           Case: 17-12712   Date Filed: 06/04/2018   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12712
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 5:16-cr-00035-RH-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

TRACY TERESA WHITAKER,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                              (June 4, 2018)



Before MARTIN, JILL PRYOR, and EDMONDSON, Circuit Judges.
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PER CURIAM:



       Tracy Whitaker appeals her convictions for theft of government funds, 18

U.S.C. § 641, and for making false statements, 18 U.S.C. § 1001(a). Briefly stated,

Whitaker’s convictions stem from her misuse of Social Security disability benefits

she received on behalf of her minor daughter (as her daughter’s representative

payee). Whitaker was sentenced to three years’ probation and ordered to pay

restitution. No reversible error has been shown; we affirm.



                                              I.



       Whitaker first contends that the district court erred in denying her motion to

suppress statements she made during interviews with Social Security

Administration (“SSA”) claims specialist Orietta Escarra and with SSA Special

Agent Phillip Krieger. Whitaker challenges the district court’s determination that

she was not in custody when the statements were made and, thus, that she was

unentitled to an advisement of her rights under Miranda v. Arizona, 384 U.S. 436

(1966). *



*
 Whitaker makes no substantive argument on appeal challenging the district court’s
determination that her statements were made voluntarily.
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      We review the denial of a motion to suppress as a mixed question of law and

fact; we review fact findings for clear error and the application of law to the facts

de novo. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). We

construe all facts in the light most favorable to the party that prevailed in district

court. Id.

      After Escarra received information from private citizens indicating that

Whitaker was misusing SSA benefits intended for Whitaker’s minor daughter,

Escarra contacted Whitaker to arrange an interview. Whitaker was told that failure

to attend the interview would result in a suspension of her daughter’s benefits.

Whitaker was not told, however, about the allegations of fraud or that she was the

target of an investigation.

      The interview was conducted in a “standard office” that contained a desk, a

computer, and chairs. The office had two doors: one leading directly to the lobby

of the SSA building and one leading to the building’s interior. During the

interview, Escarra sat at the desk in front of the computer, while Whitaker sat in a

chair on the opposite side of the desk. Escarra asked Whitaker basic questions

similar to those listed on the routine SSA representative payee reports. In response

to Escarra’s questions, Whitaker reported falsely that her daughter lived with her

and that she used her daughter’s SSA benefits to pay for her daughter’s care and

maintenance.


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      After about 30 minutes of questioning, Escarra excused herself and returned

5 minutes later with Agent Krieger. Agent Krieger sat in a chair at the end of the

desk. Agent Krieger identified himself as a law enforcement officer and told

Whitaker he wanted to interview her. Agent Krieger told Whitaker expressly that

she was not under arrest and that she was free to leave. Agent Krieger also

presented Whitaker with a non-custodial advisement-of-rights form. Agent

Krieger read -- and Whitaker said she understood -- each section of the one-page

form. Among other things, the form advised Whitaker that she was not in custody,

that she had the right to remain silent, that she was not required to make a

statement, and that she was free to leave or to terminate the interview at any time.

      Upon Whitaker’s request, Agent Krieger prepared a written statement based

on Whitaker’s responses during the interview. In her written statement, Whitaker

admitted that her daughter lived solely with her father, that Whitaker reported

falsely to the SSA that her daughter lived with her so that Whitaker could continue

to receive SSA payments on her daughter’s behalf, and that she had been using the

SSA payments to pay for her own living expenses. When the interview was over,

Agent Krieger went over each paragraph of the written statement; and Whitaker

confirmed that the statement was accurate and that she wanted to add, change, or

remove nothing. Agent Krieger’s interview lasted about one hour.




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      That Whitaker was not advised of her Miranda rights is undisputed. A

Miranda warning is required, however, only when a person is “in custody” when

they made the challenged statement. United States v. Muegge, 225 F.3d 1267,

1269-70 (11th Cir. 2000). A person is considered “in custody” for purposes of

triggering Miranda warnings when “there is a formal arrest or restraint on freedom

of movement of the degree associated with a formal arrest.” California v. Beheler,

463 U.S. 1121, 1125 (1983) (quotation omitted). In determining whether a person

was “in custody,” we consider whether -- given the totality of the circumstances --

a reasonable innocent person “in the suspect’s position would feel a restraint on his

freedom of movement fairly characterized as that degree associated with a formal

arrest to such extent that he would not feel free to leave.” Muegge, 225 F.3d at

1270 (quotations omitted).

      Factors that bear on whether a person is in custody include “whether the

officers brandished weapons, touched the suspect, or used language or a tone that

indicated that compliance with the officers could be compelled, as well as the

location and length of the detention.” United States v. Luna-Encinas, 603 F.3d

876, 881 (11th Cir. 2010) (citation and quotation omitted). We may also consider

other things: for example, statements made during the interview, the presence of

physical restraints during questioning, and “the release of the interviewee at the

end of the questioning.” Howes v. Fields, 565 U.S. 499, 509 (2012). Moreover,


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“that an individual is told he is not under arrest and is free to leave is a fact of

substantial importance in determining whether a reasonable person would have felt

free to leave.” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006).

