                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 98-1564MN
                                  _____________

United States of America,               *
                                        *
             Appellee,                  *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the District of
                                        * Minnesota.
George Gerald Chamberlain,              *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 20, 1998
                                 Filed: December 24, 1998
                                  ___________

Before BOWMAN, Chief Judge, BRIGHT and RICHARD S. ARNOLD, Circuit
      Judges.
                            ___________

RICHARD S. ARNOLD, Circuit Judge.


       A jury convicted George Gerald Chamberlain of conspiracy to distribute child
pornography, in violation of 18 U.S.C. § 371, and possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B). Chamberlain was sentenced to seven years and
three months (87 months) in prison, to be followed by a three-year term of supervised
release, to commence at the conclusion of a sentence Chamberlain is currently serving
for a separate crime. Chamberlain appeals his conviction and sentence on a number
of


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grounds, including the admission of statements he made to state prison officials who
failed to precede their questioning with a Miranda warning. We believe that
Chamberlain’s statements were made while he was in custody for Miranda purposes.
We therefore reverse on the Miranda issue and remand for a new trial.

                                           I.

        While serving a prison sentence for criminal sexual conduct, Chamberlain
worked at Insight, a nonprofit corporation operating in the Minnesota state prison
facilities. Inmates in the Insight program did telemarketing and computer
programming work on contracts Insight made with various companies. The money
Insight earned on the contracts was used to fund college programs for the inmates in
the program. (Trial Tr. 49-50.) Chamberlain had his own office within the Insight
offices in the prison, as well as his own computer. (Trial Tr. 41.) In November 1994,
a news report alleging financial misconduct within the Insight program resulted in an
administrative investigation of the program. During a search of the Insight offices,
Department of Corrections investigators found lists of children’s names and addresses,
and an optical disk which they suspected contained child pornography, in
Chamberlain’s office. (Trial Tr. 45-46.)

       As part of the investigation, investigators interviewed all of the prison inmates
taking part in the program, including Chamberlain. (Trial Tr. 43.) The statements
Chamberlain sought to suppress on Miranda grounds were made during two interviews
in which Chamberlain was questioned by investigators. The Miranda issue turns on
the circumstances of these interviews – on whether Chamberlain was “in custody” as
defined by Miranda and its progeny. We therefore state in some detail the facts related
to the interviews, culled from both the pretrial motion hearing and the trial itself.

       The interviews took place in the Insight offices, inside the prison. Special
investigator Mark Freer conducted Chamberlain’s first interview. Because the Insight




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offices were secured during the investigation, any inmate brought in for an interview
had to be escorted to the offices. (Pretrial Mot. Hr’g Tr. 111.) During the pretrial
motion hearing Freer testified that although he did not recall how Chamberlain arrived
for his interview, Freer generally either brought the inmates down to the offices
himself or had another officer bring them down. Freer would then usually meet the
officer halfway. (Pretrial Mot. Hr’g Tr. 95.) The interview took place in an office
located near Chamberlain’s own office. The door to the room was closed but
unlocked. Chamberlain was not restrained in any way, and Freer displayed no
weapons. (Pretrial Mot. Hr’g Tr. 95-97.) At no time during this interview, or the
interview which followed later, did any investigator give Chamberlain a Miranda
warning.

        Towards the end of the interview, Freer asked Chamberlain about the child lists
found in Chamberlain’s office. Chamberlain denied any knowledge of the lists. (Trial
Tr. 138.) Later the same day, however, in a second interview conducted by Steven
Ayers, another special investigator employed by the Department of Corrections,
Chamberlain admitted that he lied to Freer in the earlier interview and admitted
knowledge of the lists. (Trial Tr. 155.) After the interview, Ayers told Chamberlain
that he was going to be placed in administrative segregation and transferred to the
Stillwater Correctional Facility. The Stillwater facility is a higher-level security
facility than the Lino Lakes facility, where Chamberlain was then imprisoned. (Trial
Tr. 21.) Chamberlain then indicated that he wanted to contact an attorney and was no
longer willing to conduct further interviews. (Pretrial Mot. Hr’g Tr. 125.)

        Chamberlain filed a pretrial motion to suppress the statements he made
regarding the child lists. A magistrate judge, believing that Chamberlain was not “in
custody” for Miranda purposes, recommended denying the motion, and the District
Court adopted the recommendation. Tapes of Chamberlain’s interviews were played
for the jury at Chamberlain’s trial, including portions of the interviews related to the
child lists. (Trial Tr. 135, 159.) Additionally, the government discussed the lists in its
closing argument. (Trial Tr. 894-95.) Chamberlain argues on appeal that the
statements should not have




                                           -3-
been admitted into evidence because the statements were made during a custodial
interrogation not preceded by a Miranda warning.

                                           II.

       We review the District Court’s findings concerning custody under a clearly
erroneous standard. See United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990).
And we will affirm that decision “unless the decision . . . is unsupported by substantial
evidence, based on an erroneous interpretation of applicable law, or in light of the
entire record we are left with a firm and definite conviction that a mistake has been
made.” Id. at 1348 (quoting United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.
1989)). We believe, in this case, that a mistake has been made.

