                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

      No. 03-2007
      ___________

United States of America,              *
                                       *
            Plaintiff–Appellee,        *
                                       *
      v.                               *
                                       *
Thomas James Martin,                   *
                                       *
           Defendant–Appellant.        *
      ___________
                                           Appeals from the United States
   Nos. 03-2255/2459                       District Court for the District of
     ___________                           Minnesota.

United States of America,             *
                                      *
            Appellee/Cross-Appellant, *
                                      *
      v.                              *
                                      *
Joseph Paul Biernat,                  *
                                      *
            Appellant/Cross-Appellee. *

                                  ___________

                             Submitted: February 9, 2004
                                Filed: May 28, 2004
                                 ___________
Before MELLOY, FAGG and COLLOTON, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

       Minneapolis City Councilman Joseph Biernat (“Biernat”) appeals his
convictions of mail fraud, causing the theft of union funds, and lying to the FBI.
Thomas Martin (“Martin”), business manager for the Plumber’s Union Local 15 (the
“Union”), pled guilty to mail fraud and theft from a union organization. He appeals
the district court’s1 two-level sentence enhancement for obstruction of justice. The
government cross-appeals Biernat’s two-level “minor role” reduction. We affirm.

                                    I. FACTS

       This is a public corruption case in which Joseph Biernat and Thomas Martin
were accused of trading $2,700 of free plumbing services in a home owned by Biernat
for Biernat’s vote to put Martin on the Minneapolis Plumber’s Examining Board (the
“Plumber’s Board”).

       As part of his duties as business manager of the Union, Martin managed the
Union’s market recovery fund. This fund was designed to subsidize member
contractors so that they could bid competitively with non-union contractors. The
government accused Martin of misusing the fund’s resources to pay for plumbing
work at six separate residences. One of these residences was owned by Joseph
Biernat and occupied by his mother, Sophie Biernat. The evidence shows Martin
asked Norblom Plumbing to evaluate the work needed in Mrs. Biernat’s home. On
the same date, Joseph Biernat voted affirmatively to forward Martin’s name to the
city council for appointment to the Plumber’s Board. Approximately two weeks later,

      1
       The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

                                        -2-
Norblom Plumbing completed repairs on Sophie Biernat’s home. Martin then
authorized payment in full, in the amount of $2,700, to be drawn from the market
recovery fund and paid to Norblom Plumbing.

      A.     Councilman Biernat

       Biernat claimed at trial that he knew nothing of the payment arrangements for
the plumbing and that he took no efforts to appoint Martin. However, Biernat signed
two written statements for the FBI in which he admitted his illegal actions.

       FBI agents first interviewed Biernat on August 1, 2001, on a related matter.
An agent asked if Biernat or anyone in his family had received any improvements to
real property from anyone other than family members. Biernat responded in the
negative.

             1.    The March 7 Interview

       FBI agents again interviewed Biernat on March 7 and 8, 2002. On March 7,
agents in a car approached Biernat as he was on foot. The agents rolled down the
window of the car, identified themselves, and said that they had some information to
share with Biernat. The agents informed Biernat that meeting with them would be
fully voluntary. The agents asked Biernat if he would like to return to his car.
Biernat did so, then approached the agents on foot. Agent Sean Boylan (“Boylan”)
reminded Biernat that the meeting was voluntary, then invited Biernat to sit in the
unmarked Oldsmobile Boylan was driving. Biernat accepted and sat in the front
passenger seat next to Boylan, who was in the driver’s seat. Agent Todd Thompson
(“Thompson”) subsequently joined the men and sat behind the driver’s seat.

      Biernat told Boylan that he was carrying laboratory samples to a doctor’s office
located in the Hennepin County Medical Center and suggested that Boylan

                                         -3-
accompany him while he delivered the samples. Boylan agreed, and the two men
walked towards the doctor’s office. Thompson stayed with the car. Another agent,
Andrew Mento (“Mento”), arrived and joined the men on the walk. During their trip
to the office, Biernat informed Boylan that he had contracted a stomach virus on a
recent trip to Guatemala, and that the samples he was delivering were related to this
condition. Biernat did not mention that he was taking Ciprofloxacin (“Cipro”) for the
virus. Side effects of Cipro may include anxiety, nervousness, agitation, insomnia,
and nightmares.

       When they arrived at the Medical Center, Biernat entered an office suite, while
the agents waited outside. Biernat exited the first office suite and indicated he had
to go to a different office located down the hall. The agents remained by the first
office suite. When Biernat returned, Boylan asked him if there was a place nearby
they could sit and talk. With Biernat’s permission, the three men returned to the
Oldsmobile. Biernat sat in the passenger’s seat and Mento sat behind Boylan, who
was in the driver’s seat. The men tried to find a fast food restaurant, but failed to find
one. Boylan suggested going to the FBI office, which was nearby. Biernat did not
respond. Boylan interpreted Biernat’s silence as a negative response and continued
driving.