      Considering the totality of the circumstances, we conclude that Whitaker

was not “in custody” during her interviews with Escarra or with Agent Krieger

and, thus, no Miranda warning was required. The interviews took place in a

standard office space located just off the lobby of the SSA building, that is, with

easy means to leave. During the interviews, Escarra, Agent Krieger and Whitaker

were seated in chairs around a desk. Nothing evidences that either Escarra or

Agent Krieger brandished a weapon, touched Whitaker, placed Whitaker in

restraints, or otherwise threatened or intimidated Whitaker verbally or physically.

Whitaker was also permitted to leave the room and the SSA building after the

interview concluded.

      During her interview with Escarra, Whitaker was asked only routine

questions about SSA benefits. On this record, a reasonable innocent person in

Whitaker’s position would not have felt a restraint on her freedom of movement to

the degree associated with a formal arrest.

      About Whitaker’s interview with Agent Krieger, Agent Krieger told

Whitaker expressly that she was not under arrest, opened and closed the door to

show her she could leave, and told her she was free to go at any time if she did not


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want to speak with him. Agent Krieger also read Whitaker a non-custodial

advisement-of-rights form, which advised expressly that Whitaker was free to

leave or to terminate the interview at any time. Both Agent Krieger’s conduct and

this form statement constitute strong evidence that a reasonable innocent person in

Whitaker’s situation would have felt free to leave. See Brown, 441 F.3d at 1347

(“absent a finding of restraints that are so extensive that telling the suspect he was

free to leave could not cure the custodial aspect of the interview,” such

advisements generally “lead to the conclusion that the defendant is not in custody.”

(emphasis in original)). Whitaker also testified that Agent Krieger was “very nice”

during the interview, and nothing evidences that Agent Krieger engaged in

threatening or coercive conduct. Under these circumstances, an objectively

reasonable innocent person would have felt free to leave. That Whitaker may have

felt subjectively compelled to comply with Escarra and with Agent Krieger out of

concern about losing her or her daughter’s SSA benefits does not change our

conclusion. See Oregon v. Elstad, 470 U.S. 298, 304-05 (1985) (noting that the

Fifth Amendment is not implicated by “moral and psychological pressures to

confess emanating from sources other than official coercion.”).

      Because Whitaker was not “in custody” when she made her statements to

Escarra and to Agent Krieger, a Miranda warning was not mandated; no




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constitutional violation occurred. The district court committed no error in denying

Whitaker’s motion to suppress.



                                          II.



      Whitaker also challenges the district court’s denial of her motion for

judgment of acquittal. In support of her motion, Whitaker argued that the

government failed to prove that the SSA payments constituted “property of the

United States” for purposes of 18 U.S.C. § 641 after they were deposited in her

bank account.

      “We review de novo a district court’s denial of a motion for judgment of

acquittal, viewing the evidence in the light most favorable to the government and

drawing all reasonable inferences in favor of the jury’s verdict.” United States v.

Slaton, 801 F.3d 1308, 1313 (11th Cir. 2015). To sustain a conviction under 18

U.S.C. § 641, the government must establish beyond a reasonable doubt that (1)

the property belonged to the government; (2) the defendant appropriated

fraudulently the property for her own use; and (3) the defendant did so knowingly

and willfully with the intent to either temporarily or permanently deprive the

owner of the use of the property. United States v. McRee, 7 F.3d 976, 980 (11th

Cir. 1993) (en banc). Only the first element is at issue here.


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      In the light of our decision in McRee, we reject Whitaker’s argument that

the SSA payments once deposited into her bank account were no longer

government property. In McRee, we concluded that the government retained a

property interest in the proceeds of an erroneously issued check, even when the

recipient did nothing to induce the issuance of the check. Id. at 981-82. In this

case -- unlike the defendant in McRee -- Whitaker admitted that she made

intentionally and knowingly false statements to the SSA to induce the SSA to

continue sending her daughter’s SSA benefits to Whitaker. Whitaker said she

knew the SSA would stop sending payments if she reported truthfully that her

daughter no longer lived with her and that she had been using her daughter’s SSA

benefits for her own living expenses. Because Whitaker failed to comply with her

duties as a representative payee and was in fact unentitled to receive SSA

payments on behalf of her daughter, the SSA benefits were issued to Whitaker in

error. On this record, we conclude that the government retained a property interest

in the proceeds of the erroneously-issued SSA payments even after they were

deposited into Whitaker’s bank account. See id. The district court committed no

error in denying Whitaker’s motion for judgment of acquittal.

      AFFIRMED.




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