       A Miranda warning must precede any custodial interrogation. A custodial
interrogation involves “questioning 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 v. Arizona, 384 U.S. 436, 444 (1966). An individual
already in prison on another matter at the time of questioning is not necessarily,
however, “in custody” for Miranda purposes. The mere fact of incarceration does not
ipso facto render an interrogation custodial. Leviston v. Black, 843 F.2d 302, 304 (8th
Cir. 1988) (citing Flittie v. Solem, 775 F.2d 933, 944 (8th Cir. 1985) (en banc)). A
number of other circuits have a similar rule. See United States v. Menzer, 29 F.3d
1223, 1231 (7th Cir. 1994) (citing cases). This does not mean, however, that the fact
of incarceration is irrelevant. “The relevant inquiry is whether a reasonable man in the
suspect’s position would have understood himself to be in custody.” Leviston, 843
F.2d at 304 (citing Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). That inquiry
must include consideration of the fact of incarceration. The Supreme Court has
indicated that when the individual being questioned is already in prison, “[q]uestioning
by captors, who appear to control the suspect’s fate, may create mutually reinforcing




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pressures that . . . will weaken the suspect’s will.” Illinois v. Perkins, 496 U.S. 292,
297 (1990).1

       Leviston established that incarceration does not necessarily render an
interrogation custodial. But in that case, Leviston asked to speak to the police about
a robbery for which he was later convicted. At the time Leviston initiated the
interviews, he was incarcerated on an unrelated matter. During Leviston’s
conversations with the police, and prior to any Miranda warning, Leviston made
statements which were later introduced at his trial for the robbery. The District Court
found that Leviston initiated the interviews with the police, voluntarily went to the
interview room, was free to end the conversations at any time, and was allowed to
leave upon request. Leviston was therefore not “in custody” during questioning, and
no Miranda warning was required.2 Leviston, 843 F.2d at 303-04.

       We adhere to the rule set forth in Leviston that a Miranda warning is not
automatically required when questioning an inmate. Chamberlain’s situation, however,
differs from Leviston’s because Chamberlain did not initiate the conversations with
Freer and Ayers. We therefore proceed to examine the other relevant circumstances.

                                          III.

     In determining whether Freer’s and Ayers’s conversations with Chamberlain
amounted to custodial interrogation, we are “concerned with the suspect’s subjective




      1
        The Court in Perkins held that undercover questioning of an inmate did not
require a Miranda warning because the suspect did not know he was talking with a
government agent. Perkins, 496 U.S. at 297. Chamberlain, however, knew he was
talking with prison officials.
      2
       Leviston was given a Miranda warning, but only after he made a “potentially
incriminating . . . statement.” Leviston, 843 F.2d at 303.

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belief that ‘his freedom of action is curtailed to a degree associated with formal arrest’
and whether that belief is objectively reasonable under the circumstances.” Griffin,
922 F.2d at 1349 (citing Berkemer, 468 U.S. at 439, quoting California v. Beheler, 463
U.S. 1121, 1125 (1983)). A determination of how a reasonable person would have felt
in this situation – whether a reasonable person would have thought he was in custody
– requires close consideration both of how Chamberlain got to the interview room and
of the atmosphere of the interviews once Chamberlain arrived for, and during,
questioning.

     The six factor analysis set out in United States v. Griffin provides guidance in
making this determination:

             (1) whether the suspect was informed at the time of questioning
             that the questioning was voluntary, that the suspect was free to
             leave or request the officers to do so, or that the suspect was not
             considered under arrest;

             (2) whether the suspect possessed unrestrained freedom of
             movement during questioning;

             (3) whether the suspect initiated contact with authorities or
             voluntarily acquiesced to official requests to respond to questions;

             (4) whether strong arm tactics or deceptive stratagems were
             employed during questioning;

             (5) whether the atmosphere of the questioning was police
             dominated; or,

             (6) whether the suspect was placed under arrest at the termination
             of the questioning.




                                           -6-
Griffin, 922 F.2d at 1349. All six of these factors need not be present for a finding of
custody requiring a Miranda warning. Nor is this list exhaustive. See id. The custody
issue ultimately “focuses upon the totality of the circumstances.” Jenner v. Smith, 982
F.2d 329, 335 (8th Cir. 1993).

       The District Court apparently adopted the magistrate judge’s recommended
finding that “[Chamberlain] was not brought to the interview room under force, or
escort.” (Report and Recommendation 27.) This finding is not supported by the
record. Although it may be unclear exactly how Chamberlain arrived for, or was
brought to, the interview, there is no doubt that someone did escort Chamberlain to the
interview.

