                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4559


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JERRY ELMO HARTSOE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Cameron McGowan Currie, Senior
District Judge. (3:13-cr-00479-CMC-1)


Submitted:   January 14, 2015             Decided:   January 29, 2015


Before DUNCAN and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


William W. Watkins, Sr., WILLIAM W. WATKINS, PA, Columbia, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney, T. DeWayne Pearson, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                 Jerry Elmo Hartsoe was convicted by a jury of eight

counts      of    mail     fraud,     in    violation       of    18    U.S.C.    §§ 2, 1341

(2012); and one count of making false statements, in violation

of     18    U.S.C.       § 1001      (2012).            Hartsoe       asserts    that     his

convictions            should   be    vacated        because      he    argues    that     the

district court erred when it allowed into evidence statements he

made    to       law    enforcement        before       being    read    his     rights,    in

accordance         with     Miranda        v.    Arizona,       384    U.S.    436   (1966).

Finding no error, we affirm.

                 We review the factual findings underlying the district

court’s denial of a motion to suppress for clear error and the

court’s legal conclusions de novo.                       United States v. Kelly, 592

F.3d 586, 589 (4th Cir. 2010); United States v. Colonna, 511

F.3d 431, 434 (4th Cir. 2007).                       When a suppression motion has

been denied, this court “construe[s] the evidence in the light

most favorable to the [G]overnment.”                            Id.     “Moreover, when a

district court’s factual finding is based upon assessments of

witness credibility, such finding is deserving of the highest

degree of appellate deference.”                      United States v. Thompson, 554

F.3d     450,      452     (4th      Cir.       2009)    (internal       quotation       marks

omitted).

                 There is no dispute that Miranda warnings are required

when a subject is interrogated while in custody.                               Miranda, 384

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U.S. at 444.         The test for determining whether an individual is

in custody for Miranda purposes is whether, under the totality

of   the     circumstances,      the     suspect’s    freedom        of    action     is

curtailed to a degree associated with formal arrest.                           Berkemer

v. McCarty, 468 U.S. 420, 440 (1984).                Thus, the key question is

whether, viewed objectively, a reasonable man in the suspect’s

position would have believed he was “in custody.”                    Id. at 442.

                 Because Hartsoe’s presence was voluntary at all times

prior to, during, and after his interview by law enforcement, we

find it unlikely that a reasonable person in Hartsoe’s position

would have believed himself to be in custody during the search

of   his    business.         Hartsoe    was   not   summoned       to    the    search

location by law enforcement, law enforcement agents were not

actively seeking Hartsoe, nor did they do anything to encourage

his arrival.         In fact, when Hartsoe arrived at the scene of the

search, law enforcement asked Hartsoe to leave.                      And Hartsoe’s

own testimony evidences that his demeanor upon arriving at the

scene      was    aggressive    and     demanding,    and   not      indicative       of

someone      who     was    intimidated    and   believed       he       was    in   law

enforcement custody.

              Once inside the location of the search, the record

establishes        that    Hartsoe    voluntarily    entered    a    separate        room

with the agents so he could escape the commotion caused by law

enforcement’s search, and the agents informed him that he was

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not    under    arrest   and    that    he    was   free    to    leave.     In    fact,

Hartsoe      testified   that    he    approached     two    agents    to    ask    them

questions about the search warrant, and that he ultimately ended

the conversation with the agents by telling them to “Call me

when you’re done, I’ll come back.”

               Based on the foregoing, we find that a reasonable man

in Hartsoe’s position would not have believed himself to be “in

custody.”       See United States v. Hargrove, 625 F.3d 170, 179-82

(4th    Cir.    2010)    (finding      defendant     not    “in     custody”      during

police questioning where some officers were armed upon entry of

the defendant’s home; officers directed the occupants’ actions

during the initial safety sweep of the residence, and conducted

a safety pat down of the defendant; only two agents were with

the    defendant    during     the     interview;     the    defendant      was    never

placed in handcuffs and although the agents who questioned him

were armed, their firearms were not drawn during the interview

and they did not threaten defendant; one of the agents told the

defendant prior to the interview that he was not under arrest

and    was   free   to   leave;      the     interview     was    conducted    at   the

defendant’s residence and not a law enforcement facility; and

the defendant was free to move about his home during the search

so long as he did not interfere with the search).

               Accordingly, we affirm the district court’s judgment.

We    dispense    with   oral    argument        because    the    facts    and    legal

                                             4
contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                                AFFIRMED




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