                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-4336


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ERIC GILES,

                Defendant - Appellant.



                            No. 12-4403


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KYLE MARK CORSI,

                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.    Robert J. Conrad,
Jr., Chief District Judge.   (3:09-cr-00203-RJC-DCK-1; 3:09-cr-
00203-RJC-DCK-5)


Argued:   March 21, 2013                  Decided:   April 12, 2013
Before MOTZ and DUNCAN, Circuit Judges, and Robert E. PAYNE,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Carol Ann Bauer, Morganton, North Carolina; William
David Auman, AUMAN LAW OFFICES, Asheville, North Carolina, for
Appellants. William Michael Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.    ON BRIEF:
Anne M. Tompkins, United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        Eric   Giles   and    Kyle     Corsi     appeal         from     conspiracy

convictions    involving     drug   trafficking,     money       laundering,   and

money structuring.     Finding no error, we affirm.



                                       I.

                                       A.

        Giles and Corsi were members of a marijuana distribution

ring operating in Chapel Hill and Charlotte, North Carolina.                    As

the ring-leader, Giles would travel to California to procure

“high-grade”     marijuana.          Giles   would       then     send    packages

containing several pounds of marijuana through the mail from a

fictitious business -- Norcal Athletics -- to Corsi and other

distributors back in North Carolina.              When a package arrived,

Giles would send a text message that “the eagle has landed” to

notify a given distributor that the package was ready for pickup

and distribution.       To finance the purchases, the distributors

made large cash deposits into bank accounts that Giles managed.

However, pursuant to Giles’ instructions, the distributors kept

their     individual   deposits      under     $10,000     to     avoid    federal

reporting requirements.        Over its three years of operation, the

distribution ring sold over one hundred kilograms of marijuana

and made deposits totaling several hundred thousands of dollars.



                                       3
       On   October        26,    2009,       after    over       a    year    tracking       the

operation      and     intercepting           packages        containing        marijuana      en

route from “Norcal Athletics” to North Carolina, federal agents

arrested      Giles     in       Charlotte.           With     Giles’     consent,        agents

searched      his    vehicle       and    confiscated         his     cellular     phone      and

approximately        one     pound       of    marijuana.         At    that     time,     Giles

identified his source of marijuana in California, but stated

that    any    packages          sent    by    Norcal        Athletics        contained      only

athletic      gear,    and       denied       knowledge      of   the    contents       of   the

package of marijuana seized from his car.                         That same day, agents

searched      Giles’    residence,            and   discovered        receipts     and     other

documentation linking him to shipments from California to North

Carolina.

       On the evening of Giles’ arrest, six federal agents and two

uniformed police officers went to Corsi’s residence to attempt

to speak with him about the marijuana distribution ring.                                   After

Agent Christopher Morgan and a uniformed officer knocked on the

door to Corsi’s residence, Corsi stepped out onto his porch.

His    roommate,        Angelica          Grist,       followed         him     out     shortly

thereafter.          When     Grist       exited      the     residence,        Agent    Morgan

detected the smell of burnt marijuana coming from inside.                                 Agent

Morgan informed Corsi that the officers had information that

there might be narcotics in the residence, and hoped to talk



                                                4
with him and obtain his consent for a search.                    Corsi became

agitated and denied the officers consent to enter the house.

     Concluding that Corsi would not talk or provide consent for

a search, Agent Morgan began speaking to Grist.                  Over Corsi’s

objections, Grist consented to a search of just her room.                    Grist

led Agent Morgan and another officer to her room on the second

floor.    During the search, Agent Thomas Nelson and two other

officers restricted Corsi’s movement to a small area just inside

the front door.       After several minutes, Corsi shouted upstairs

that he knew why the officers were there and that he was ready

to talk and “be a man about it.”

     Corsi led Agents Morgan and Nelson to his kitchen.                       Once

the interview began, Corsi, now calm, admitted that he had been

receiving high-grade marijuana from California through the mail.

He   explained      that   his    supplier     would   send     text    messages

indicating when the packages had arrived in North Carolina and

were ready for pickup.           Corsi also explained that other members

of the ring would deposit money into the drug supplier’s bank

account to prepay for the marijuana, but stated that he had

never done so.        However, after Agent Morgan showed Corsi bank

surveillance photographs of him and an unidentified woman (who

Corsi then identified as his girlfriend) making cash deposits,

Corsi    admitted     to   making    several    deposits      into     the    drug

supplier’s   account.       After    approximately     thirty    minutes,      the

                                       5
agents concluded the interview and left the residence without

arresting Corsi.

