                      NONPRECEDENTIAL DISPOSITION
                        To be cited only in accordance with
                                Fed. R. App. P. 32.1


            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                              Argued February 12, 2007
                                Decided July 25, 2007

                                        Before

                    Hon. MICHAEL S. KANNE, Circuit Judge

                    Hon. ILANA DIAMOND ROVNER, Circuit Judge

                    Hon. DIANE S. SYKES, Circuit Judge


No. 06-2451                                      Appeal from the United States
                                                 District Court for the
UNITED STATES OF AMERICA,                        Northern District of Illinois,
              Plaintiff-Appellee,                Eastern Division.

      v.                                         No. 04 CR 693

JANUSZ ROBAK,                                    Robert W. Gettleman,
           Defendant-Appellant.                  Judge.



                                      ORDER

       A jury found Janusz Robak guilty of conspiring to distribute Ecstasy in
violation of 21 U.S.C. §§ 841(a)(1) and 846, conspiring to commit money laundering
in violation of 18 U.S.C. § 1956(h), and perjury in violation of 18 U.S.C. § 1623(a).
The offenses stem from Robak’s involvement in a large-scale Ecstasy smuggling
ring operating across the U.S./Canadian border. On appeal, Robak argues the
district court erred by denying his motion to suppress his incriminating statements
and by admitting evidence of a border stop at the U.S./Canada border during which
he was caught attempting to bring undeclared cigarettes into the United States.

       We affirm. Robak freely reinitiated communication with law enforcement
officers after initially invoking his right to counsel, and offered the incriminating
No. 06-2451                                                                            Page 2

statements following an appropriate Miranda waiver. The border-stop evidence
was admissible to prove his knowledge of border procedures and was not unduly
prejudicial.

                                      I. Background

       Officer Zachary McCorkle1 pulled over the driver of what he believed to be a
stolen vehicle for a minor traffic violation in Norridge, Illinois. Robak was driving
the car and presented Officer McCorkle with a bogus driver’s license identifying
him as Daniel Kot. McCorkle took Robak (whom he believed to be Daniel Kot) to
the Norridge Police Department for questioning about the car. After asking several
booking questions, McCorkle learned Robak’s true identity from FBI Special Agent
James Swenty, who arrived a short time later to arrest Robak on federal drug
charges.

       Agent Swenty took Robak into federal custody and read him his Miranda
rights in English. Unsure if Robak understood—Robak is Polish and speaks his
native language—Agent Swenty ceased his questioning until the rights could be
given in Polish. At that point he was unsure whether Robak had requested counsel;
however, his written report reflected Robak had indeed made the request.

       About an hour later, Robak was moved to a Drug Enforcement
Administration (“DEA”) office where he was met by DEA Task Force Officer
Magdalena Garrison, who was unaware of any previous request for counsel by
Robak. Garrison greeted Robak by saying “good day” in Polish, and Robak asked
why he was in custody. Garrison replied, “because of an issue of stolen cars.”2
Robak then asked, “Can we talk about it?” Garrison said they could but first they
had to follow certain procedures. Garrison and the other officer then read Robak
his Miranda rights in both Polish and English, and Robak initialed each line and
signed a waiver of rights form. The form stated: “I have read this statement of my
rights, and I understand what my rights are. At this time I am willing to answer
questions without a lawyer present.” During the ensuing interview, Robak
identified photos of individuals and explained what he knew about them, and then
admitted transporting money and pills that he believed were steroids to and from
Canada. At this time Robak also consented to a search of his Norridge residence.
The interview ended when Robak requested an attorney.

