          United States Court of Appeals
                     For the First Circuit


No. 14-1672

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                          CAROLE SWAN,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                             Before

                       Howard, Chief Judge,
              Torruella and Barron, Circuit Judges.


     Darla J. Mondou, with whom Mondou Law Office was on brief,
for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.


                        November 21, 2016
            HOWARD, Chief Judge.     Defendant-Appellant Carole Swan,

former selectperson for the Town of Chelsea, Maine, appeals her

convictions for Hobbs Act extortion, 18 U.S.C. § 1951(a), tax

fraud, 26 U.S.C. § 7206(1), and making false statements to obtain

federal worker's compensation, 18 U.S.C. § 1920. The sole issue

raised on appeal is the district court's denial of a motion to

suppress incriminating statements made during Swan's interview

with two sheriff's deputies.        Swan argues that suppression was

required because her statements were obtained through a custodial

interrogation without the benefit of a Miranda warning.                 See

Miranda v. Arizona, 384 U.S. 436 (1966). Alternatively, she claims

that her incriminating statements were not made voluntarily.            See

Blackburn v. Alabama, 361 U.S. 199 (1960).        We affirm.

                                    I.

            The citizens of Chelsea, Maine (the "Town"), elected

Swan to serve as a selectperson, and she held that position for

nineteen years.     During the course of her tenure, however, Swan

came under investigation for allegedly using her public office to

profit at the Town's expense.       In early 2011, a deputy from the

Kennebec County Sheriff's Office ("KCSO") met with Frank Monroe,

a   local   businessman.   Monroe   told   the   deputy   that   Swan   had

instructed him to over-bill the Town for sand delivery and pay her

a $10,000 kickback.




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             After receiving this information, the KCSO set up a sting

operation.       Under the direction of the sheriff's office, Monroe

submitted an inflated bill to the Town for the amount indicated by

Swan.   The invoice was subsequently approved and a check to Monroe

was issued.       On February 3, 2011, Swan collected the check from

the Town and instructed Monroe to pick it up from the mailbox

located at the end of her driveway.            Monroe picked up the check,

while being watched by two KCSO deputies, Lieutenant Ryan Reardon

and Detective David Bucknam.        Reardon and Bucknam then gave Monroe

a bag of money, with directions to deliver it to Swan.             Monroe met

Swan and gave her the kickback.          After accepting the funds, Swan

drove to the parking lot of a nearby laundromat.               The deputies

followed Swan and parked behind her.

             As Swan made her way towards the laundromat, the deputies

stepped    out    of   their   vehicle   and   approached   her.    Reardon,

displaying his badge, called out "Carole," and told her, "I want

my money back."          Swan responded that Monroe owed her money.

Reardon reiterated that he wanted the money back.             Swan returned

to her vehicle, retrieved the bag of money, and handed it to

Reardon.     She asked whether she was in trouble.             The deputies

suggested that they discuss the issue at the sheriff's office,

rather than in the parking lot.          Swan assented and — accompanied

by Bucknam — drove herself to the station.            At some point during




                                    - 3 -
the encounter in the parking lot, Bucknam came into possession of

Swan's phone.

           At the sheriff's office, Swan met with Reardon and

Bucknam in an interview room.         The deputies assured Swan that she

was "not under arrest," that she was free to leave "[a]t any

point," and that it was "fine" if she did not "want to have [a]

conversation" with them.        Despite these assurances, Swan stayed

and spoke with the deputies.          The deputies initially maintained

possession of Swan's cellphone.        When Swan asked whether she could

have the phone back, Bucknam told her that he would return it soon,

explaining that he was only keeping the phone so that Swan would

not get distracted.      Shortly thereafter, Swan's phone rang and she

reached for it, saying that it was her husband.         Bucknam told Swan

that he was "just gonna to hit the thing" and send the call "to

voicemail."      Swan responded, "All right."