       Biernat then suggested the cafeteria at the Hennepin County Medical Center.
The men went to the cafeteria, and Boylan suggested sitting in a relatively uncrowded
area in the corner of the cafeteria; Biernat agreed. Biernat walked toward one of the
tables and sat down, facing a wall, with his back to the cafeteria’s main seating area.
With Biernat’s permission, Boylan sat directly across from him. According to
Biernat, he sat with a wall on his right, Mento to his left, and a large pillar behind
him.

      Boylan again reminded Biernat that the meeting was voluntary. Boylan then
presented Biernat with information about the FBI’s investigative tools and procedures

                                           -4-
and requirements for cooperation. Boylan asked Biernat to try to keep from asking
questions until the end of the presentation. The presentation lasted between twenty
and thirty minutes. During the presentation, Boylan showed Biernat information
about a previous public corruption case targeting Minneapolis City Councilman Brian
Herron (“Herron”). Boylan displayed newspaper articles about the investigation, a
consensual video recording of Herron accepting a bribe, and Herron’s signed
statement. The agents also showed a folder with Biernat’s face and name on it and
suggested they had information about Biernat. The agents then left the table for
several minutes.

       Upon their return, the agents again advised Biernat that his presence was
voluntary. They also asked him if he wanted something to eat or drink or if he needed
a bathroom break. Defendant answered, “No, let’s keep going.” The agents then
began to question Biernat as to whether he had done anything illegal in his position
as a councilman. Biernat told the agents that he had received a free kitchen upgrade
in 1993 and that he had not declared the value of the improvements on his taxes. He
also told the agents that his mother’s home had a plumbing problem and that he had
mentioned the problem to Martin in the fall of 1998. Biernat said that Martin had
arranged to have repairs done by union plumbers sometime between late 1998 and
mid-1999. Biernat admitted that he did not pay for the repairs and that he knew it
was illegal not to do so.

       After Biernat had given them this information, the agents reduced Biernat’s
statements into a written statement. They asked him to sign the statement if it was
true. Biernat read and edited the statement. The first paragraph of the statement
reads: “By reviewing the statement, initialing each page and signing the statement,
I acknowledge that no one has threatened, coerced or promised me anything.”
Biernat made changes to the statement. For example, Biernat inserted “I asked Martin
about the bill and he said he’d get it which means it would be forthcoming.” Biernat



                                        -5-
also changed the description of his failure to declare the value of the plumbing work
from “illegal” to “unethical.”

        Boylan testified that Biernat appeared ill on March 7. However, Boylan
testified that Biernat seemed alert, responded appropriately to questions, and had no
apparent difficulty concentrating. Biernat made two follow-up calls to Boylan, whom
he refered to as “Sean.” During the first call, Biernat left his wife’s cell phone
number on Boylan’s voicemail, explained his plans to take his son to the barber, and
said he would call back with his pager number. Later that afternoon, Biernat called
back and left the pager number.

             2.    The March 8 Interview

       On the morning of March 8, Biernat telephoned his brother, Leonard Biernat,
to discuss the situation. Leonard is a licensed attorney, but he has not actively
practiced law since 1985. He is a member of the Minnesota House of Representatives
and teaches ethics and family law at Hamline Law School. Leonard went to Biernat’s
home at 10:30 a.m.

       Boylan telephoned Biernat around 10:50 a.m. and asked him if he would meet
with the agents for a second time. Boylan stated that this meeting would be
voluntary. Biernat agreed and decided the agents should come to his home. Boylan
and Agent Timothy Bisswurm (“Bisswurm”) agreed to meet him there. During the
telephone conversation, Biernat stated that his brother was with him, and that Leonard
was a lawyer and a friend, and had asked to be present. According to Boylan, he said
he would arrive between 12:30 and 12:45 p.m. According to Biernat, Boylan said he
would arrive in about fifteen minutes. Leonard left the house around 1:00 p.m.,
believing the agents were not coming. Before he left, he advised his brother not to
sign anything during his meeting with the agents.



                                         -6-
       Minutes later, Boylan and Bisswurm arrived at the Biernat household. Biernat
greeted the agents at the door and led them to the living room. Biernat sat on the
couch, and Boylan sat next to Biernat. Bisswurm sat across from the two men. Mrs.
Biernat soon joined them in the livingroom, and she sat next to Bisswurm. Boylan
reminded the Biernats that the meeting was voluntary and that they did not have to
talk to the agents. According to Boylan, Biernat replied that he had heard that a lot
yesterday. Later, during the meeting, he said he was sick of hearing it. Biernat said
that he wanted his brother present. The agents did not inquire as to whether Biernat
was represented by counsel, and Biernat never claimed that Leonard was acting as his
attorney.

