                    Case: 11-15976         Date Filed: 10/04/2012   Page: 1 of 8

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15976
                                        Non-Argument Calendar
                                      ________________________

                              D.C. Docket No. 1:11-cr-00103-CB-C-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                   versus

VICTOR MANUEL MANTA-CARILLO,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Southern District of Alabama
                                  ________________________

                                           (October 4, 2012)

Before BARKETT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
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       Victor Manuel Manta-Carillo appeals the district court’s denial of his

suppression motion arguing that the government violated his Fifth Amendment right

against self-incrimination when it failed to read him the warnings set out in Miranda

v. Arizona, 384 U.S. 436 (1966). The district court denied his motion to suppress on

the ground that the circumstances surrounding Manta-Carillo’s statements did not rise

to the level of custodial interrogation and, thus, did not implicate Miranda.

Thereafter, Manta-Carillo and the government entered into a stipulation of facts, and

the district court found him guilty in a bench trial on that basis. On appeal,

Manta-Carillo claims that the district court erred in denying his motion to suppress

his statements. After careful review, we affirm.1

       In an appeal from a denial of a motion to suppress, we review the district

court’s factual findings for clear error and its application of the law de novo. United

States v. Luna-Encinas, 603 F.3d 876, 880 (11th Cir. 2010). Where a district court

erroneously denies a motion to suppress, that error is harmless if other evidence of

the defendant’s guilt is so overwhelming that the defendant suffered no prejudice




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          Moreover, because both parties operated under the assumption that Manta-Carillo had
preserved his right to appeal the suppression issue, and because the parties’ claim that we lack
jurisdiction over the suppression issue is not clearly supported by controlling authority, the joint
motion to remand for an evidentiary hearing concerning whether the stipulation of facts as
currently written renders moot any disposition on the suppression issue is DENIED.

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from the admitted evidence. United States v. Rhind, 289 F.3d 690, 694 (11th Cir. 2002).

      The Fifth Amendment of the U.S. Constitution provides individuals with a

right against self-incrimination. U.S. Const. amend. V. In Miranda, the Supreme

Court held that, in its case in chief, the prosecution may not use self-incriminating

statements elicited during a custodial interrogation unless officials warn a suspect of

his rights against self-incrimination beforehand. 384 U.S. at 444. Nevertheless, law

enforcement officers must give the warning only when custodial interrogation begins.

Luna-Encinas, 603 F.3d at 880. Miranda does not bar admission of any statement

given freely and voluntarily. Miranda, 384 U.S. at 478; see also Cannady v. Dugger,

931 F.2d 752, 754 (11th Cir. 1991) (holding that voluntary and spontaneous

comments by a defendant, even after Miranda rights are asserted, are admissible if not

made in response to government questioning). Moreover, the Self-Incrimination

Clause in the Fifth Amendment does not bar the admission of physical evidence that

is the fruit of an unwarned but voluntary statement. United States v. Jackson, 506

F.3d 1358, 1360-61 (11th Cir. 2007) (citing United States v. Patane, 542 U.S. 630,

636 (2004) (plurality opinion); and Patane, 542 U.S. at 645 (Kennedy, J., concurring

in the judgment)).

      We consider whether an interrogation is custodial in the light of the strong

government interest in controlling its borders. United States v. Moya, 74 F.3d 1117,

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1119 (11th Cir. 1996). To determine whether an individual is in custody, courts look

at whether the restrictions on the suspect’s freedom of movement rise to the degree

associated with formal arrest. Id. (quoting Minnesota v. Murphy, 465 U.S. 420, 430

(1984)). Even if a defendant feels constrained not to leave the scene of an encounter

with law enforcement, that, by itself, does not necessarily rise to the level of being in

custody for Fifth Amendment purposes. Luna-Encinas, 603 F.3d at 881; United

States v. Muegge, 225 F.3d 1267, 1270-71 (11th Cir. 2000).

      In Moya, an Immigration and Naturalization Service inspector ran a computer

check on the defendant’s resident alien card when the defendant arrived in the

country. Id. at 1118. The computer check suggested that the defendant may have

been deported previously. Id. at 1118 n.1. Officials referred the defendant to a

secondary area at customs, and an inspector eventually led the defendant to an office

to interview the defendant. Id. at 1118. In the interview, the defendant denied ever

having been deported, but a computer search later confirmed that he had been

deported. Id. In holding that the defendant was not in custody, we emphasized

several factors: (1) officials did not physically move or restrain him on the way to the

scene of the interview; (2) officials did not use handcuffs or draw their weapons; (3)

the defendant was not booked, told of formal accusations, or told that he was under

arrest; and (4) the defendant did not ask to leave, and the inspector never told him that

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he could not leave. Id. at 1119. We also stated that the defendant made no

admissions that would have led a reasonable person to conclude that he would be

arrested immediately. Id. In reaching its conclusion, we held that questioning at the

border must rise to “a distinctly accusatory level” before a reasonable person would

feel the restraints on his freedom of movement to the degree associated with formal

arrest. Id. at 1120. We also explained that events signaling “custody” away from the

border may not establish “custody” in the context of entry into the country. Id.