           Over the course of her hour-and-a-half conversation with

deputies, Swan made numerous incriminating statements, including

an   admission    that   she   had   received   approximately   $25,000    in

kickbacks.       Towards the end of the interview, Swan told the

deputies that she needed to call her husband.               The officers

returned her phone, offered to let her step outside to make the

call, and, ultimately — when Swan opted to stay put — left the

room.   After speaking with her husband, Swan told the officers

that they could come back in and resume the conversation.                 She


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retained her phone for the rest of the interview and, when it

ended, thanked the officers.

             A   federal      grand    jury    subsequently      indicted    Swan   on

multiple counts of Hobbs Act extortion, as well as tax fraud and

making false statements to obtain federal worker's compensation.

The district court severed the charges, allowing Swan to receive

two separate jury trials:             one for extortion and a second for the

remaining counts.

             Before trial, Swan moved to suppress the statements that

she had made at the sheriff's office.                   Following an evidentiary

hearing, a magistrate judge recommended denying Swan's motion,

concluding       that   she    had    not     been   subjected    to   a    custodial

interrogation and that her confession was voluntary.                   The district

court agreed and denied the motion to suppress.

             Ultimately, Swan was convicted of three counts of Hobbs

Act extortion, five counts of tax fraud, and two counts of making

false statements to obtain federal worker's compensation.                        This

timely appeal followed.

                                            II.

             When considering the denial of a motion to suppress, "we

review the district court's factual findings for clear error and

its legal conclusions de novo."                   United States v. Almeida, 434

F.3d 25, 27 (1st Cir. 2006).                      Factual findings "are clearly

erroneous only when . . . the reviewing court . . . is left with


                                         - 5 -
the   definite      and   firm    conviction    that   a    mistake   has     been

committed."        United States v. McLaughlin, 957 F.2d 12, 17 (1st

Cir. 1992) (citation omitted).         Additionally, we "may affirm . . .

suppression rulings on any basis apparent in the record."                United

States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014).

                                       A.

            The police are required to provide a Miranda warning

before subjecting a suspect to custodial interrogation.                  United

States v. Davis, 773 F.3d 334, 338 (1st Cir. 2014).               Accordingly,

the need for a Miranda warning "turns on whether a suspect is in

custody."     United States v. Hughes, 640 F.3d 428, 435 (1st Cir.

2011). In this context, "'custody' is a term of art that specifies

circumstances that are thought generally to present a serious

danger of coercion."           Howes v. Fields, 132 S. Ct. 1181, 1189

(2012).      The    relevant     inquiry   is   "whether,   in   light   of   the

objective circumstances of the interrogation, a reasonable person

[would] have felt he or she was not at liberty to terminate the

interrogation and leave."          Id. (citations omitted) (alteration in

original).     We have previously identified a number of factors

relevant to this determination, including "whether the suspect was

questioned in familiar or at least neutral surroundings, the number

of law enforcement officers present at the scene, the degree of

physical restraint placed upon the suspect, and the duration and




                                      - 6 -
character of the interrogation."           United States v. Masse, 816 F.2d

805, 809 (1st Cir. 1987) (citation omitted).

              Here, Swan contends that she was in custody during her

initial encounter with Reardon and Bucknam in the parking lot

because, among other things, the deputies effectively trapped her

in a relatively tight space, insisted on speaking with her at the

sheriff's     office,    and   accompanied    her     on   the   drive    to    that

location.       The    magistrate   judge's    factual     findings,      however,

undermine Swan's argument.           The magistrate determined that the

deputies    merely     suggested    that   Swan   speak     with   them    at    the

sheriff's office.       It similarly found that Swan was not ordered to

ride with Bucknam.        Rather, this too was merely a suggestion to

which Swan agreed.         Swan's voluntary decision to meet at the

stationhouse strongly suggests that she was not "in custody" for

the purposes of Miranda.           See McCown v. Callahan, 726 F.2d 1, 6

(1st   Cir.    1984)    (Breyer,    J.)    (finding    interaction       with    law

enforcement non-custodial because the "defendants had come to the

station voluntarily," "were told that they were not under arrest,"

and "left the station undisturbed").

