made the challenged statement. United States v. Muegge, 225 F.3d 1267,
1269-70 (11th Cir. 2000). A person is considered “in custody” for purposes of
triggering Miranda warnings when “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 (1983) (quotation omitted). In determining whether a person
was “in custody,” we consider whether -- given the totality of the circumstances --
a reasonable innocent person “in the suspect’s position would feel a restraint on his
freedom of movement fairly characterized as that degree associated with a formal
arrest to such extent that he would not feel free to leave.” Muegge, 225 F.3d at
1270 (quotations omitted).
Factors that bear on whether a person is in custody include “whether the
officers brandished weapons, touched the suspect, or used language or a tone that
indicated that compliance with the officers could be compelled, as well as the
location and length of the detention.” United States v. Luna-Encinas, 603 F.3d
876, 881 (11th Cir. 2010) (citation and quotation omitted). We may also consider
other things: for example, statements made during the interview, the presence of
physical restraints during questioning, and “the release of the interviewee at the
end of the questioning.” Howes v. Fields, 565 U.S. 499, 509 (2012). Moreover,
5 Case: 17-12712 Date Filed: 06/04/2018 Page: 6 of 9
“that an individual is told he is not under arrest and is free to leave is a fact of
substantial importance in determining whether a reasonable person would have felt
free to leave.” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006).
Considering the totality of the circumstances, we conclude that Whitaker
was not “in custody” during her interviews with Escarra or with Agent Krieger
and, thus, no Miranda warning was required. The interviews took place in a
standard office space located just off the lobby of the SSA building, that is, with
easy means to leave. During the interviews, Escarra, Agent Krieger and Whitaker
were seated in chairs around a desk. Nothing evidences that either Escarra or
Agent Krieger brandished a weapon, touched Whitaker, placed Whitaker in
restraints, or otherwise threatened or intimidated Whitaker verbally or physically.
Whitaker was also permitted to leave the room and the SSA building after the
interview concluded.
During her interview with Escarra, Whitaker was asked only routine
questions about SSA benefits. On this record, a reasonable innocent person in
Whitaker’s position would not have felt a restraint on her freedom of movement to
the degree associated with a formal arrest.
About Whitaker’s interview with Agent Krieger, Agent Krieger told
Whitaker expressly that she was not under arrest, opened and closed the door to
show her she could leave, and told her she was free to go at any time if she did not
6 Case: 17-12712 Date Filed: 06/04/2018 Page: 7 of 9
want to speak with him. Agent Krieger also read Whitaker a non-custodial
advisement-of-rights form, which advised expressly that Whitaker was free to
leave or to terminate the interview at any time. Both Agent Krieger’s conduct and
this form statement constitute strong evidence that a reasonable innocent person in
Whitaker’s situation would have felt free to leave. See Brown, 441 F.3d at 1347
(“absent a finding of restraints that are so extensive that telling the suspect he was
free to leave could not cure the custodial aspect of the interview,” such
advisements generally “lead to the conclusion that the defendant is not in custody.”
(emphasis in original)). Whitaker also testified that Agent Krieger was “very nice”
during the interview, and nothing evidences that Agent Krieger engaged in
threatening or coercive conduct. Under these circumstances, an objectively
reasonable innocent person would have felt free to leave. That Whitaker may have
felt subjectively compelled to comply with Escarra and with Agent Krieger out of
concern about losing her or her daughter’s SSA benefits does not change our
conclusion. See Oregon v. Elstad, 470 U.S. 298, 304-05 (1985) (noting that the
Fifth Amendment is not implicated by “moral and psychological pressures to
confess emanating from sources other than official coercion.”).
Because Whitaker was not “in custody” when she made her statements to
Escarra and to Agent Krieger, a Miranda warning was not mandated; no
7 Case: 17-12712 Date Filed: 06/04/2018 Page: 8 of 9
constitutional violation occurred. The district court committed no error in denying
Whitaker’s motion to suppress.
II.
Whitaker also challenges the district court’s denial of her motion for
judgment of acquittal. In support of her motion, Whitaker argued that the
government failed to prove that the SSA payments constituted “property of the
United States” for purposes of 18 U.S.C. § 641 after they were deposited in her
bank account.
“We review de novo a district court’s denial of a motion for judgment of
acquittal, viewing the evidence in the light most favorable to the government and
drawing all reasonable inferences in favor of the jury’s verdict.” United States v.
Slaton, 801 F.3d 1308, 1313 (11th Cir. 2015). To sustain a conviction under 18
U.S.C. § 641, the government must establish beyond a reasonable doubt that (1)
the property belonged to the government; (2) the defendant appropriated
fraudulently the property for her own use; and (3) the defendant did so knowingly
and willfully with the intent to either temporarily or permanently deprive the
owner of the use of the property. United States v. McRee, 7 F.3d 976, 980 (11th
Cir. 1993) (en banc). Only the first element is at issue here.
8 Case: 17-12712 Date Filed: 06/04/2018 Page: 9 of 9
In the light of our decision in McRee, we reject Whitaker’s argument that
the SSA payments once deposited into her bank account were no longer
government property. In McRee, we concluded that the government retained a
property interest in the proceeds of an erroneously issued check, even when the
recipient did nothing to induce the issuance of the check. Id. at 981-82. In this
case -- unlike the defendant in McRee -- Whitaker admitted that she made
intentionally and knowingly false statements to the SSA to induce the SSA to
continue sending her daughter’s SSA benefits to Whitaker. Whitaker said she
knew the SSA would stop sending payments if she reported truthfully that her
daughter no longer lived with her and that she had been using her daughter’s SSA
benefits for her own living expenses. Because Whitaker failed to comply with her
duties as a representative payee and was in fact unentitled to receive SSA
payments on behalf of her daughter, the SSA benefits were issued to Whitaker in
error. On this record, we conclude that the government retained a property interest
in the proceeds of the erroneously-issued SSA payments even after they were
deposited into Whitaker’s bank account. See id. The district court committed no
error in denying Whitaker’s motion for judgment of acquittal.
AFFIRMED.