                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1109
                                   ___________

United States of America,           *
                                    *
          Plaintiff-Appellee,       *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * District of Minnesota
Melvin Dewayne Lockett,             *
                                    *
          Defendant-Appellant.      *
                               ___________

                             Submitted: November 16, 2004
                                Filed: January 7, 2005
                                 ___________

Before MURPHY, HANSEN and MELLOY, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.


       Melvin Dewayne Lockett was convicted by a jury of being an armed career
criminal in possession of a firearm and of possessing an unregistered firearm, and he
was sentenced by the district court1 to 262 months. Lockett appeals, arguing that the
district court erred in admitting inculpatory statements obtained in violation of his
Miranda rights and that there was insufficient evidence to prove he possessed a
firearm. We affirm.

      1
       The Honorable Judge David S. Doty, United States District Judge for the
District of Minnesota.
        Lockett got into an argument with one of the bartenders at Reaney's Bar on the
evening of August 30, 2002. He left, but threatened to come back with a weapon and
"blow...off" heads. Lockett returned after the bar had closed, beat on the locked door,
and made threats. He kept on pounding until the bouncer and a customer opened the
door and confronted him. When the customer jumped on top of him, he discovered
that Lockett was carrying a sawed off shotgun. The two took the shotgun away and
went back inside, where they sat around and had a drink with the bartenders and
talked "about what to do." After awhile they left for the bouncer's home and decided
to call the police. Since the bouncer was a convicted felon just released from jail who
did not want to get involved with law enforcement, they made the call from outdoors.
When officers responded, a bartender and the customer turned over the shotgun and
described the suspect they knew as "Melvin."

       A week later, two officers saw Lockett in the vicinity of the bar and observed
that he looked like the suspect described by the witnesses. They went up to him,
introduced themselves as police officers, and asked to speak with him. Lockett told
the officers his name and address. They asked Lockett to sit in the back of their
squad car while they waited for a witness to come for a possible identification.
Lockett was not handcuffed and the car door was left open while they waited.
Lockett was neither placed under arrest nor given Miranda warnings.

       Once in the squad car, Lockett volunteered some incriminating statements.
First, Lockett asked if this was all "about that shotgun thing last week?" The officers
responded that they were investigating alleged threats and were waiting for a positive
identification. Lockett kept talking without questioning from the officers. He asked
them "what would you do," and commented that "I am not going to deny it; I had a
gun because they all had guns." When the witness arrived, Lockett was identified as
being the man who had the shotgun at the bar, but the officers released him on the
instructions of their sergeant.



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       Later that day the police received a complaint from employees at Reaney's Bar
that Melvin had made additional threats. Officers were dispatched to Lockett's
apartment to arrest him, but he was not there so they waited. When he came home,
he asked why they were in his apartment. The officers stated that they were looking
for Melvin Lockett and asked that he identify himself. He did and was then arrested.
While he was being handcuffed and without further questioning, Lockett told the
officers: "You ain't smart enough to find my guns. I'm a felon." Lockett was
identified by a witness to the shotgun incident and transported to police headquarters
where he asked an officer why he had been arrested. The officer told him he had been
arrested for terroristic threats, and Lockett replied: "How can I be arrested for
terroristic threats? They took my gun last week. People in the bar got my gun." No
Miranda rights had been given to him up to this point.

        A grand jury indicted Lockett for being an armed career criminal in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and for possessing an
unregistered firearm, in violation of 26 U.S.C. § 5861(d). Prior to trial, Lockett
moved to suppress the incriminating statements he had made in the squad car, at his
apartment, and at police headquarters, contending that they were all the product of
custodial interrogation conducted without his receiving Miranda rights. After an
evidentiary hearing, a magistrate judge2 issued a Report and Recommendation
recommending that his motion be denied. The magistrate found that Lockett was not
in custody when he made his statements in the squad car and that all of Lockett's
statements were voluntary. Lockett filed no objection, and the district court adopted
the magistrate's findings and recommendation and denied his motion to suppress.
The case proceeded to trial, and the jury returned guilty verdicts on both counts.
Lockett was sentenced to concurrent terms of 262 months imprisonment for being an
armed career criminal in possession of a firearm and 120 months for possessing an
unregistered firearm. He appeals.

      2
       The Honorable Janie S. Mayeron, United States Magistrate Judge for the
District of Minnesota.

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       Lockett first argues that the district court erred in denying his motion to
suppress his incriminating statements because they were the product of custodial
interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The
government contends that all of Lockett's statements were voluntarily made. The
government also argues that Lockett was not in custody while seated in the squad car
during his first meeting with the police. Since Lockett filed no objection to the
magistrate's report and recommendation, we review the findings of fact underlying
his appeal for plain error and the admissibility of his statements de novo. United
States v. Collins, 321 F.3d 691, 694 (8th Cir. 2003).