              In any event, although we doubt that the district court's

factual findings were clearly erroneous, it is unnecessary for us

to decide whether the encounter in the parking lot was custodial.

This is because, in conducting the Miranda analysis, we focus on

the time that the relevant statements were made.                 For example, in


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United    States   v.   McCarty,   475   F.3d     39   (1st   Cir.    2007),    we

considered whether to suppress unwarned statements by a defendant

who had been handcuffed only minutes beforehand.                     Although we

observed that the defendant undoubtedly had been "in custody" while

restrained, we held that the situation became non-custodial by the

time that the questioning began.         Id. at 45-46.        This was because

the officers had taken off the defendant's handcuffs and "explained

. . . that he was not under arrest, that he was free to leave at

any time, and that he did not have to answer any questions."                   Id.

at 46.      Accordingly, there was no need to administer a Miranda

warning.1

             So too here.     Even assuming that the confrontation in

the parking lot was custodial, Swan was not entitled to a Miranda

warning unless she remained in custody at the stationhouse when

she made the statements now at issue.             Based on the totality of

the   circumstances,     we   conclude     that    the    interview      at    the

stationhouse was non-custodial.




      1Other circuits have applied a similar analysis. See United
States v. Gordon, 294 F. App'x 579, 584 (11th Cir. 2008) (per
curiam) (unpublished) (holding that the defendant's telephone
conversation with an agent after his arrest and release was not
subject to Miranda requirements because the defendant "was not in
custody at the time he made the statements at issue"); United
States v. Wallace, 323 F.3d 1109, 1113 (8th Cir. 2003) (explaining
that interrogation was non-custodial despite the fact that law
enforcement "corralled the [defendant] at the onset of the search"
because the "main focus must be on the individual's restraint
during the interview" (emphasis in original)).


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          We begin by emphasizing that, as in McCarty, the deputies

prefaced their questioning by telling Swan that she was "not under

arrest," that she was free to leave "[a]t any point," and that it

was "fine" if she did not "want to have [a] conversation" with

them.   These unambiguous statements would have led a reasonable

person in Swan's position to understand that she was not "in

custody," notwithstanding what had transpired in the parking lot.

See McCarty, 475 F.3d at 45-46; United States v. Infante, 701 F.3d

386, 398 (1st Cir. 2012) (holding that the defendant was not in

custody where the interviewing officer "informed [him] during each

interview that he was not under arrest or in custody and that he

did not have to speak with the officers"); United States v.

Ellison, 632 F.3d 727, 728 (1st Cir. 2010) (Souter, J.) (concluding

that questioning did not constitute custodial interrogation where

an officer informed the suspect that "he was not under arrest

. . . , did not have to answer any questions, and was free to end

the interview at any time").

          Other evidence that the questioning was a custodial

interrogation is also lacking.   Turning to the relevant factors,

we first consider the location of the interview.     Swan met with

the deputies at the sheriff's office behind closed doors. However,

the deputies made it clear to Swan that she was free to leave and

that the door was closed only for the sake of privacy.     Without

more, the mere fact that the questioning took place at the station


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does not render it custodial.      See, e.g., United States v. Quinn,

815 F.2d 153, 160 (1st Cir. 1987) ("Even when questioning occurs

in the stationhouse, a suspect need not be given Miranda warnings

if he went there voluntarily and there was no such restriction on

his freedom as to render him in 'custody.'").

          Next, "[t]he number of officers present . . . was not

overwhelming, lending support to a finding that the questioning

was non-custodial." Infante, 701 F.3d at 397. Reardon and Bucknam

were the only law enforcement officers involved in the interview.

We have previously declined to find that a defendant was in custody

even when confronted by as many as five police officers.                See

Quinn, 815 F.2d at 157; see also Infante, 701 F.3d at 397-98

(holding that presence of two officers, joined briefly by two

others, was not overwhelming).       We also note that the deputies

never drew their weapons at any point during their interactions

with Swan.   See Hughes, 640 F.3d at 436 (finding interrogation

non-custodial   when   officers    "carried    visible     weapons"   which

"remained in their holsters throughout the visit").