       Mrs. Biernat asked the agents if they needed an attorney present. Boylan
responded that it would be inappropriate for the agents to give any advice in that
regard and that the Biernats had to make their own decision. The meeting then
proceeded. Mrs. Biernat left the meeting several times to answer the telephone. She
also offered the agents water, which she retrieved from the kitchen.

       Biernat and the agents revisited the subject of the free plumbing Biernat had
received, and the agents again reduced Biernat’s statement to a written statement. At
3:25 p.m., Biernat began to review the written statement. Biernat showed the
statement to his wife. Biernat edited the statement. Again, he added language stating
that he had asked Martin about a bill, and Martin had said it would be forthcoming.
Biernat changed “I knew I (owed) him and if I didn’t vote for Martin he could expose
my illegal activity of accepting the free work” to “I knew I was obligated to him . . .”,
among other things. After Biernat reviewed the statement for thirty minutes, Boylan
placed a telephone call and then advised Biernat that the agents would have to leave
in about ten minutes. Biernat stated that if he hired an attorney, an attorney would tell
him not to sign the statement. Boylan again said the meeting was voluntary, and that
he could not advise him on the issue of an attorney.



                                          -7-
      Biernat claims that the agents threatened to “make his life a living hell” if he
did not sign the statement. The agents deny having made this threat. Biernat also
claims that agents threatened to involve Biernat’s seven-year-old son, his son’s
teacher, his elderly mother, and his neighbors in the investigation. Agent Boylan
admits he said that an investigation might involve talking to Biernat’s son’s teacher
and Biernat’s neighbors, but denied making any threats.

       Biernat signed the statement. As with the statement from the previous day, a
paragraph included in the statement said that signing it was an acknowledgment that
the statement was voluntary, and that Biernat had not been threatened, coerced, or
promised anything in return for signing the statement.

       The district court found that agents made no show of force or intimidation and
did not make any threats or promises in order to obtain a statement. In particular, the
district court found that the agents did not make threats with respect to Biernat’s son
and school teacher or the neighbors. Bisswurm carried a firearm during the meeting,
but the agents made no reference to the weapon, and no firearms were ever
brandished. The district court found that Biernat was coherent throughout the
interview and that he was not impaired by illness or the effects of medication. The
meeting was about three and one-half hours long.

       In sum, the March 7 and 8 statements admitted the following: Biernat admitted
that he asked Martin about some plumbing problems at his mother’s home. Biernat
stated that Martin caused Union plumbers to do repairs at the home, and that Martin
knew these repairs were worth at least $1,000. Biernat admitted that he did not pay
for the work and that he knew it was illegal not to pay for the plumbing work he had
received. However, he stated that he asked Martin about the bill and that Martin said
it would be forthcoming. Biernat also admitted that he felt obligated to vote for
Martin’s appointment to the Plumber’s Board, because Martin could expose the fact



                                         -8-
that Biernat had received Union plumbing work and never paid for it. Biernat also
noted that Martin’s appointment was a consent item on the agenda.

             3.     The District Court Proceedings

       The district court found that Biernat’s written statements were voluntary, and
that Miranda warnings were not required because the interviews were noncustodial.
The district court also excluded certain evidence relating to the circumstances of the
interviews. The district court held that, because it had found Biernat’s statements
voluntary, “interrogation tactics or evidence relating to the voluntariness
determination are inappropriate and will not be the basis for a cross-examination of
[the interviewing agent].”

      After a jury trial, Biernat was convicted of mail fraud, in violation of 18 U.S.C.
§§1341 and 1346, causing the theft of union fund, in violation of 29 U.S.C.
§501(c)/18 U.S.C. §2(a) & (b), and lying to the FBI, in violation of 18 U.S.C. §1001.
Biernat was acquitted of violating the Hobbs Act. He was sentenced to 21 months
imprisonment.

      B.     Thomas Martin

        Martin’s appeal focuses on the two-level adjustment for obstruction of justice
he received at sentencing. The government makes two main arguments in support of
the obstruction of justice enhancement in Martin’s case. First, the government argues
that Martin, in a taped conversation, stated his intention to destroy documents, and
that in fact these documents were never produced nor otherwise discovered. Second,
the government contends that Martin tried to cover up free plumbing work performed
at the home of his sister, Elizabeth Hinton, and her husband, Daniel Hinton, by
attempting to create a paper trail evidencing payment for the work, and then failing
to produce a relevant document in response to a government subpoena.

                                          -9-
             1.    The February 18, 2002 Conversation

       On February 18, 2002, Martin met with Jeff Norblom, who wore a wire in
cooperation with the FBI. A transcript of the recording was admitted into evidence.
According to the transcript, Norblom told Martin that Department of Labor
Investigator Mary Agnew had subpoenaed documents regarding the use of the
Union's fund to provide free plumbing work. Norblom showed the requested
documents to Martin. Martin repeatedly told Norblom to cooperate with the requests
and tell the truth. During the conversation, Martin asked if they were being recorded.
Norblom assured him they were not, and the conversation continued.

