10-2591-cr
U.S.A. v. Akapo


                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 20th day of April, two thousand eleven.
PRESENT:    AMALYA L. KEARSE,
            ROGER J. MINER,
            DENNY CHIN,
                            Circuit Judges.

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UNITED STATES OF AMERICA,
          Appellee,

            -v.-                                      10-2591-cr

TEMILOLA AKAPO,
          Defendant-Appellant.
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FOR DEFENDANT-APPELLANT:            DARRELL B. FIELDS, New York, New
                                    York.

FOR APPELLEE:                       CHRISTOPHER C. CAFFARONE, Assistant
                                    United States Attorney (David C.
                                    James, Assistant United States
                                    Attorney, on the brief), for
                                    Loretta E. Lynch, United States
                                    Attorney for the Eastern District
                                    of New York, Brooklyn, New York.
          Appeal from a judgment of the United States District

Court for the Eastern District of New York (Ross, J.) entered on

June 29, 2010, following a jury verdict convicting defendant-

appellant Temilola Akapo of possession of counterfeit checks, in

violation of 18 U.S.C. § 513(a).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment is AFFIRMED.

          We assume the parties' familiarity with the facts and

procedural history of the case, which we summarize as follows:

          In March 2008, officials of United States Immigration

and Customs Enforcement ("ICE") learned that a package of

counterfeit checks was addressed to Akapo at his home.    On April

10, 2008, ICE agents went to Akapo's apartment and spoke to him.

He made incriminating statements, admitting his involvement in a

counterfeit check scheme.   He was arrested, given Miranda

warnings, and made further incriminating statements.     In Akapo's

apartment, the agents found counterfeit checks and electronic

devices that contained templates of counterfeit checks.

     Prior to trial, Akapo moved to suppress his pre-arrest

statements as well as the physical evidence seized from his

apartment.   The district court denied the motion.

          Following a two-day jury trial in June 2009, Akapo was

convicted of possessing counterfeit checks.   The district court

sentenced him principally to six months' imprisonment and six

months' home detention.



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            Akapo's only contention on appeal is that his pre-

arrest statements should have been suppressed on the theory that

he was "in custody" at the time of his statements and had not

been read his Miranda warnings.     We review the district court's

factual findings for clear error and its legal conclusions de

novo.   United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006).

            The warning requirements of Miranda apply only to

"'custodial interrogation.'"    United States v. Newton, 369 F.3d

659, 669 (2d Cir. 2004) (quoting Miranda v. Arizona, 384 U.S.

436, 444 (1966)), cert. denied, 543 U.S. 947 (2004).     The test

for determining whether an individual is in custody is an

objective one that asks (1) "what were the circumstances

surrounding the interrogation," United States v. Badmus, 325 F.3d

133, 138 (2d Cir. 2003)(internal quotation marks omitted); (2)

"would a reasonable person [in those circumstances] have felt he

or she was not at liberty to terminate the interrogation and

leave," id.; and (3) if not, "whether [the defendant's] freedom

of action ha[d] been curtailed to a degree associated with [a]

formal arrest," Newton, 369 F.3d at 671 (internal quotation marks
omitted).     Absent a formal arrest, "interrogation in the familiar

surroundings of one's own home is generally not deemed

custodial."    Id. at 675.

            As the district court found, the interview occurred

just outside of Akapo's apartment, he was not handcuffed or

frisked, he consented to a search of his apartment, he never

indicated that he wanted to leave, and was not told that he could

                                 -3-
not leave.    Although two of the agents asked Akapo to stand near

the doorway while three other agents searched the apartment, this

was a reasonable request given the small size of his apartment,

and on balance did not result in a custodial situation.   See

Badmus, 325 F.3d at 138-39 (finding no custody where agents asked

defendant and his wife to stay seated in the living room during

the search of their apartment and did not allow free movement

about the apartment).   On these findings, which Akapo has given

us no reason to disturb, the district court properly denied

Akapo's motion to suppress.

          Even assuming, without deciding, that it was error to

admit Akapo's pre-arrest statements because he was "in custody"

for Miranda purposes, the error was harmless.   These statements

merely were duplicative of the admissions he made in a post-

arrest, post-Miranda-warnings interview, which were plainly

admissible.   See Rollins v. Leonardo, 938 F.2d 380, 382 (2d Cir.

1991)(per curiam)(concluding that error was harmless where

defendant's un-Mirandized confession was cumulative of subsequent

confession and other evidence of guilt).
                              CONCLUSION

          We have considered all of Akapo's other contentions on

appeal and have found them to be without merit.   For all the

reasons stated, the judgment of the district court is AFFIRMED.


                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, CLERK




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