        Under Miranda, the government is prohibited from using statements made
during custodial interrogation unless the defendant has been previously advised of his
Fifth Amendment privilege against compulsory self incrimination and right to an
attorney. Id. at 444. Because "[v]olunteered statements of any kind are not barred
by the Fifth Amendment," Miranda concerns do not arise in the absence of police
interrogation, however. Id. at 478. Interrogation is not limited to "express
questioning," for it also includes "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." Rhode Island v. Innis, 446 U.S.
291, 301 (1980). Interrogation does not generally include "routine processing-type
questions" such as the name and address of a suspect. United States v. Reyes, 908
F.2d 281, 287 (8th Cir. 1990).

       Here, none of Lockett's contested statements was the product of police
interrogation. Lockett's comments while seated in the squad car were not made in
response to police questioning. Lockett characterizes as "unbelievable" the officer's
assertion that no questions were posed while he was seated in the vehicle, but he
introduced no testimony to the contrary. The magistrate's finding that the officer's
testimony was believable is deserving of deference. See United States v. Martin, 28
F.3d 742, 745-46 (8th Cir. 1994) (magistrate's determination of witness credibility
"'virtually unreviewable on appeal'") (quoting United States v. Candie, 974 F.2d 61,

                                          -4-
64 (8th Cir. 1992)). Lockett's suggestion that the officer effectively interrogated him
by noting that the police were investigating alleged threats is not persuasive, for the
officer's remark came in response to Lockett's inquiries about the investigation and
was part of a conversation "normally attendant to arrest and custody." See Innis, 446
U.S. at 301; United States v. Henderson, 770 F.2d 724, 728 (8th Cir. 1984) (postal
inspector's responses to suspect's questions about the charges against him were
routine conversation, not interrogation). Lockett's statements in the squad car were
voluntarily made, and their admission was not in violation of Miranda.

       The contested statements made by Lockett at the time of his arrest and at police
headquarters were also voluntary. Lockett again characterizes as unbelievable the
arresting officer's assertion that no questions were asked of Lockett during this
period, but he offers no testimony to the contrary. The magistrate's determination of
the officer's credibility is entitled to deference. See Martin, 28 F.3d at 745-46.
Lockett also asserts that the police engaged in the functional equivalent of
interrogation by stating that they were "looking for" him when he asked why they
were in his apartment, and by explaining that he was suspected of making terroristic
threats when asked why he was being arrested. The officers had no reason to believe
that these statements would elicit incriminating responses from Lockett. The
statements were instead responses to Lockett's own inquiries and thus part of a
conversation "normally attendant to arrest and custody." See Innis, 446 U.S. at 301;
Henderson, 770 F.2d at 728. Lockett's statements were voluntarily made, not the
products of police interrogation. The district court did not therefore err in admitting
them, despite the officers' failure to administer the Miranda warnings.

       Lockett argues, finally, that the government failed to introduce evidence
sufficient to support a jury finding that he possessed a weapon beyond a reasonable
doubt. In support of his argument, Lockett cites disagreement among witnesses
concerning the precise timing of the events at the bar and asserts that, as a result of
the discrepancies, their testimony cannot be believed. In reply, the government


                                         -5-
contends that far more evidence than necessary was introduced, and that the
determination of witness credibility is not the province of this court but of the jury.

      In considering the sufficiency of the evidence underlying a jury verdict, the
scope of our review is quite limited. A conviction will be reversed on insufficiency
grounds only if, "after viewing the evidence in the light most favorable to the jury's
verdict, giving the government the benefit of all reasonable inferences that may be
drawn from the evidence, no construction of the evidence will support the jury's
verdict." United States v. Hollingsworth, 257 F.3d 871, 878 (8th Cir. 2001), cert.
denied, 534 U.S. 1100 (2002). So long as a reasonable jury could have found the
defendant guilty beyond a reasonable doubt, a conviction may not be overturned.
United States v. Medearis, 380 F.3d 1049, 1060 (8th Cir. 2004).

        Lockett has not demonstrated that a reasonable jury must have entertained a
reasonable doubt as to his possession of the sawed off shotgun. Three witnesses
testified to the removal of the gun from Lockett, and four officers testified to
Lockett's various admissions of gun possession. We are not in the best position to
judge the credibility of these witnesses, and here the finder of fact was a jury. See
United States v. Hill, 249 F.3d 707, 714 (8th Cir. 2001) ("Witness credibility is within
the province of the jury, which we are not allowed to review."). The district court did
not err in denying Lockett's motion for judgment of acquittal on the basis of
insufficient evidence.

      For these reasons the judgment of the district court is affirmed.

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