      Towards the end of the conversation, the following exchange occurred:

      Martin:      Alright. Now what are these?
      Norblom:     This is my drawing on the house.
      Martin:      Okay.
      Norblom:     That’s the order for the fixtures.
      Martin:      Okay. Okay. Okay. Now. Tell her the truth. Tell her
                   everything I told you to do.
      Norblom:     So, okay, so basically tell her that, that so lie to her just say
                   that doesn’t–
      Martin:      No. Don’t lie to her.
      Norblom:     –exist. [sic] Okay, that doesn’t exist.
      Martin:      Don’t lie to her.
      Norblom:     What, what, what’s gonna happen to that?
      Martin:      I am probably going to tear it up. I know I am.
      Norblom:     Alright.
      Martin:      Are there any other copies of this?
      Norblom:     No, that’s it.

The government argues that the documents at issue in the above exchange were not
produced in response to the Department of Labor subpoena, were not found during
a search of the Union's office, and were not found since.

                                         -10-
             2.     The Hinton Check

        The government also contends that Martin tried to cover up the fact that his
sister and her husband never paid for the plumbing work done on their home. On
approximately February 18, 2002, Martin told Daniel Hinton that the Union was
looking at records, and requested that Hinton pay the Union for the plumbing work
performed in 1999. Martin told Daniel Hinton to write two checks—one including
interest and the other not including interest—and to backdate the checks by a day or
two. Martin told Daniel Hinton that if anyone asked about the checks, Hinton was
to tell them that he “was just finally getting around to paying for the plumbing work
done in 1999.” Daniel Hinton did not have enough money in his checking account
to cover the payment, and Martin gave him $3,500 in cash to cover the checks.
Daniel Hinton complied and wrote two checks, both of which he backdated.

       On February 28, 2002, the Department of Labor subpoenaed documents from
the Union, including “All records for all payments issued by the Union to Norblom
Plumbing for advertising, work completed by Norblom Plumbing for Dan and
Elizabeth Hinton, . . . Sophie Biernat, . . . and the $3,000 payment issued by Local 15
to Norblom Plumbing in December 1999.” On March 6, 2002, Martin produced
certain documents requested in the subpoena including a note signed by Daniel
Hinton promising to pay $6,000 to the Union. The next day, law enforcement agents
executed a search warrant at the Union’s offices and seized a copy of a $6,540 check
payable to the Union, dated February 17, 2002, and signed by Daniel Hinton.

             3.     The Plea

       Martin pled guilty to mail fraud and theft from a union organization. At
sentencing, the district court applied a two-level enhancement for obstruction of
justice, pursuant to USSG section 3C1.1. The district court stated that the
enhancement was based on three separate incidents. The district court discussed the

                                         -11-
taped conversation, and rejected Martin’s argument that he was entrapped. The
district court then stated:

      But putting aside that incident which I think is subject to a couple
      varying interpretations, I’m still left with solid evidence with regard to
      the Hinton transaction of cash distribution, a backdating of checks, and
      apparently issued note stuck later in the file after the subpoena had been
      issued, to convince me that there was a scramble that was taking place
      to cover up and obstruct justice by tinkering with the records and the
      documents, and for those reasons, I think under the circumstances the
      Government prevails upon its request for an obstruction of justice
      enhancement.

In his plea agreement, Martin reserved the right to argue that his two-level increase
for obstruction of justice was unwarranted. Applying the obstruction of justice and
other adjustments, the district court arrived at a sentencing range of twenty-four to
thirty months, and sentenced Martin to twenty-four months. Without the obstruction
of justice enhancement, the sentencing range would have been eighteen to twenty-
four months.

                                 II. DISCUSSION

A.    Joseph Biernat

      1.     March 7 and 8 Statements

      Biernat claims that the district court erred in failing to suppress the statements
made on March 7 and 8, 2002. He contends that the statements (1) were involuntary
and made as a result of his weakened capacity to resist police pressure to confess and
(2) were made in violation of his Miranda rights.




                                         -12-
             a.    Voluntariness

                   i.     Standard of Review

      “We review the district court’s findings of fact for clear error and its legal
conclusion as to whether a confession was voluntary de novo.” United States v.
LeBrun, 363 F.3d 715, 724 (8th Cir. 2004) (en banc).

                   ii.    Analysis

        “To decide the voluntariness of a confession, we examine the totality of the
circumstances to determine whether pressures exerted by the authorities overwhelmed
the defendant’s will.” United States v. Rodriguez-Hernandez, 353 F.3d 632, 636 (8th
Cir. 2003) (internal quotations and citation omitted). “Obviously, interrogation of a
suspect will involve some pressure because its purpose is to elicit a confession.”
United States v. Astello, 241 F.3d 965, 967 (8th Cir. 2001). Using time pressure to
elicit cooperation does not make a confession involuntary. See id. Further, “‘a raised
voice, deception, or a sympathetic attitude on the part of the interrogator will not
render a confession involuntary unless the overall impact of the interrogation caused
the defendant’s will to be overborne.’” Id. (quoting Jenner v. Smith, 982 F.2d 329,
334 (8th Cir. 1993)). “Rather, the coercive conduct must be ‘such that the
defendant’s will was overborne and his capacity for self-determination critically
impaired.’” United States v. Santos-Garcia, 313 F.3d 1073, 1079 (8th Cir. 2002)
(quoting Astello, 241 F.3d at 967).