       A week later, on November 3, several agents and officers

returned and arrested Corsi at his residence.         Upon his arrest,

an agent read Corsi his Miranda rights.        Corsi indicated that he

understood his rights, and an officer transported Corsi to the

courthouse for his initial appearance.        Before taking Corsi into

the courthouse, the officer took Corsi to meet Agent Morgan in

the courthouse parking lot.        Agent Morgan ascertained from the

officer that Corsi had been informed of his Miranda rights, and

then   asked   Corsi   several   clarifying   questions   regarding   his

October 26 statements.       Corsi confirmed several statements from

his earlier interview, including that packages he received from

Norcal    Athletics    had   contained   marijuana.       Agent   Morgan

terminated the interview when Corsi indicated he needed to use

the restroom.    At no point during the interview did Corsi invoke

his right to remain silent or his right to an attorney.

                                    B.

       On June 16, 2010, a grand jury returned a third superseding

indictment charging Giles and Corsi with conspiracy to possess

with intent to distribute marijuana, conspiracy to commit money

laundering, and conspiracy to structure a currency transaction

for the purpose of evading reporting requirements.            The grand



                                    6
jury also charged Giles with an additional count of conspiracy

with intent to distribute marijuana, and four firearms offenses.

      Prior to trial, Corsi moved to suppress the statements he

had made to Agents Morgan and Nelson at his residence on October

26, and the statements he had made to Agent Morgan following his

arrest on November 3.        At an evidentiary hearing on the motion,

Corsi orally moved for a continuance to procure the testimony of

Grist, his roommate who was present on October 26.                          Corsi’s

counsel stated that despite her efforts, and Grist’s promises to

meet her, she had been unable to serve Grist with a subpoena to

testify.      The court indicated its intent to deny the motion,

concluding    that   Corsi   had    had    “plenty    of    time”   to   subpoena

Grist; however, the court left “the decision of the Court open

until   the    end   of    jury     selection,”      providing      Corsi     three

additional    days   to    locate    Grist.       Grist     never   appeared    to

testify.

      During the suppression hearing, Agents Morgan and Nelson

and another officer testified as to the events leading up to and

including Corsi’s October 26 interview.                    They testified that

they neither arrested Corsi nor told him he was under arrest;

that they neither drew nor threatened to draw a weapon on Corsi;

and that they only restricted Corsi’s movement to ensure that he

did not destroy evidence during their search of Grist’s room.

The   officers   also     testified    that   Corsi    volunteered       for   the

                                       7
interview during the search of Grist’s room; that Corsi chose

the     kitchen     as      a   location        for     the       interview;        that    they

instructed Corsi that he was not under arrest and could refuse

to answer questions at any time; and that Corsi, though agitated

earlier, remained calm throughout the thirty-minute interview.

      Corsi testified that the officers had forcefully pulled him

down from the stairs outside of his residence and refused to

allow him to return inside; that he had requested an attorney

“four or five” times but was told he would not be permitted to

contact his lawyer; and that he several times asked the officers

to    leave   his      residence.              Corsi    stated          that    the   officers

intimidated Grist by threatening her with charges for anything

found in the house.             Corsi further testified that when Grist led

the   officers      inside        to    her     room,       he    tried    to    follow,      but

officers flanked him with their hands going toward their weapons

and again denied his request for an attorney.                              Corsi maintained

that,    after    he     agreed        to   speak     with       the    officers,     he   again

requested, and was denied, an attorney, and that while at the

kitchen table, one of the agents stated that if he did not

answer    their     questions,          both    he    and    his       girlfriend     would    be

charged    based       on   the    bank        surveillance            photographs.        Corsi

concluded that during the interview he felt constrained “[t]he

whole time” and “was not free to leave.”



                                                8
      Regarding        his        post-arrest       November       3     interview,            Corsi

admitted      that     the    arresting       agent       had    read     him      his     Miranda

rights.        Corsi testified that “three or four” times officers

denied his request for counsel, but could not recall whether he

ever requested counsel in Agent Morgan’s presence or during the

interview.

      After considering all of the testimony, the court credited

the officers’ and found Corsi’s not credible.                                On that basis,

the   court     held       that    Corsi    was     not    in    custody        when      he    made

statements      during       the     October       26     interview,         and    that       Corsi

voluntarily         waived    his    Miranda       rights       during       his    November       3

post-arrest interview.               As such, the court denied Corsi’s motion

to    suppress       the     Government’s         planned       testimony          from    Agents

Morgan and Nelson as to Corsi’s statements on October 26 and

November 3.

