                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 05-2861
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

RIAKOS BARKER,
                                           Defendant-Appellant.
                         ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, Fort Wayne Division.
          No. 03 CR 12—Theresa L. Springmann, Judge.
                         ____________
 ARGUED SEPTEMBER 25, 2006—DECIDED OCTOBER 30, 2006
                   ____________


  Before BAUER, KANNE, and WOOD, Circuit Judges.
  BAUER, Circuit Judge. A jury convicted Riakos Barker of
being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1) and two counts of aiding and abetting
a straw purchase in violation of 18 U.S.C. § 924(a)(1-2).
Barker was sentenced to 108 months of imprisonment.
On appeal, Barker argues that (1) the district court erred in
denying his motion to suppress; (2) the government violated
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.
2d 215 (1963), by failing to provide a witness statement
until the first day of trial; and (3) his due process rights
were violated by the enhancement of his sentence. We
affirm.
2                                              No. 05-2861

                     I. Background
   On March 12, 2001, Nykisha Lovelace purchased two
firearms for Riakos Barker (“Barker”) from K’s Merchandise
in Fort Wayne, Indiana. Barker’s sister, Korendi Barker
(“Korendi”), had given Lovelace her gun permit to make
purchases. A Bureau of Alcohol, Tobacco, and Firearms
(“ATF”) investigation later uncovered that of eight guns
that had been purchased by women between March 8 and
March 16 in Fort Wayne, five were used in crimes in
Detroit, Michigan, including the guns purchased by Lovelace.
  During the ATF’s investigation of the weapons pur-
chases, Special Agent Sean Skender obtained statements
from Korendi and Lovelace, implicating Barker. Agent
Skender then sought out Barker, leaving business cards
with his contact information at several locations. When
Barker and Agent Skender eventually made contact, Agent
Skender informed Barker that he wanted to discuss gun
purchases. They arranged to meet at the ATF field office
in Fort Wayne on February 26, 2003.
  When Barker arrived for the meeting, he was buzzed
through the front door and led to a nearby conference
room. Barker sat at the end of a conference table near the
closed but unlocked door. Barker was not physically
restrained and no guns were brandished. Special Agents
Skender and John Phinney identified themselves by
badge and credentials. Agent Skender advised Barker
that he was not under arrest, was free to go at any time,
and did not have to answer any questions. Barker was not
informed that he had a right to an attorney. During the
interview, Barker’s answers were responsive, and he
never asked to leave or declined to answer any questions.
  Based on statements from Korendi and Lovelace, Agent
Skender believed that Barker was not telling the truth.
Agent Skender then told Barker that “gun stores video-
taped” and glanced at two videotapes sitting on the confer-
No. 05-2861                                                 3

ence room table, even though there was no videotape of the
gun transactions for which Barker was eventually charged.
Agent Skender also said that it would be a shame for his
sister to testify against him with his mother watching.
Barker responded that he wanted to tell the truth and
confessed his involvement in the gun purchases. At the end
of the interview, Barker was escorted to one of the outer
doors and left the ATF office.
  On March 26, 2003, Barker was indicted with five
counts of aiding and abetting another who knowingly
made a false statement and representation in violation
of 18 U.S.C. § 924(a)(1-2) and a single count of being a felon
in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). On January 8, 2004, Barker filed a motion to
suppress his statements, contending that he was subject
to a custodial interrogation without being informed his
Miranda rights. The district court denied this motion,
holding that based on the totality of the circumstances
Barker was not in custody.
   After several appointed attorneys withdrew, Robert W.
Gevers, II was appointed to represent Barker. Gevers was
the former Allen County Prosecuting Attorney, whose office
previously prosecuted Barker. In multiple pro se filings
made shortly after trial, Barker questioned whether his
trial counsel had represented him loyally and zealously.
Initially, Barker raised this issue on appeal but withdrew
it during oral argument, reserving it for a habeas corpus
petition.
  On May 21, 2004, the government received an affidavit
from Korendi in which she recanted any incriminating
statements she had made against Barker. The same day,
the government dismissed three of the six counts that
were based on Korendi’s testimony.
  The case proceeded to trial. After testimony from an ATF
4                                                No. 05-2861