       Considering the totality of the circumstances, we find that Biernat’s
confessions were voluntary. The agents’ actions, while perhaps not at all times
straightforward, were not so coercive as to overcome Biernat’s will or critically
impair his capacity for self-determination. Biernat argues that he had a weakened
capacity to resist the pressure to confess because of his stomach ailment and

                                        -13-
medication. However, the district court found that Biernat was not suffering from any
significant physical or mental impairment as a result of illness or medications during
his interviews. This finding is not clearly erroneous, and is upheld. We are therefore
unpersuaded by Biernat’s weakened capacity arguments. Biernat also argues that the
exclusion of his brother, Leonard, from the meeting on March 8 weighs against the
voluntariness of his statement of that date. However, the Biernats never requested the
assistance of counsel, and never informed agents that they were represented by
Leonard Biernat. The fact that Leonard was not present does not tip the scales and
render Biernat’s statements involuntary. We also note that Biernat is a sophisticated
individual who holds a college degree, was involved in city government, and was not
especially susceptible to the interrogator’s pressures because he lacked maturity or
education. See Withrow v. Williams, 507 U.S. 680, 693-94 (1993).

             b.    Miranda

                   i.     Standard of Review

       We review a district court’s custody determinations de novo. LeBrun, 363 F.3d
at 719. “‘[I]n reviewing “in custody” determinations, we uphold findings of historical
fact unless clearly erroneous, but we apply the controlling legal standard to the
historical facts utilizing an independent review.’” Id. (quoting United States v.
Axsom, 289 F.3d 496, 500 (8th Cir. 2002)).

                   ii.    Analysis

       The United States Supreme Court ruled in Miranda that a person “taken into
custody or otherwise deprived of his freedom of action in any significant way” must
be warned “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” before law enforcement officers begin questioning.

                                        -14-
Miranda v. Arizona, 384 U.S. 436, 444 (1966). The parties agree that Biernat did not
receive Miranda warnings before making his March 7 and 8 statements. The
government claims that no warnings were necessary because Biernat was not in
custody. Biernat contends he was in custody and a warning was required, and his
statements should be suppressed.

       We therefore must determine whether Biernat was in custody during his
interviews with the FBI on March 7 and 8, 2002. “‘Two discrete inquiries are
essential to the determination: first, what were the circumstances surrounding the
interrogation; and second, given those circumstances, would a reasonable person have
felt he or she was not at liberty to terminate the interrogation and leave.’” LeBrun,
363 F.3d at 720 (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). “[T]he
initial determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating officers
or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323 (1994).

      To assess whether an interrogation was custodial, our court commonly uses six
non-exhaustive indicia of custody. The presence of the first three indicia weighs
against the existence of custody, while the presence of the latter three indicia supports
the existence of custody. Axsom, 289 F.3d at 500-01. These indicia are:

      (1) whether the suspect was informed at the time of questioning that the
      questioning was voluntary, that the suspect was free to leave or request
      the officers to do so, or that the suspect was not considered under arrest;
      (2) whether the suspect possessed unrestrained freedom of movement
      during questioning; (3) whether the suspect initiated contact with
      authorities or voluntarily acquiesced to official requests to respond to
      questions; (4) whether strong arm tactics or deceptive stratagems were
      employed during questioning; (5) whether the atmosphere of the
      questioning was police dominated; or, (6) whether the suspect was
      placed under arrest at the termination of the questioning.

United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990).

                                          -15-
       We uphold the district court’s findings of fact regarding the circumstances of
Biernat’s two interviews with FBI agents as not clearly erroneous. See Axsom, 289
F.3d at 500. Considering a totality of the circumstances, we find Biernat’s interview
on March 7, 2002 was noncustodial. First, agents informed Biernat at least four times
that his participation in the interview was voluntary. Biernat knew that he was not
under arrest and that he was free to leave. Second, Biernat was not physically
restrained by the agents. His freedom was unrestricted beyond the ordinary confines
of being seated at a table in a public cafeteria. Third, Biernat voluntarily acquiesced
to the FBI agents’ requests to speak with him and participated in determining where
the meeting was to take place. Fourth, the agents did not use strong arm tactics
during the interview. While agents did discuss FBI surveillance techniques and imply
they had information about Biernat, this type of coercion does not render the
interview custodial. See LeBrun, 363 F.3d at 721 (“[S]ome degree of coercion is part
and parcel of the interrogation process and . . . the coercive aspects of a police
interview are largely irrelevant to the custody determination except where a
reasonable person would perceive the coercion as restricting his or her freedom to
depart.”) Fifth, the atmosphere of the interview was not police-dominated. Two
agents interviewed Biernat in a public place. Sixth, Biernat was not placed under
arrest at the conclusion of questioning.