       Both Freer and Ayers testified at the pretrial motion hearing that they did not
remember how Chamberlain got to the interview room. Freer testified that he brought
many of the inmates down to the office for interviews himself or had an officer bring
them down. When the officer brought them down, “most of the time” Freer would
meet the officer halfway. (Pretrial Mot. Hr’g Tr. 95.) Freer further testified, on cross-
examination, that the area in which they conducted the interviews was a “secure area”
and anybody entering the area “be it civilian or an inmate, would be escorted.”
(Pretrial Mot. Hr’g Tr. 111.) Ayers testified that he himself did not go get
Chamberlain, but that Chamberlain was “summoned” to the interview. (Pretrial Mot.
Hr’g Tr. 142-43.) Chamberlain may have had the freedom to move around within
some areas of the prison, but Freer and Ayers conducted the interviews in a secure
area, which Chamberlain could not have entered on his own. (Pretrial Mot. Hr’g Tr.
111, 137.) There is no indication that any inmate interviewed by Freer or Ayers during
the Insight investigation walked to the interview room of his own accord, without
escort from one of the investigators or a prison guard.

       Other circumstances also suggest that Chamberlain was the subject of a custodial
interrogation. At no time did Freer, Ayers, or any other prison official, tell




                                          -7-
Chamberlain that the questioning was voluntary or that he was free to leave the
interview at any time. In fact, if Chamberlain had refused to appear for the interview
or had left the interview without permission, he would have violated prison rules.
During Ayers’s cross-examination at the pretrial motion hearing, Ayers testified
regarding violation of prison rules:

             Mr. Kushner (for the defense): And when someone who
             works for the Department of Corrections asks an inmate to
             do something then they have to do it, right?

             Ayers: Yes.

             Q: If they don’t do something that a corrections staff person
             or official tells them to do that could be a rule violation,
             right, it’s called disobeying a direct order?

             A: Correct.


(Pretrial Mot. Hr’g Tr. 137.) Chamberlain could reasonably have believed that if he
did not answer the questions Freer and Ayers asked him during the interviews, he
would have been in violation of prison rules. And Chamberlain could reasonably have
construed his situation as one in which he was “deprived of his freedom of action
in . . . [a] significant way.” Miranda, 384 U.S. at 444. Chamberlain was not free to
leave, or, at least, not free to leave without risking the consequences.

       In addition, the atmosphere of the questioning was police dominated. As we
construe the record, prison guards escorted Chamberlain to the interview. The
interview was conducted by DOC investigators. Additionally, at the end of
questioning, Chamberlain was transferred from the medium-security facility to a close-
custody facility, and then to a segregation unit. (Pretrial Mot. Hr’g Tr. 140-42.)
Although Chamberlain was not “placed under arrest” (he was already under arrest), his




                                          -8-
transfer to a more confined situation was clearly the result of the investigation.
Overall, the facts indicate to us that Chamberlain was “in custody” during questioning.
The failure to precede the questioning with a Miranda warning therefore violated
Chamberlain’s Fifth Amendment rights, and his statements during the interview should
have been excluded from evidence.

       The government argues that even if the admission of Chamberlain’s statements
about the child lists was error, that error was harmless. We do not agree. Chamberlain
was charged with possession of, and conspiracy to distribute, child pornography.
Chamberlain admitted, in the statements in question, that the lists, which contained
names, addresses, and descriptions of children in the Minnesota area, belonged to him.
The government introduced the lists during trial and discussed the lists, in some detail,
in its closing argument. (Trial Tr. 370-76, 894-95.) Other evidence against
Chamberlain was also introduced at trial – evidence that Chamberlain possessed child
pornography (Trial Tr. 277) – but Chamberlain’s statements about the lists identified
the lists as his. Without Chamberlain’s statements, the testimony and closing
arguments the jury heard related to the lists would have been far less compelling. The
admission of Chamberlain’s statements regarding his knowledge of the child lists,
therefore, can not be considered harmless error.

                                          IV.

        Chamberlain raises a number of other issues in his appeal. Three of his
arguments relate to evidentiary issues: first, that the child lists were inadmissable
under Rule 404(b) of the Federal Rules of Evidence because the lists were not relevant
to the alleged child pornography offenses; second, that there was insufficient evidence
to convict him of conspiracy; and third, that prison disciplinary hearing findings were
wrongly excluded. Chamberlain tried to introduce findings from the prison
disciplinary hearings which resulted from the Insight investigation. The prison
disciplinary committee found Chamberlain not guilty, but the District Court did not
allow




                                          -9-
Chamberlain to introduce the findings. Chamberlain also argues that he did not have
sufficient opportunity to confront and cross-examine William Couture, an inmate who
worked with Chamberlain at Insight and a government witness. The Court did not
allow Chamberlain to ask Couture about child sex abuse fantasy stories on the hard
drive of Couture’s computer. Finally, Chamberlain argues that the District Court erred
in applying upward adjustments to his offense levels under the federal Sentencing
Guidelines.

      The District Court did not err on any of these issues, and we therefore reverse
only on the Miranda issue. Because Chamberlain was not given a Miranda warning
prior to a custodial interrogation, the statements made during that interrogation
regarding the child lists should not have been admitted at trial.

      Reversed and remanded for a new trial.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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