       Robak initially was charged by indictment with conspiracy to distribute

1
  Officer McCorkle serves on the Elgin Police Department and at the time was specially
assigned to the Kane County Auto Theft Task Force, a unit with the Illinois State Police.
2
  Coincidentally, Garrison had been at the U.S. Attorney’s office helping to prepare a criminal
complaint against Robak earlier in the day for unrelated drug charges.
No. 06-2451                                                                          Page 3

Ecstasy. He then filed a “Motion to Suppress Statements of Defendant and Physical
Evidence Seized from Defendant’s Vehicle.” Nine days later, a grand jury returned
a superseding indictment charging Robak with: (1) conspiracy to distribute Ecstasy;
(2) conspiracy to commit money laundering; (3) lying to the FBI regarding the
investigation; and (4) perjury allegedly committed during his detention hearing.
The next day Robak filed a “Motion to Bar Evidence of Stops of Defendant by
Authorities at the U.S./Canadian Border.” The district court held a hearing and
denied Robak’s motions. A jury returned a guilty verdict on all counts except for the
third.

                                     II. Discussion

       Robak challenges the district court’s denial of his motion to suppress his
incriminating statements and his motion to exclude the border-stop evidence. We
address each issue in turn, reviewing the district court’s evidentiary ruling for
abuse of discretion, United States v. Thomas, 453 F.3d 838, 844 (7th Cir. 2006), and
the court’s findings of fact and credibility determinations on the suppression motion
for clear error, United States v. Jensen, 169 F.3d 1044, 1046 (7th Cir. 1999). A
district court’s “decision to credit the testimony of one witness over another, each of
whom has told a ‘facially plausible story’ can almost never be clear error.” United
States v. Briggs, 273 F.3d 737, 740 (7th Cir. 2001) (quoting Jensen, 169 F.3d at
1046).

A. Denial of Motion to Suppress

       Miranda v. Arizona, 384 U.S. 436, 444 (1966), requires that prior to custodial
interrogation, a suspect “must be warned that he has a right to remain silent, that
any statement he does make may be used as evidence against him, and that he has
a right to the presence of an attorney, either retained or appointed.”3 A suspect
may waive these rights “provided the waiver is made voluntarily, knowingly and
intelligently. If, however, he indicates in any manner and at any stage of the
process that he wishes to consult with an attorney before speaking there can be no
questioning.” Id. at 444-45.

      After the right to counsel is invoked, a suspect in custody may “change his
mind,” making a subsequent interrogation permissible, if “‘the . . . [defendant]
himself initiates further communication, exchanges, or conversations with the




3
  “Custodial interrogation” means 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).
No. 06-2451                                                                     Page 4

police’” and waives his Miranda rights.4 Oregon v. Bradshaw, 462 U.S. 1039, 1044
(1983) (quoting Edwards v. Arizona, 451 U.S. 477, 485 (1981)); see also United
States v. Huerta, 239 F.3d 865, 873 (7th Cir. 2001) (holding defendant reinitiated
communication when she asked why detectives wanted her shoes and then said she
wanted to talk). A suspect is interrogated for purposes of Miranda if the officer
should know his words or actions “are reasonably likely to elicit an incriminating
response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980); United
States v. Westbrook, 125 F.3d 996, 1002 (7th Cir. 1997) (applying Innis, we ask
whether a reasonable, objective observer would believe the officer’s question was
“reasonably likely to elicit” an incriminating response). Thus, “volunteered
statements are not subject to Miranda warnings.” Westbrook, 125 F.3d at 1002.

        Here, Robak apparently asked for an attorney during his initial questioning
by Agent Swenty. Swenty ceased his questioning, Robak was moved to a DEA
office, and Officer Garrison, a Polish-speaking DEA officer, greeted him in Polish.
Robak then asked Officer Garrison why he was in custody. When she responded,
he asked, “Can we talk about it?” The district court held that by this line of inquiry,
Robak voluntarily reinitiated conversation with the police. Robak argues that
Officer Garrison reinitiated the interrogation when she greeted him in Polish when
he arrived at the DEA office. He also argues that Officer Garrison’s incomplete
explanation that he was in custody because of stolen cars (with no mention of drugs)
is evidence of her intent to elicit incriminating responses from him.