      Over Corsi’s motion to sever, Giles and Corsi were then

tried together before a jury.                      At trial, both Giles and Corsi

objected       to    the     Government’s         introduction          of    text        messages

extracted from Giles’ cellular phone seized during his arrest.

The    court     overruled         the     defendants’          general      objection,          but

ultimately      admitted          only   those      messages       that      the     Government

could tie to co-conspirators through testimony.                               In addition to

testimony of investigating officers as to the text messages, the

packages confiscated, the money laundering and reporting evasion

                                               9
scheme, and Corsi’s October 26 and November 3 statements, the

Government also produced the testimony of several customers and

unindicted co-conspirators of the distribution ring.

     After the close of evidence, both Giles and Corsi moved for

acquittal.   The district court denied the motions, and the jury

returned a unanimous verdict, acquitting Giles of one firearms

charge, and convicting both defendants of the remaining charges

against them.

     The court sentenced Corsi to the statutory minimum 120-

months’   imprisonment;      it   sentenced        Giles   to    196-months’

imprisonment.     These consolidated appeals followed.



                                   II.

     Giles and Corsi present one joint, and several individual,

challenges   to    their   convictions.       We    consider    their   joint

challenge first, and then the individual challenges.

                                   A.

     Both Giles and Corsi appeal the district court’s admission

of text messages obtained from Giles’ cellular phone.             We review

the district court’s decision to admit the text messages for

abuse of discretion.       United States v. Ayala, 601 F.3d 256, 267

(4th Cir. 2010).

     Giles and Corsi argue that the court erred by admitting the

messages as party admissions under Fed. R. Evid. 801(d)(2)(A),

                                   10
when they should have been considered as statements between co-

conspirators       under   Fed.    R.    Evid.    801(d)(2)(E).        Contrary      to

their argument, however, the district court in fact did admit

the text messages as statements between co-conspirators.                            See

Joint     Appendix     852-53,       909.          Further,      considering        the

defendants’ failure on appeal to demonstrate that any of the

admitted    text    messages      were    not    sent   “in    the   course   and    in

furtherance of the conspiracy,” Bourjaily v. United States, 483

U.S. 171, 183 (1987), we cannot say that the district court

abused its discretion by admitting the text messages. 1

                                           B.

        Corsi raises five additional issues on appeal.

     First, he appeals the denial of his motion to continue his

suppression hearing so that his counsel could subpoena Grist.

We review a denial of a motion for continuance for abuse of

discretion,    and    reverse      only    if    any    such   abuse   specifically

prejudiced the defendant.           United States v. Hedgepeth, 418 F.3d

411, 419 (4th Cir. 2005).                 A party seeking a continuance to

     1
       At oral argument, Giles’ counsel raised the unbriefed
argument that the district court used the wrong evidentiary
standard when determining whether a conspiracy existed at the
time the text messages at issue were sent.     Even if Giles had
preserved this argument and the district court had failed to
apply   the   preponderance   of  the   evidence   standard  for
admissibility, see Bourjaily, 483 U.S. at 175, Giles fails to
demonstrate that the record does not contain sufficient evidence
of a conspiracy under that standard.



                                           11
secure the attendance of a witness must demonstrate (1) who the

witness is, (2) what his or her testimony will be, (3) that the

testimony will be relevant to the case and competent, (4) “that

the   witness    can   probably        be   obtained      if    the    continuance       is

granted,” and (5) that counsel has exercised due diligence to

obtain the witness’s attendance for the trial as set.                              United

States v. Clinger, 681 F.2d 221, 223 (4th Cir. 1982).                            In this

case, Grist’s testimony might well have been relevant.                           However,

Corsi failed to demonstrate the character and content of Grist’s

testimony,      or   that        her   presence       would    probably     have       been

obtained were the continuance granted.                    For these reasons, the

court did not abuse its discretion in denying Corsi’s motion to

continue.

      Corsi next challenges the district court’s denial of his

motion to suppress the testimony of Agents Morgan and Nelson as

to his October 26 and November 3 statements.                           “We review the

factual findings underlying a motion to suppress for clear error

and the district court’s legal determinations de novo.”                            United

States v. Davis, 690 F.3d 226, 233 (4th Cir. 2012).                         “Where, as

here, the challenged ruling entails the denial of a criminal

defendant’s     motion      to    suppress,      we   view     the    evidence    in    the

light most favorable to the government,” and will not set aside

an otherwise valid conviction if we “may confidently say, on the

whole record, that [an error] was harmless beyond a reasonable

                                            12
doubt.”     United States v. Holness, 706 F.3d 579, 588 (4th Cir.