          Similarly,    Swan   was    not     handcuffed    or   otherwise

physically restrained at the sheriff's office.             See id. ("[W]e

think it significant that no meaningful physical restraint was

applied to the defendant . . . . For aught that appears, no officer

made physical contact with him." (citations omitted)).           This too

suggests that the interaction was non-custodial.


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              Finally, the duration and character of the interview

reinforce the conclusion that Swan was not in custody.                      Swan spent

approximately ninety minutes at the sheriff's office.                          We have

held   that     encounters    of   similar       length    are     not   necessarily

custodial.      See, e.g., id. at 437 ("The relatively short duration

of the interview, which lasted roughly ninety minutes . . . [is]

also consistent with the finding that the interview was not

custodial.").       Additionally, as the magistrate judge noted, the

conversation was characterized by "a generally even-tone back and

forth."    See, e.g., United States v. Jones, 187 F.3d 210, 218 (1st

Cir. 1999) (holding that interview was non-custodial where the

officer "used a normal tone of voice" during questioning).

              Swan, however, points out that the officers were in

possession of her cellphone throughout much of the interview and

claims that this fact renders the interaction custodial.                        But we

do not find this fact to be determinative.                  Bucknam explained to

Swan that the deputies would return her phone, but were holding it

during    the    interview    because     they    did     not    want    her    to   get

distracted.      It is true that the deputies sent a call from Swan's

husband to voicemail, but they did so only with her permission.

And when Swan later told the deputies that she needed to call her

husband, they not only allowed her to make the call but also left

the room.        In light of the facts considered as a whole, the

officers'       temporary    possession    of     Swan's        cellphone      was   not


                                     - 11 -
sufficient to trigger Miranda.              Nor does the precedent suggest

otherwise.    See United States v. Campbell, 741 F.3d 251, 267 (1st

Cir. 2013) (finding questioning to be non-custodial despite the

fact that "the defendants may have temporarily been unable to use

their cellular phones"); United States v. Salinas, 543 F. App'x

458, 464-65 (5th Cir. 2013) (unpublished) (referring to retention

of suspect's phones as "some evidence that the encounter was

custodial" but ultimately affirming finding that the defendant was

not in custody).

             In   sum,   after   considering    the   relevant   factors,   we

conclude that a reasonable person in Swan's position would have

felt able to terminate the interview and leave the station.

Accordingly, Swan was not subjected to a custodial interrogation,

and it was unnecessary to provide her with Miranda warnings.2

                                       B.

             Swan's      remaining   claim     that   her   confession      was

involuntary lacks merit.         The previously discussed facts establish




     2 Swan suggests, for the first time on appeal, that the
deputies "seized" the bag of money and cellphone within the meaning
of the Fourth Amendment.    She argues that such a seizure could
only be justified as a "search incident to arrest." Accordingly,
she must have been arrested and, thus, in custody for purposes of
Miranda.   This contention is without merit.     Undoubtedly, some
seizures are conducted incident to an arrest. But there are also
a number of other situations in which warrantless seizures are
permissible.   Thus, even if a seizure had taken place (and we
expressly decline to reach this issue), it would not necessarily
follow that Swan was in custody.


                                     - 12 -
that the government's conduct did not overbear Swan's will.       In

short, "[t]he tone of the interview was cordial, its length was

reasonable, and the defendant was not deprived of any essentials,"

all of which indicates "a lack of coercion . . . [and] support[s]

the district court's finding of voluntariness."     Hughes, 640 F.3d

at 438.

          Swan   primarily   argues    that   her   statements   were

involuntary because the deputies promised her leniency in exchange

for her cooperation.   This contention need not detain us long, as

"[i]t is well settled in the First Circuit that an officer does

not impermissibly overbear a defendant's will by promising to bring

the defendant's cooperation to the prosecutor's attention or by

suggesting that cooperation may lead to more favorable treatment."

United States v. Jacques, 744 F.3d 804, 809-10 (1st Cir. 2014).

                               III.

          For the foregoing reasons, we AFFIRM Swan's convictions.




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