       We agree with the district court that a reasonable, objective observer would
not believe Garrison’s Polish greeting of “good day” to be reasonably likely to elicit
incriminating information. Accordingly, Officer Garrison did not reinitiate the
interrogation. Robak voluntarily resumed communication with law enforcement
when he asked Officer Garrison why he was in custody and then further asked to
“talk about it” when the officer replied that he was under arrest for “stolen cars.”
That Officer Garrison omitted any reference to drugs does not undermine the
voluntariness of Robak’s reinitiation of communication. Officer Garrison told Robak
that before they could “talk about it” they first had to follow procedures; Robak was
then read his Miranda rights in both Polish and English. When he signed the
waiver, he was fully aware of his rights and voluntarily waived them prior to
making the incriminating statements and consenting to the search. The district
court properly denied the suppression motion.

B. Admission of Border-Stop Evidence



4
  To determine whether a defendant waived his rights in the reinitiation context,
courts consider whether the police made threats, promises, or inducements to talk, and
whether the defendant was properly advised of and understood his rights and after
requesting an attorney simply changed his mind. Oregon v. Bradshaw, 462 U.S. 1039, 1046
(1983).
No. 06-2451                                                                      Page 5

       Robak argues that the admission of evidence of his detention at the
U.S./Canada border with undeclared cigarettes was unfairly prejudicial because
that incident differs substantially from the charged crime of smuggling Ecstasy.
Rule 404(b) of the Federal Rules of Evidence provides that “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order
to show action in conformity therewith. It may, however, be admissible for other
purposes, such as . . . opportunity, intent, preparation, plan, [or] knowledge . . . .”
Other-act evidence is admissible if:

              (1) the evidence is directed toward establishing a matter in issue other
              than the defendant’s propensity to commit the crime charged, (2) the
              evidence shows that the other act is similar enough and close enough
              in time to be relevant to the matter in issue, (3) the evidence is
              sufficient to support a jury’s finding that the defendant committed the
              similar act, and (4) the probative value of the evidence is not
              substantially outweighed by the danger of unfair prejudice.

United States v. Burke, 425 F.3d 400, 410 (7th Cir. 2005) (quoting United States v.
Bursey, 85 F.3d 293, 296 (7th Cir. 1996)).

       On appeal, Robak renews his argument that the first, second, and fourth
requirements for the admission of other-act evidence were not met. We disagree.
The border-stop evidence was properly admitted to prove Robak’s knowledge of
U.S./Canada border procedures, a permissible noncharacter purpose under
Rule 404(b). The distinction between smuggling cigarettes and Ecstasy is
undeniable but does not prompt us to regard the admission of this evidence as an
abuse of discretion. Robak suggests that the jury could infer his knowledge of
border procedures from his occupation: a truck driver who made deliveries to
Canada. This may be true, but it does not call into question the admissibility of the
border-stop incident. Robak’s prior border detention for undeclared cigarettes was
admitted for a permitted noncharacter purpose and was not so dissimilar as to fail
the test for admission of other-act evidence.

       Moreover, the evidence of Robak’s prior act of smuggling cigarettes is not
likely to have influenced a jury so much that its prejudicial effect substantially
outweighed its probative value. United States v. Hicks, 368 F.3d 801, 807 (7th Cir.
2004) (“Evidence is unfairly prejudicial only if it will induce the jury to decide the
case on an improper basis, commonly an emotional one, rather than on the evidence
presented.” (internal citations omitted)). The district court gave an appropriate
cautionary instruction regarding the purposes for which the border-stop evidence
could be considered; “[w]e consistently have explained that such instructions
minimize the prejudicial effect of this type of evidence.” United States v. Strong,
485 F.3d 985, 991 (7th Cir. 2007) (citing United States v. Whitlow, 381 F.3d 679, 686
(7th Cir. 2004) & United States v. Rollins, 301 F.3d 511, 520 (7th Cir. 2002)).

                                                                          AFFIRMED.