2013) (internal quotation marks omitted).

     Corsi    maintains   that    testimony        as    to     his     October    26

statements was inadmissible because the interview was custodial,

and he was not informed of and did not waive his Miranda rights.

An   individual   is    “in    custody”     --     and    subject       to    Miranda

safeguards -- despite the lack of formal arrest when, under the

totality of the circumstances, his or her “freedom of action is

curtailed to a degree associated with formal arrest.”                        Berkemer

v. McCarty, 468 U.S. 420, 440, (1984) (internal quotation marks

omitted).     Thus, “[t]he operative question is whether, viewed

objectively, ‘a reasonable man in [Corsi’s] position would have

understood his situation’ to be one of custody.”                      United States

v.   Hargrove,    625   F.3d    170,    178      (4th    Cir.    2010)       (quoting

Berkemer, 486 U.S. at 442).

     The district court found the agents’ testimony as to the

October 26 interview credible, and Corsi’s contrary testimony

not credible.      We particularly defer to the district court’s

credibility determinations and construe the evidence presented

in the light most favorable to the government.                  United States v.

Mubdi, 691 F.3d 334, 339 (4th Cir. 2012).                Given this standard,

and considering the totality of the circumstances, we cannot

hold the court erred in finding that Corsi was not in custody

during the October 26 interview.              Undoubtedly, there was some

                                       13
coercive element to the interview, but “[a]ny interview of one

suspected of a crime by a police officer will have coercive

aspects to it, simply by virtue of the fact that the police

officer is part of a law enforcement system which may ultimately

cause    the   suspect    to   be    charged       with   a   crime.”        Oregon   v.

Mathiason, 429 U.S. 492, 495 (1977).                 This interview, similar in

its facts to those in Hargrove, 625 F.3d at 178-80, and United

States    v.   Parker,    262       F.3d   415,     419   (4th    Cir.       2001),   is

emblematic of the type of interview that, although containing

coercive aspects, does not constitute a custodial interrogation

requiring Fifth Amendment protections. 2

     Similarly,     the    district        court    did   not    err    in    admitting

testimony as to Corsi’s November 3 statements.                         Because Corsi

admitted that the arresting officers adequately informed him of

his Miranda rights, the only issue before the court was whether

Corsi waived those rights.             See United States v. Cardwell, 433

F.3d 378, 389 (4th Cir. 2005).              Although waiver must be “knowing

     2
        Further, Corsi’s statements were neither coerced nor
involuntary.   Although Corsi maintains that he only agreed to
the interview to protect Grist and his girlfriend, the record
provides no indication that the agents made explicit threats to
charge or arrest either party. Moreover, “[t]he mere existence
of threats, violence, implied promises, improper influence, or
other coercive police activity . . . does not automatically
render a confession involuntary.” United States v. Braxton, 112
F.3d 777, 780 (4th Cir. 1997).    In this case, the Government
proved by a preponderance of the evidence that Corsi’s
statements were voluntary.



                                           14
and voluntary,” it need not be express “and may be implied from

the    defendant’s            actions   and       words.”         Id.          For   “[w]hile       law

enforcement             officers         must           immediately            stop        custodial

interrogation           when     the    defendant         asserts        his    Miranda      rights,

they are free to engage in custodial interrogation when they

have       given        Miranda    warnings            and   the        defendant          does     not

specifically invoke those rights.”                        Id. (citations omitted).

          Here, the district court did not clearly err in finding not

credible Corsi’s testimony that he invoked, and was denied, his

right to counsel several times after his arrest.                                     Further, that

Corsi answered questions during the interview is sufficient to

constitute an implied waiver of his Miranda rights.                                    Id. at 390;

United States v. Frankson, 83 F.3d 79, 82 (4th Cir. 1996).

          Corsi also challenges the district court’s denial of his

motion to sever his case.                    We review a district court’s denial

of    a    motion       for    severance      for       abuse     of     discretion.          United

States v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010).                                              As a

general       rule,       particularly            strong     in    conspiracy          cases,       “we

adhere to the principle that defendants indicted together should

be    tried    together,          and    a    defendant           must    show       that    he     was

prejudiced         by    the    denial       of    a    severance        motion       in    order    to

establish that the district court abused its broad discretion in

that regard.”            Id.; see United States v. Brooks, 957 F.2d 1138,

1145 (4th Cir. 1992).