      In this case, the record shows that Manta-Carillo was the captain of the Pera,

a commercial ship that arrived in Mobile, Alabama from Port au Prince, Haiti. When

the Pera arrived in Mobile, officials boarded the vessel to conduct an inspection of

the ship. A customs and border patrol officer found a DVD with a cover depicting

“bestiality” in Manta-Carillo’s quarters. When an agent informed Manta-Carillo that

this DVD may be a problem, Manta-Carillo stated that he possessed child

pornography on his laptop computer and on an external hard drive. Agents then

questioned Manta-Carillo and obtained a written confession. Agents also seized his

laptop computer and external hard drive and later searched both pursuant to a search

warrant, and they found approximately 160 images of child pornography. At no point

did the agents read Miranda warnings to Manta-Carillo.




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      On this record, Manta-Carillo has not shown that he was in custody at any

point, and, therefore, has not shown that he was entitled to Miranda warnings. For

starters, Manta-Carillo was not physically restrained.        Agents did not arrest

Manta-Carillo following the interview and, in fact, allowed him to leave the country

with the Pera. Formal accusations were not brought during the course of the

interview, and agents never told Manta-Carillo that he could not leave or terminate

the interview. We recognize that Manta-Carillo was unable to leave the Pera and the

Pera was unable to leave the port during the inspections; however, these restrictions

on his movements were the result of a routine border inspection. Senior Special

Agent Christopher Anderson testified that the interview lasted approximately an hour

and a half, and that the inspection of the entire ship took just over two hours. During

that time, Anderson had a Spanish-speaking agent confirm that Manta-Carillo had

admitted to possessing child pornography, and he had a second Spanish-speaking

agent aid in translating a written confession to Manta-Carillo. Although the interview

was moved from the cabin across the hall from Manta-Carillo’s quarters to his

quarters, none of the evidence in the record suggests that agents ever physically

forced Manta-Carillo to move. Further, while Manta-Carillo made an admission that

likely would have led a reasonable person to believe that he would be arrested

immediately, none of the other factors outlined in Moya support a finding that

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Manta-Carillo was in custody for Fifth Amendment purposes. Thus, under these

circumstances, Manta-Carillo was not in custody. Moya, 74 F.3d at 1119-20.

      Manta-Carillo also asserts that he only blurted out that he had child

pornography after agents confronted him with possession of other contraband. Even

if true, Manta-Carillo has not shown how this indicates that his initial admission

implicated Miranda.      Per Special Agent Anderson’s testimony, Manta-Carillo

confessed to having child pornography after Anderson told him that a DVD

containing bestiality found in his quarters “may be a problem.” From the record, it

appears that Manta-Carillo’s statement was not in response to any question that

Anderson posed and, therefore, Miranda would be inapplicable, even assuming

Manta-Carillo was in custody for Fifth Amendment purposes at that point. Cannady,

931 F.2d at 754.

      In a single sentence at the end of his initial brief, Manta-Carillo also asserts that

“his statements and fruits of his statement[s] must be suppressed.” He does not

elaborate upon what the fruits of his statements are, but the record suggests that he

is referring to the search and seizure of his laptop and external hard drive. This

passing mention is likely insufficient to raise an argument that the fruits of his

statements must be suppressed. United States v. Jernigan, 341 F.3d 1273, 1283 n.8

(11th Cir. 2003) (holding that if an appellant makes only a passing reference to an

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issue in an initial brief, he has abandoned it). Even if he had sufficiently raised such

an argument, though, it would be unpersuasive because the Self-Incrimination Clause

does not require exclusion of the physical fruits of a voluntary statement. Jackson,

506 F.3d at 1360-61.

      Finally, even assuming the district court did err in denying Manta-Carillo’s

motion to suppress his statements for Miranda violations, any such error was

harmless. As the record shows, the images recovered from Manta-Carillo’s laptop

and external hard drive -- admissibility of which is not implicated by any purported

Miranda violations -- provided overwhelming evidence that Manta-Carillo was guilty.

Rhind, 289 F.3d at 694. Accordingly, we affirm.

      AFFIRMED.




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