       We also find that the interview on March 8, 2002 was noncustodial. First,
Biernat was informed multiple times that the interview was voluntary. Second,
Biernat and his wife were free to move around their house during the interview, and
did so. Third, Biernat voluntarily acquiesced to the interview and participated in
determining that the meeting would take place in his home. Fourth, no strong arm
tactics were used. No weapons were brandished and no threats were made. The
agents ultimately put a ten-minute deadline on signing the statement; however, this
deadline fails to render the interview custodial. Fifth, the interview occurred in
Biernat’s home, with his wife present, and in the presence of only two officers. Sixth,
Biernat was not placed under arrest at the termination of questioning.



                                         -16-
       The March 8 interview bears a resemblance to the interview conducted in
Axsom. In that case, agents executed a search warrant at Axsom’s home at 6:45 a.m.,
seeking evidence of child pornography. Axsom answered the door wearing only a
towel, and nine federal agents entered his home. Several weapons were in the home,
and the agents secured these weapons. Agents then escorted Axsom to his bedroom
to dress. Agents interviewed Axsom in his living room without informing him that
the questioning was voluntary and without giving him a Miranda warning. During
the interview, Axsom was not allowed to get up to get himself a glass of water, and
an agent escorted him to the bathroom. Axsom was issued a citation for marijuana
possession at the end of the interview, but was not arrested. This Court found that
under the circumstances of Axsom’s interview, “a reasonable person would have felt
he was at liberty to terminate the interrogation and walk away or turn his back on the
agents.” Axsom, 289 F.3d at 503. This is despite the fact that nine officers came to
his home early in the morning, did not inform him that the interview was voluntary
and he was free to leave, and restricted his freedom of movement throughout the
encounter. Given this precedent, Biernat’s interview, which included none of the
aggravating factors present in Axsom, was clearly noncustodial.

      2.     Exclusion of Evidence

             a.    Standard of Review

       We review the lower court’s ruling to admit or exclude evidence for an abuse
of discretion. See United States v. Carroll, 207 F.3d 465, 470 (8th Cir. 2000).

             b.    Analysis

       “[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity
to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). This right includes the
right to present certain evidence concerning a confession. However, “[o]nce the court

                                        -17-
makes a preliminary determination that the confession is voluntary, then the only
requirement is that the defendant be allowed to place the statements in context.”
United States v. House, 939 F.2d 659, 663 (8th Cir. 1991).

       In Crane, the defendant was on trial for murder and moved to suppress his
confession. 476 U.S. at 684. The trial judge held a suppression hearing and found
that the confession was voluntary and should not be suppressed. Id. At trial, the
defendant “sought to introduce testimony about the physical and psychological
environment in which the confession was obtained,” to suggest that the confession
was not credible. Id. The trial court excluded the evidence, finding that it pertained
solely to the issue of voluntariness. Id.

        The Supreme Court reversed, finding that “evidence surrounding the making
of a confession bears on its credibility as well as its voluntariness,” id. at 688 (internal
quotations omitted), and “the requirement that the court make a pretrial voluntariness
determination does not undercut the defendant’s traditional prerogative to challenge
the confession’s reliability during the course of the trial.” Id. Thus, even if a trial
court has already ruled on the constitutional question of voluntariness, a defendant
is still free to present to the jury “circumstances that attend the taking of his
confession, including facts bearing upon its weight and voluntariness.” Id. (internal
citation and quotation marks omitted).

       In the present case, as in Crane, Biernat moved to suppress his confession. The
trial court denied Biernat’s motion, finding his confession voluntary. At trial, the
district court ruled that it would allow evidence relating to “the circumstances,
context, the milieu surrounding the taking of the statements,” but not allow
“questions relating to coercion or whether or not the statements made were
involuntarily made.” The district court further stated that “interrogation tactics or
evidence relating to the voluntariness determination are inappropriate and will not be
the basis for a cross-examination of the agent.” However, the district court then
proceeded to allow the defense to extensively cross-examine the agent who had

                                           -18-
conducted the interrogation. The cross-examination filled 125 pages of the transcript,
while the direct examination of the same agent filled only 89 pages.

        Thus, while the district court’s ruling allowed evidence regarding “the
circumstances, context, the milieu surrounding the taking of the statements,” the
ruling disallowed any evidence relating to coercion or voluntariness. This judgment
is difficult to square with Crane, which instructs that it is an incorrect assumption
“that evidence bearing on the voluntariness of a confession and evidence bearing on
its credibility fall in conceptually distinct and mutually exclusive categories.” Id. at
687. Instead,“the circumstances surrounding the taking of a confession can be highly
relevant to two separate inquiries, one legal and one factual.” Id. at 688.