inspector and Lovelace, the government called Agent
Skender to the stand. During the cross examination of
Agent Skender, he testified that he had located the K’s
Merchandise clerk, Amanda Diers who had sold the guns to
Lovelace and prepared a report summarizing her state-
ments. This report had not been disclosed previously to
defense counsel. The district court reviewed the report in
camera and then ordered that a copy of the report
be provided to the defense. In the report, Diers stated
that she recalled that the purchaser was buying guns for
her boyfriend, not Barker. After Gevers reviewed the report,
he moved for a mistrial. The district court recessed early for
the day giving Gevers the opportunity to interview Diers
and took the motion for mistrial under advisement. The
next day, Gevers indicated that he had spoken to Diers and
was withdrawing his motion for mistrial. Diers testified at
trial consistent with Agent Skender’s report. She also
testified that during the transaction, there were two
females, one male, and one child present and that the male,
whom she did not recognize as Barker, was “just there.”
   The jury found Barker guilty of the three remaining
counts. At sentencing, Barker argued for a downward
departure from the sentencing guidelines based on family
obligations, in particular the health and medical needs of
his daughter. The district court rejected this request.
Instead, the district court enhanced his sentence based on
testimony from Agent Skender, Lovelace, and Korendi
that established that there were eight total guns involved
in the scheme. Specifically, Agent Skender testified that
Barker admitted to purchasing, or having Korendi purchase
firearms. Agent Skender also testified that eight firearm
transaction records, known as Forms 4473’s, named
Korendi as the purchaser. Lovelace testified that she had
made two purchases for Barker, and Korendi initially had
admitted to ATF agents that she had made the other six
purchases. While Korendi later recanted this statement in
No. 05-2861                                                 5

an affidavit, the district court did not find Korendi’s
affidavit credible.
   The district court also enhanced Barker’s sentence on the
grounds that he had obstructed justice and had been
an “organizer or leader” of the criminal activity. The
obstruction of justice enhancement was based on a recorded
jail call between Barker and Kenosha Haney and testimony
from Korendi at the sentencing hearing. In the call, Barker
asked Haney if Korendi was there and then gave Korendi
specific instructions as to what her affidavit was to include,
how it was to be executed, and how it was to be signed and
filed. Barker was sentenced to 60 months of imprisonment
on Counts 1 and 2 and 108 months of imprisonment on
Count 3, all to run concurrently. Barker timely appealed.


                      II. Discussion
  A. Motion to Suppress
  Barker asserts that the district court erred by denying his
motion to suppress. He claims that his Fifth Amendment
right against self-incrimination was violated when he was
subjected to a custodial interrogation without being advised
of his constitutional rights as required by Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). A suspect interrogated by law enforcement officers
while in custody must be notified of his constitutional rights
to counsel and against self-incrimination. Id. at 444.
However, “Miranda warnings are not required merely
because the individual questioned by law enforcement
officers is a suspect or is the focus of a criminal investiga-
tion.” United States v. Jones, 21 F.3d 165, 170 (7th Cir.
1994). The “suspect must be both ‘in custody’ and subjected
to ‘interrogation’ before the Miranda warning are required
to be administered.” United States v. Abdulla, 294 F.3d 830,
834 (7th Cir. 2002).
6                                                No. 05-2861