                                                   15
       Corsi   contends      that     being       tried       with    the     more-cuplable

Giles -- the kingpin of the marijuana distribution operation who

also faced several firearms charges -- “compromised” his rights

to a fair trial.          However, “[a] defendant is not entitled to

severance      merely    because       separate         trials       would     more      likely

result    in     acquittal,      or    because          the    evidence        against      one

defendant is not as strong as that against the other.”                                   United

States v. Akinkoye, 185 F.3d 192, 197 (4th Cir. 1999) (citation

omitted).        Moreover,    Corsi         does       not    allege       that    the     court

improperly     instructed     the      jury       on    considering         him    separately

from    Giles,     and   points       to    no     evidence         that    the    jury     had

difficulty       distinguishing            them.             See     United       States      v.

Strickland, 245 F.3d 368, 384 (4th Cir. 2001).                             In short, Corsi

fails to demonstrate any prejudice sufficient to show that the

district court abused its discretion in denying severance.

       Corsi additionally appeals the court’s denial of his motion

for acquittal.       We review a denial of a motion for acquittal de

novo, affirming only if “there is substantial evidence in the

record,     when    viewed    in      the        light       most     favorable       to    the

government, to support the conviction.”                       United States v. Green,

599 F.3d 360, 367 (4th Cir. 2010).

       Corsi   argues    that,      considering          his       “limited”      interaction

with the conspirators in the marijuana distribution scheme, the

Government failed to put forth substantial evidence to prove

                                             16
each element of his conspiracy charges.                         We cannot agree.         A

defendant’s connection to a conspiracy need only be “slight” to

support his conviction by substantial evidence.                           United States

v. Burgos, 94 F.3d 849, 861-62 (4th Cir. 1996) (en banc).                               In

this   case,     the     Government’s       evidence       --    including     the    text

messages       between    Corsi       and   Giles,       along     with    Corsi’s    own

confessions -- suffices to support Corsi’s conviction for the

drug     trafficking,         money    laundering,         and     money    structuring

conspiracies.          Accordingly,         we   affirm      the    district    court’s

denial of Corsi’s motion for acquittal.

       Lastly, Corsi challenges the court’s failure to hold sua

sponte     a     forfeiture          hearing       under     Fed.     R.     Crim.      P.

32.2(b)(1)(B).         Corsi admits that the court has no obligation to

hold a forfeiture hearing in the absence of a request by a

party, but argues that the court gave him no opportunity to

request     a    hearing.            However,      the     record     belies    Corsi’s

assertion,       as    both     he    and    his    counsel        were    provided     an

opportunity to object and speak at length regarding forfeiture

during sentencing.            Corsi was on notice of all property subject

to forfeiture as set forth in the indictment, and did not object

at any point nor request a hearing.                        Accordingly, we find no

basis to vacate the district court’s forfeiture order.




                                            17
                                               C.

       Giles maintains that the district court erred by failing to

continue sua sponte his sentencing hearing after he informed the

court      he    had    not   read    his     PSR. 3     We    review     the   failure      to

continue         sua     sponte      a   sentencing           hearing     for    abuse       of

discretion.          See Hedgepeth, 418 F.3d at 419.                 A court abuses its

discretion        when    its     failure      to      continue    amounts      to     an   “an

unreasoning and arbitrary insistence upon expeditiousness in the

face of a justifiable request for delay.”                         Morris v. Slappy, 461

U.S. 1, 11-12 (1983) (internal quotation marks omitted).                                     We

will       reverse      for   abuse      of    discretion         only    if    that       abuse

specifically prejudiced the defendant’s case.                             Hedgepeth, 418

F.3d at 419.

       The district court did not abuse its discretion in this

case.        Although Giles claimed he did not read his PSR, his

counsel stated that Giles read the PSR through the glass at the

jail,      and    had    discussed       the    PSR     with    counsel    prior       to   the

hearing.             Further,      Giles’       continued         references         to,    and

challenges of, his PSR during sentencing belie his claim that he

had not yet read his PSR.                In short, Giles failed to proffer any

       3
       Although Giles also argued in his brief that the court
improperly   admitted   testimony  as   to   Corsi’s   redacted
confessions, Giles conceded at argument that the testimony,
admitted   only   against   Corsi,  did  not   violate   Giles’
Confrontation Clause rights under Bruton v. United States, 391
U.S. 123 (1968), and its progeny.


                                               18
“justifiable request for delay” that the district court was not

within its broad discretion to deny.



                              III.

     For the foregoing reasons, the judgment of the district

court is

                                                      AFFIRMED.




                               19
