                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-2342
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                               Steven Walter Smialek

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                  ____________

                              Submitted: June 18, 2020
                               Filed: August 17, 2020
                                   ____________

Before GRUENDER, WOLLMAN, and KOBES, Circuit Judges.
                       ____________

KOBES, Circuit Judge.

      Steven Smialek was convicted of bank robbery in violation of 18 U.S.C.
§ 2113(a). He appeals his conviction, arguing that the district court1 erred by denying


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
his motion to suppress statements made before receiving a Miranda warning, by
denying his motion for a mistrial due to a witness’s spontaneous reference to two of
Smialek’s past bank robbery convictions, and that the district court should have sua
sponte dismissed his indictment because the Government presented inaccurate
testimony to the grand jury. We affirm.


                                                I.

      In March, 2018, Smialek robbed a TCF Bank in Fridley, Minnesota. He
approached the teller, showed a note demanding cash, warned he had a gun, and said
“don’t give me any trackers.” 7/3/19 Tr. 43:15. He made off with just under $4,000
but was arrested nearly two months later. This was not Smialek’s first robbery; he
had robbed the same TCF Bank in 2008 in a nearly identical fashion and had been
convicted of two other bank robberies in 1980 and 1995.

      After being taken into custody, Smialek pestered FBI Special Agent Dave
Walden for the date of the robbery. Eventually, Special Agent Walden answered.
Smialek then volunteered a detailed alibi, including what buses he had taken that day,
where he bought cigarettes, and that he had purchased two chicken breasts and a coke
from Popeyes. Notably, his account did not rule out his involvement with the
robbery. Special Agent Walden repeatedly tried to give Smialek a Miranda warning
during this exchange, but because Smialek continually cut him off, he did not do so
before Smialek provided his alibi. After the district court denied Smialek’s motion
to suppress his alibi statements, the jury convicted him and he was sentenced to 140
months in prison.

                                          II.

      Smialek argues the district court erred by denying his motion to suppress his
alleged alibi. At trial, the jury saw a video of Smialek explaining his alibi to Special

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Agent Walden. Special Agent Walden also testified that Smialek’s recall was “very
unusual.” 7/3/19 Tr. 137:3. The denial of a motion to suppress evidence presents a
mixed question of law and fact. We review the district court’s factfinding supporting
denial for clear error and its legal conclusions de novo. United States v. Williams,
777 F.3d 1013, 1015 (8th Cir. 2015).

       “The Fifth Amendment requires that Miranda warnings be given when a person
is interrogated by law enforcement after being taken into custody.” United States v.
Giboney, 863 F.3d 1022, 1027 (8th Cir. 2017). The Government concedes Smialek
was in custody, so we only assess whether Smialek was interrogated when he gave
his alibi. “Voluntary statements unprompted by interrogation are admissible with or
without Miranda warnings.” United States v. Bailey, 831 F.3d 1035, 1038 (8th Cir.
2016). Under Miranda, “interrogation” refers to express questioning and its
functional equivalent, i.e. “any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Rhode Island
v. Innis, 446 U.S. 291, 301 (1980). In most cases where an officer responds to a
defendant’s question, his response does not amount to an interrogation. United States
v. Crisolis-Gonzalez, 742 F.3d 830, 837 (8th Cir. 2014).

       Special Agent Walden attempted to give Smialek a Miranda warning, but was
repeatedly interrupted by Smialek, who was noncompliant and insisted on knowing
the date of the robbery. After Smialek asked when the robbery happened for a fifth
time, Special Agent Walden finally responded “March 10th.” Smialek contends that
Special Agent Walden should have reasonably known that providing the information
Smialek badgered him for would elicit an incriminating response. Instead of
responding, Smialek says Special Agent Walden should have continued to insist on
providing a Miranda warning.




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       We are not persuaded that Special Agent Walden should have expected that
Smialek would immediately volunteer an alleged alibi when he learned the date of a
robbery that occurred almost two months prior. “The statements were instead
responses to [defendant’s] own inquiries and thus part of a conversation ‘normally
attendant to arrest and custody.’” United States v. Lockett, 393 F.3d 834, 838 (8th
Cir. 2005) (citations omitted). Even if Special Agent Walden expected a response
from Smialek, it was not reasonably likely that it would be incriminating. See United
States v. Hernandez-Mendoza, 600 F.3d 971, 977 (8th Cir.), as amended, 611 F.3d
418 (8th Cir. 2010) (“[A]n expectation of voluntary statements does not amount to
deliberate elicitation of an incriminating response.”).

       Special Agent Walden stating the date of the robbery in response to Smialek’s
questions was not an interrogation. Smialek’s alleged alibi was not prompted by
interrogation and the district court did not err by denying the motion to suppress. See
Bailey, 831 F.3d at 1038.

                                          III.