       However, we need not square the present case with Crane because any error
that may have occurred was harmless. See Id. at 691 (harmless error applies to
whether exclusion of evidence was a violation of the right to present a full defense).
The defense engaged in a lengthy cross-examination of the agent, giving the jury
sufficient information about the context of the interrogations. In addition, the
evidence against Biernat was great. Though the defense argues that Biernat was in
ill-health and put in compromising positions when interrogated, the evidence is not
so strong that it leads one to believe that Biernat falsely confessed. He was not forced
to speak with the agents, he was not physically threatened, and he had some measure
of control over the interview process. When presented with written statements to
sign, Biernat was alert enough to make several revisions, striking out parts the agent
had written and inserting his own language. Without the unlikely scenario of a
wholesale rejection of Biernat’s statements by the jury, there was more than sufficient
evidence to convict Biernat on the counts relating to the free plumbing services he
received. Therefore, any erroneous statement of law made by the district court was
harmless.




                                         -19-
      3.     The False Statement Conviction

             a.     Standard of Review

      We review de novo the sufficiency of the evidence to sustain a conviction,
viewing the evidence in the light most favorable to the verdict. United States v. Fitz,
317 F.3d 878, 881 (8th Cir. 2003).

             b.     Analysis

        Biernat was convicted of making a false statement to an FBI agent in violation
of 18 U.S.C. §1001. The basis for this conviction was an answer he gave in the
interview conducted on August 1, 2001, as part of an investigation of another official,
Brian Herron. During this interview, an agent interrogated Biernat with the guidance
of a set of model questions. The last of these model questions reads: “Since entering
public employment, have you or any of your family members asked for or received
any improvements to any real property owned or occupied by you or your family
members (including children and parents)?” At trial, the agent testified that he
followed the written questions “just about to the letter” during the interview and that
he asked Biernat “if the councilman or anyone in his family had received any
improvements to real property from anyone other than his family members.” He also
testified that properties owned or occupied by the councilman were included in this
question. He testified that Biernat replied in the negative by saying “no.”

       On appeal, Biernat attempts to show that a one-word answer to a complicated
question is insufficient to sustain a conviction for making a false statement.
However, the authority he cites does not support this position. Biernat cites to United
States v. Vesaas, which holds that a conviction cannot stand when it is based on the
response to“an ambiguous question where the response may be literally and factually
correct.” 586 F.2d 101, 104 (8th Cir. 1978). In that case, the defendant had been
asked whether he held stocks in joint tenancy with his deceased mother. He

                                         -20-
responded that he did not. In fact, he owned the stocks, and had owned them in joint
tenancy with his mother before her death. Id. However, because it is legally
impossible to own anything in joint tenancy with a dead person, his response was
literally true. Other cases Biernat cites have similar factual situations: in each, the
answer could be construed as false, though it was literally true. Biernat is in a
different situation. There is no way that his answer to the question could be
understood as true. Though it is a complicated question, it is not so “confusing and
ambiguous,” id. at 104, that the answer of “no” could be found literally true.

B.    Thomas Martin

      1.     Standard of Review

       “We review a district court's factual findings in support of an obstruction of
justice enhancement for clear error.” United States v. Flores, 362 F.3d 1030, 1037
(8th Cir. 2004) (quoting United States v. Molina, 172 F.3d 1048, 1058 (8th
Cir.1999)). “We review the application of the sentencing guidelines to the facts de
novo. ” Id. (quoting United States v. O'Dell, 204 F.3d 829, 836 (8th Cir. 2000)).

      2.     Analysis

      The Guideline concerning obstruction of justice reads:

      If (A) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice during the course of the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (B) the obstructive conduct related to (i) the defendant’s
      offense of conviction and any relevant conduct; or (ii) a closely related
      offense, increase the offense level by 2 levels.

U.S. Sentencing Guidelines Manual §3C1.1 (2003). A non-exhaustive list of
examples of conduct to which this section applies appears in Application Note 4.

                                         -21-
This list includes “producing or attempting to produce a false, altered, or counterfeit
document or record during an official investigation or judicial proceeding.” Id.
§ 3C1.1 cmt. n.4(c). It also lists the following conduct as falling under the section:

      [D]estroying or concealing or directing or procuring another person to
      destroy or conceal evidence that is material to an official investigation
      or judicial proceeding (e.g., shredding a document or destroying ledgers
      upon learning that an official investigation has commenced or is about
      to commence), or attempting to do so; however, if such conduct
      occurred contemporaneously with arrest (e.g., attempting to swallow or
      throw away a controlled substance), it shall not, standing alone, be
      sufficient to warrant an adjustment for obstruction unless it resulted in
      a material hindrance to the official investigation or prosecution of the
      instant offense or the sentencing of the offender;

Id. § 3C1.1 cmt. n.4(d).