  A custodial interrogation occurs when there is “question-
ing initiated by law enforcement officers after a person has
been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Miranda, 384
U.S. at 444. “This inquiry is determined from the view of
‘how a reasonable man in the suspect’s position would
have understood his situation.’ ” Jones, 21 F.3d at 170
(quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct.
3138, 82 L. Ed. 2d 317 (1984)). “A totality of the circum-
stances test is used to determine whether a reasonable
person would have believed he or she was free to leave.”
United States v. Lennick, 917 F.2d 974, 977 (7th Cir. 1990).
In considering the totality of the circumstances, factors
include
    (1) whether the encounter occurred in a public place; (2)
    whether the suspect consented to speak with the
    officers; (3) whether the officers informed the individual
    that he was not under arrest and was free to leave; (4)
    whether the individuals were moved to another area;
    (5) whether there was a threatening presence of several
    officers and a display of weapons or physical force;
    (6) whether the officers deprived the defendant of
    documents she needed to continue on her way; and (7)
    whether the officers’ tone of voice was such that their
    requests would likely be obeyed.
United States v. Wyatt, 179 F.3d 532, 535 (7th Cir. 1999).
  The district court correctly determined that based on
the totality of the circumstances Barker was not in
custody and, as such, the agents were not required to
inform him of his Miranda rights. Barker voluntarily
came to the ATF office, was informed that he was not under
arrest and consented to speak with the officers. He was not
deprived of his freedom, and there was no threatening
presence of officers. Additionally, Agent Skender’s false
implication that he had a videotape of Barker did not
No. 05-2861                                                7

render the interrogation custodial. See Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d
714 (1977) (finding that officer’s false statement that
defendant’s fingerprints were found at the crime scene
had “nothing to do with whether respondent was in custody
for purposes of Miranda rule”). Accordingly, although
Barker was a suspect, Miranda warnings were not required
because Barker was not in custody.


  B. Exculpatory Material
   Barker next claims that his right to a fair trial was
prejudiced because the government failed to timely disclose
Agent Skender’s report containing exculpatory information.
Barker also asserts that he was further prejudiced by his
inability to impeach Diers with the statement. In Brady v.
Maryland, the Supreme Court held that “the suppression by
the prosecution of evidence favorable to an accused . . .
violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady, 373 U.S. at 87. How-
ever, “evidence for Brady purposes is deemed ‘suppressed’
if (1) the prosecution failed to disclose the evidence before
it was too late for the defendant to make use of the evi-
dence, and (2) the evidence was not otherwise available to
the defendant through the exercise of reasonable diligence.”
United States v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002).
We review claims under Brady raised for the first time on
appeal for plain error. United States v. Stott, 245 F.3d 890,
900 (7th Cir. 2001). We find that there was no plain error.
  Though discovered at trial, the defense had sufficient
time to make use of Agent Skender’s report. Gevers had
time to find Diers, interview her, and call her as a witness.
In fact, Gevers used both the report and Diers’ testimony in
support of his defense. Gevers even recalled Agent Skender
as a witness to question him on his failure to disclose the
8                                               No. 05-2861

report. Therefore, the government’s failure to disclose Agent
Skender’s report earlier did not rise to the level of a Brady
violation because it was not too late for the defense to make
use of the evidence.


    C. Sentencing
  Finally, Barker asserts that the district court erred by
enhancing his sentence based on unreliable evidence in
violation of his right to due process. All that due process
requires is that a defendant “be sentenced on the basis
of reliable information.” United States v. Smith, 3 F.3d
1088, 1100 (7th Cir. 1993) (quoting United States v. Camp-
bell, 985 F.2d 341, 348 (7th Cir. 1993)). To successfully
challenge his sentence, Barker must demonstrate that the
information was inaccurate and that the court relied on it.
United States v. Amaya, 32 F.3d 308, 314 (7th Cir. 1994).
The district court enhanced Barker’s sentence based on its
finding that there were eight firearms involved in the
scheme. We find that there was no clear error of the factual
findings of the district court.
  The ATF agents testimony was corroborated by Lovelace’s
trial testimony and Korendi’s grand jury testimony. Al-
though Korendi recanted her statement, the district court
found that her affidavit was not credible. We will not
disturb the district court’s credibility findings.
  The district court also enhanced Barker’s sentence for
obstruction of justice. The finding was contrary to Korendi’s
testimony at the sentencing hearing, that she was not
pressured by Barker to sign the affidavit. Instead, the
district court credited testimony from the motion to sup-
press hearing, Korendi’s sentencing agreement, and grand
jury testimony, along with the recorded jail call. We find
that the district court properly relied on this evidence to
enhance Barker’s sentence as Barker failed to show that
such evidence was unreliable.
No. 05-2861                                           9

                  III. Conclusion
 Accordingly, the judgment of the district court is
AFFIRMED.

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                USCA-02-C-0072—10-30-06
