     Case: 09-10115     Document: 00511130892          Page: 1    Date Filed: 06/03/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 3, 2010
                                     No. 09-10115
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RODERICK DUNSTON, also known as Pooh,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:07-CR-145-4


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Roderick Dunston was convicted by a jury of conspiracy to distribute and
possess with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The district court sentenced Dunston
to a mandatory life sentence.
        Dunston argues that the district court reversibly erred when it denied his
pretrial motion to suppress statements he made during a custodial interrogation
by DEA agents without benefit of warnings required by Miranda v. Arizona, 384

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-10115

U.S. 436 (1966). When reviewing a ruling on a motion to suppress, we review
questions of law de novo and findings of fact for clear error, and evidence is
viewed in the light most favorable to the party who prevailed in the district
court. United States v. Santiago, 410 F.3d 193, 197 (5th Cir. 2005). The district
court’s denial of the motion to suppress is subject to the harmless error rule. See
United States v. Garcia-Ruiz, 546 F.3d 716, 718 (5th Cir. 2008). “A suspect
is . . . ‘in custody’ for Miranda purposes when placed under formal arrest or
when a reasonable person in the suspect’s position would have understood the
situation to constitute a restraint on freedom of movement of the degree which
the law associates with formal arrest.” United States v. Bengivenga, 845 F.2d
593, 596 (5th Cir. 1988) (en banc). The district court determined that the
circumstances did not rise to this level. Even if this were erroneous, in light of
the overwhelming evidence of Dunston’s guilt, any error is harmless. See United
States v. Bentley, 875 F.2d 1114, 1117 (5th Cir. 1989).
      Dunston also argues that the district court erred by allowing the
introduction of evidence, i.e., testimony and exhibits, of his 1999 Florida
conviction for possession of cocaine with intent to sell or deliver. We review a
decision to admit Federal Rule of Evidence 404(b) evidence under a heightened
abuse of discretion standard, subject to a harmless error inquiry if abuse is
found. United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008), cert. denied,
129 S. Ct. 2018 (2009). Our review of the record shows that the evidence met
both steps of the test outlined in United States v. Beechum, 582 F.2d 898, 911
(5th Cir. 1978) (en banc), and the district court did not err in admitting it.
      Although Dunston argues that the district court reversibly erred by
refusing to give his requested jury instruction regarding the voluntariness of the
statements he made to the DEA agent, the evidence at trial does not reveal that
the DEA agents used any coercion to elicit Dunston’s statements or that his will
was overborne by the circumstances. See Dickerson v. United States, 530 U.S.
428, 434 (2000). Dunston has not shown that there was a sufficient evidentiary

                                        2
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                                No. 09-10115

basis for his requested voluntariness instruction or that the lack of the
voluntariness instruction seriously impaired his ability to present his defense.
See United States v. Reagan, 596 F.3d 251, 255 (5th Cir. 2010). Thus, he has not
shown that the district court erred in refusing to give that instruction.
      AFFIRMED.




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