       Smialek also argues that it was error for the district court to deny his motion
for a mistrial because the jury improperly heard testimony about two of Smialek’s
three prior bank robbery convictions.

        Before trial, the district court ruled that Smialek’s 2008 bank robbery
conviction could be admitted to show identity and modus operandi, but excluded his
1980 and 1995 convictions. During trial, the Government called a witness who
reported Smialek as a possible suspect for the bank robbery after she saw a news
report. The witness was asked how she connected Smialek to the TCF robbery and
testified that “I Googled [Smialek’s] name . . . and ran across stories that he had been
convicted of robbing three other banks . . . .” 7/3/19 Tr. 266:15–18. The Government
immediately tried to direct the conversation away from the improper statement,

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focusing on the connection the witness made to TCF Bank, the location of the 2008
robbery. But because this testimony contradicted its pretrial ruling, the court gave the
jury a curative instruction. It denied Smialek’s motion for a mistrial.

       We review a district court’s denial of a motion for mistrial for abuse of
discretion. United States v. Branch, 591 F.3d 602, 607 (8th Cir. 2009). “As a general
rule, the decision whether a trial has been so tainted by prejudicial testimony that a
mistrial should be declared lies within the discretion of the district court,” United
States v. Muza, 788 F.2d 1309, 1312 (8th Cir. 1986), which “[i]s in a far better
position to measure the effect of an improper question on the jury than an appellate
court which reviews only the cold record.” United States v. Hollins, 432 F.3d 809,
812 (8th Cir. 2005) (citation omitted). “[E]xposure of a jury to improper testimony
ordinarily is cured by measures less drastic than a mistrial, such as an instruction to
the jury to disregard the testimony.” Id. (quoting United States v. Sherman, 440 F.3d
982, 987 (8th Cir. 2006).

       To determine the prejudicial effect of any improper testimony, we “examin[e]
the context of the error and the strength of the evidence of the defendant’s guilt.”
United States v. Cole, 380 F.3d 422, 427 (8th Cir. 2004). “When a district court
provides a remedial instruction to the jury, [we] must still determine whether the
verdict was substantially swayed by the prejudicial comment” and will affirm a
conviction when there is “substantial evidence” of guilt. Branch, 591 F.3d at 607
(citation omitted).

       There was substantial evidence of Smialek’s guilt. Six witnesses identified
Smialek as the bank robber, including the bank teller Smialek approached for the
money. He robbed the same bank in 2008 in a similar way, the only significant
difference being that this time, his demand note also said “don’t give me any
trackers,” a reference to how he was caught for his 2008 robbery. A nearby
surveillance camera captured footage showing a car that looked like Smialek’s

                                          -5-
parking near the bank before the crime and leaving immediately afterward. Smialek’s
detailed alibi did not exclude him from this robbery. Given this evidence against him,
the district court did not abuse its discretion in denying Smialek’s motion for a
mistrial. See Hollins, 432 F.3d at 812.

                                           IV.

       Finally, Smialek claims that the indictment should have been dismissed
because the grand jury heard inaccurate and prejudicial evidence that rendered its
proceedings fundamentally unfair. Special Agent Walden told the grand jury that a
pair of pants found in Smialek’s apartment matched the pants the bank robber wore
based on the bank’s surveillance footage. At trial, he retreated, explaining, “I
determined that the pants were of less significance than I thought when I took them.”
7/3/19 Tr. 212:4–6.

       Smialek forfeited the issue by failing to raise it at trial, so we review for plain
error. United States v. Robertson, 606 F.3d 943, 950 (8th Cir. 2010). Smialek argues
he did not forfeit the issue, which would have been impossible to raise in a pretrial
motion because Special Agent Walden did not rescind his statement about the
significance of the pants until trial. Though we agree that Smialek did not waive the
issue by failing to file a pretrial motion, Smialek still failed to raise the issue before
the district court at all, so it is forfeited. See United States v. Rice, 449 F.3d 887, 894
(8th Cir. 2006); United States v. Olano, 507 U.S. 725, 733 (1993).

       In most cases, plain error requires that an error be prejudicial. Olano, 507 U.S.
at 734. Even if Smialek had preserved this issue, he would need to show prejudice
because we only dismiss a grand jury indictment “upon a showing of actual prejudice
to the accused . . . . Dismissal of an indictment based on grand jury bias is an extreme
remedy, and the party seeking relief carries a heavy burden.” United States v.
Ziesman, 409 F.3d 941, 948 (8th Cir. 2005) (citation omitted). A petit jury’s guilty

                                           -6-
verdict renders any errors in the charging decision not prejudicial. See United States
v. Louper-Morris, 672 F.3d 539, 559 (8th Cir. 2012). Here, the jury convicted
Smialek without the disputed evidence. The district court did not plainly err by
failing to dismiss the indictment sua sponte.

      The judgment of the district court is affirmed.
                     ______________________________




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