                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 28 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                     Nos. 98-4226 and
                                                          99-4002
 v.
                                                  (D.C. No. 98-CR-171-C)
                                                          (Utah)
 JEFFREY ANTONIO SALAS,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      In January of 1998, police officers executed a search warrant at the home of

Jeffrey Antonio Salas, a convicted felon. An unregistered sawed-off rifle was


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
found in a bedroom believed to be that of Mr. Salas.

      Approximately one month later Mr. Salas was stopped by police for driving

an unregistered car. Because the officers knew that he was driving on a

suspended license, they ordered Mr. Salas out of the car, handcuffed him, and

then searched the car. During the course of this stop, Mr. Salas asked why he was

being handcuffed. Officer James Schmidt explained that he was being handcuffed

because the officers thought he was a dangerous person, and that they thought he

was dangerous because they had previously found the sawed-off rifle in his home.

Mr. Salas replied, “I didn’t know it was illegal to have a sawed-off rifle in my –

you know, in my house.” Appellant’s Br., at 12. This statement was subsequently

introduced against Mr. Salas at trial. A jury found Mr. Salas guilty of being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and

possessing an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and

5871. He now appeals.

      First, Mr. Salas argues that statements he made to a police officer during

the stop should have been suppressed because they were involuntary, made in

response to custodial interrogation by the police, and made without the benefit of

Miranda warnings. We review de novo the trial court’s determination of the

ultimate issue of voluntariness. See United States v. Muniz, 1 F.3d 1018, 1021

(10th Cir. 1993). The court’s rulings with respect to factual questions, such as


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whether the police behavior was likely to elicit an incriminating response, are

subject to review under the clearly erroneous standard. See id.

      Two conditions must be met before Miranda warnings are required. The

suspect must be in custody, and the questioning must meet the legal definition of

interrogation. United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993). The

Supreme Court has clarified that the term “interrogation” refers to “express

questioning or its functional equivalent,” including “any words or actions on the

part of the police . . . that the police should know are reasonably likely to elicit

an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291,

300-01 (1980). The Fifth Amendment does not bar the admission of volunteered

statements which are freely given. Miranda v. Arizona, 384 U.S. 436, 478 (1966).

      We are not persuaded the district court erred in deciding that Mr. Salas was

not “interrogated” within the meaning of Miranda. Mr. Salas “was not subjected

to compelling influences, psychological ploys, or direct questioning.” Arizona v.

Mauro, 481 U.S. 520, 529 (1987). “There were no accusatory statements or

questions posed by law enforcement officials.” United States v. De La Luz

Gallegos, 738 F.2d 378, 380 (10th Cir. 1984). Officer Schmidt was not engaging

in the functional equivalent of express questioning. He was merely answering

Mr. Salas’ question about the handcuffs and he could not have expected this to

elicit an incriminating statement. Mr. Salas’ statement was unprovoked,


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spontaneous, and voluntary, and thus not the result of interrogation requiring

Miranda warnings. 1

      Next, Mr. Salas argues that his motion for a mistrial based on improper

testimony was erroneously denied. At trial, Officer Schmidt testified about his

perception of Mr. Salas as a “dangerous person.” He clarified that this perception

was based on the fact that the sawed-off rifle had been found in Mr. Salas’ home.

Mr. Salas objected, and the court gave a curative instruction. Mr. Salas now

contends the curative instruction was not sufficient to prevent the jury from being

prejudiced by the testimony. Because the trial judge is in the best position to

evaluate the effect of the offending testimony on the jury, we review the denial of

Mr. Salas’ motion for mistrial for abuse of discretion. See United States v.

Laymon, 621 F.2d 1051, 1053 (10th Cir. 1980).

      A cautionary instruction by the trial judge is ordinarily sufficient to cure

any alleged prejudice to the defendant. See United States v. Peveto, 881 F.2d

844, 859 (10th Cir. 1989). A mistrial should not be ordered unless the testimony

will “create so strong an impression on the minds of the jurors that they will be

unable to disregard it in their consideration of the case, although admonished to

do so.” Maestas v. United States, 341 F.2d 493, 496 (10th Cir. 1965).


      1
        Because we determine that there was no interrogation, it is unnecessary for
us to reach the issue of whether Mr. Salas was in “custody” at the time he made
the statement.

                                         -4-
      In this case, the evidence against Mr. Salas was strong: the officers had

found the rifle in Mr. Salas’ home, and there was ample evidence that the

bedroom where the rifle was found was used by Mr. Salas. The prosecutor made

sure that Officer Schmidt limited his explanation of why he thought of Mr. Salas

as dangerous to the fact of the discovered rifle. Moreover, the trial court

correctly pointed out that, without this explanation, the jury would be left

wondering why Mr. Salas was handcuffed during an otherwise routine traffic stop.

Finally, the court gave a limiting instruction to the jury immediately after this

testimony. In light of these facts, we hold that the court did not abuse its

discretion in refusing to grant a mistrial after Officer Schmidt’s testimony. See,

e.g., United States v. Lopez, 576 F.2d 840, 846 (10th Cir. 1978) (mistrial not

necessary after witness made single remark that defendant was “involved in

everything”).

      It was not error for the trial court to admit Mr. Salas’ statement to Officer

Schmidt into evidence. Nor did the trial court err in denying Mr. Salas’ motion

for a mistrial based on Officer Schmidt’s testimony. Accordingly, we AFFIRM

Mr. Salas’ conviction.

                                        ENTERED FOR THE COURT

                                        Stephanie K. Seymour
                                        Chief Judge



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