      On appeal, Martin argues that an obstruction of justice enhancement requires
proof of illicit wilfulness and materiality and that the government did not meet this
burden of proof. He also argues that the obstruction of justice enhancement should
not apply because the government was not prejudiced by his actions. We find these
arguments unpersuasive.

       First, Martin argues that his conduct was not willful. Martin correctly points
out that the term “willful” has a “a ‘wide variety of definitions’” in the case law.
United States v. Oppedahl, 998 F.2d 584, 585 (8th Cir. 1993) (citation omitted).
However, it is difficult to imagine a definition of “willful” that would exclude
Martin’s conduct here. Even the cases Martin cites put Martin’s actions squarely in
the category of “willful” behavior. As stated in one such case:

      It is true that the guideline text incorporates a requirement of “willful”
      conduct. Indeed, we have recognized that “the term ‘willfully’ should
      be reserved for the more serious case, where misconduct occurs with


                                         -22-
      knowledge of an investigation, or at least with a correct belief that an
      investigation is probably underway.”

Brown v. United States, 169 F.3d 531, 536 (8th Cir. 1999) (quoting Oppedahl, 998
F.2d at 586). Martin’s conduct was the “more serious case.” Martin clearly knew or
believed an investigation was underway when he stated he planned to destroy
evidence. In fact, the government subpoena was the subject of the taped conversation
in which he made those statements. Arranging payment by Daniel Hinton happened
subsequently, so Martin also knew of the investigation when he told Daniel Hinton
to backdate the checks.

       Next, he argues that “[i]f Mr. Martin’s conduct did not impede the investigation
in a material way, he did not obstruct justice.” Here, Martin attempts to apply an
exception to his case that is only available for those who destroy or conceal
documents contemporaneously with arrest. Section 3C1.1’s Application Note 4(d)
states that destroying or concealing evidence constitutes obstruction,

      however, if such conduct occurred contemporaneously with arrest (e.g.,
      attempting to swallow or throw away a controlled substance), it shall
      not, standing alone, be sufficient to warrant an adjustment for
      obstruction unless it resulted in a material hindrance to the official
      investigation or prosecution of the instant offense or the sentencing of
      the offender[.]

Because Martin’s actions were not contemporaneous with arrest, the exception cannot
apply.

       In addition, Martin argues that backdating the checks was “mere tinkering” and
did not warrant the obstruction of justice enhancement. However, we find the
backdating of the check qualified as “producing or attempting to produce a false,
altered, or counterfeit document or record during an official investigation or judicial
proceeding,” which is expressly included under the obstruction of justice guideline.
U.S. Sentencing Guidelines Manual § 3C1.1 cmt. n.4(c).

                                         -23-
C.    The Government’s Cross-Appeal—Biernat’s Minor Role Adjustment

      1.     Standard of Review

       “It is well-established that a district court’s determination of whether a
defendant was a minor participant may only be reversed if clearly erroneous.” United
States v. Johnson, 358 F.3d 1016, 1017 (8th Cir. 2004). “A finding is clearly
erroneous when the reviewing court, on the basis of all the evidence, is left with the
definite and firm conviction that a mistake has been made.” United States v. Wells,
127 F.3d 739, 745 (8th Cir. 1997).

      2.     Analysis

      Biernat was sentenced as a “minor participant” in the crime, and thus received
a two-level decrease in his offense level at sentencing. A minor participant is one
“who is less culpable than most other participants, but whose role could not be
described as minimal.” U.S. Sentencing Guidelines Manual § 3B1.2 cmt. n.5. A
defendant whose participation is minimal is “plainly among the least culpable of
those involved in the conduct of a group” and this deduction is used when the
defendant lacks “knowledge or understanding of the scope and structure of the
enterprise and of the activities of others.” Id. § 3B1.2 cmt. n.4.

      The government argues that Biernat did not deserve the two-level adjustment.
“‘The propriety of a downward adjustment is determined by comparing the acts of
each participant in relation to the relevant conduct for which the participant is held
accountable and by measuring each participant’s individual acts and relative
culpability against the elements of the offense.’” Johnson, 358 F.3d at 1018 (quoting
United States v. Ramos-Torres, 187 F.3d 909, 915 (8th Cir. 1999)).

       At sentencing, the district court stated its reasons for awarding Biernat the two-
level adjustment. The district court found that the scheme to provide free plumbing

                                          -24-
was Martin’s idea, and that it was Martin who was the motivating factor behind it.
While Martin arranged for the plumbing work to be done, and Martin arranged for
payment to be drawn from the Union’s market recovery fund, Biernat was a passive
recipient of these services. The district court therefore found that Biernat was less
culpable than Martin, and applied a two-level adjustment to Biernat’s sentence. We
agree with the district court’s analysis and find that the district court’s application of
the minor role adjustment was not clearly erroneous.

      We therefore affirm the judgment of the district court.
                      ______________________________




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