                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-1999

USA v. Leese
Precedential or Non-Precedential:

Docket 98-7513




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Recommended Citation
"USA v. Leese" (1999). 1999 Decisions. Paper 134.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/134


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Filed May 18, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7513

UNITED STATES OF AMERICA,

       Appellant,

v.

VICKI S. LEESE,

       Appellee

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Crim. No. 98-cr-161-1)
(District Judge: Honorable Sylvia H. Rambo, Chief Judge)

ARGUED: February 9, 1999

BEFORE: BECKER, Chief Judge, McKEE, Circuit Judge,
and LEE, District Judge.*

(Filed May 18, 1999)

       David M. Barasch
       United States Attorney
       Theodore B. Smith, III (ARGUED)
       Assistant United States Attorney
       228 Walnut Street
       Harrisburg, PA 17108
       Attorneys for Appellant
_________________________________________________________________

*Honorable Donald J. Lee, United States District Court Judge for the
Western District of Pennsylvania, sitting by designation.
       James V. Wade, Esquire
       Federal Public Defender
       Lori J. Ulrich, Esquire (ARGUED)
       Assistant Federal Public Defender
       Middle District of Pennsylvania
       100 Chestnut Street, Suite 306
       Harrisburg, PA 17101
       Attorneys for Appellee

OPINION OF THE COURT

LEE, District Judge.

The United States appeals from an order of September
10, 1998, suppressing a confession of appellee Vicki S.
Leese ("Leese") to two postal inspectors from introduction
into evidence by the prosecution in her forthcoming trial for
misappropriation of postal funds in violation of 18 U.S.C.
S 1711. As the historic facts of the case are not in question,
we exercise plenary review with respect to the district
court's determination as to whether the police conduct
found to have occurred constitutes custodial interrogation
under all the circumstances of the case. United States v.
Benton, 996 F.2d 642, 644 (3d Cir.), cert. denied, 510 U.S.
1016, 114 S. Ct. 613, 126 L.Ed.2d 577 (1993).1 We find
that the postal inspectors did not conduct a custodial
interrogation or its functional equivalent. Thus, the order of
September 10, 1998, will be reversed.

I. Factual Background

The facts of the case, developed at the evidentiary hearing
on Leese's motion to suppress, are largely undisputed. On
February 17, 1998, Nick Alicea, a United States Postal
Inspector, received a report indicating a discrepancy
between the issuance of certain money orders and the
remittance of the corresponding funds at the Manchester,
Pennsylvania Post Office. The next day, February 18, 1998,
Inspector Alicea went to the Manchester Post Office and
investigated the discrepancies.
_________________________________________________________________

1. We have jurisdiction under 18 U.S.C. S 3731 and 28 U.S.C. S 1291.

                               2
After reviewing certain financial records of the post office,
Postal Inspector Alicea determined that between October
28, 1997 and December 10, 1997, fourteen money order
discrepancies existed, all of which were apparently
attributable to Leese. Inspector Alicea then decided to
interview Leese, who was on duty that day. Before notifying
Leese of the desired interview, however, Inspector Alicea
contacted another Postal Inspector, Jeffrey Fry, and
requested that he come to the Post Office to assist in the
interview of Leese. When Inspector Fry arrived, Inspector
Alicea requested that the Postmaster, Dennis Hollinger
("Postmaster"), inform Leese that Inspectors Alicea and Fry
("Inspectors") wanted to speak with her in the Postmaster's
private office.

The Postmaster accompanied Leese to his office, then
departed, closing the door as he exited. The Inspectors
introduced themselves and told Leese they needed to ask
her some questions. Both Inspectors wore plain clothes and
Inspector Alicea wore a visible firearm.2 Inspector Alicea
explained that Leese was not under arrest, that at the
conclusion of the interview the Inspectors would be
returning to Harrisburg, and that Leese would not be going
with them. However, Inspector Alicea did not explicitly state
that she was free to leave or stop answering questions at
any time.

Inspector Alicea proceeded to question Leese, while
Inspector Fry took notes. Initially, the questions related to
routine Post Office procedures; thereafter, Inspector Alicea
began asking specific questions regarding the discovered
discrepancies in Leese's accounts. Leese denied having any
knowledge of discrepancies.

Inspector Alicea then inquired of Leese as to whether she
had any problems, i.e. financial, drug habit, that had
caused her to "borrow" the money. At this point, Leese
requested the questioning be stopped until she had an
_________________________________________________________________

2. During the evidentiary hearing, there was conflicting testimony as to
whether Inspector Alicea's firearm was visible. Leese testified that
Inspector Alicea took off his jacket and she saw his holstered firearm.
Both inspectors testified that Alicea's firearm was never visible. The
District Court found that Inspector Alicea was wearing a visible firearm.

                               3
opportunity to speak with her union shop steward, Henry
Dennis. The interview was temporarily halted until Mr.
Dennis arrived, approximately an hour after the interview
had been recessed.3 While awaiting Mr. Dennis' arrival,
Leese accompanied Inspector Alicea on an audit of her
accounts.

Before the interview resumed, Leese met privately with
Mr. Dennis.4 Inspector Alicea informed Leese that he was a
friend of the prosecutor and that he would inform the
prosecutor if Leese cooperated. Shortly thereafter, Leese
requested to speak privately with Mr. Dennis again, at
which time the Inspectors left the two alone in the
Postmaster's office. After five to seven minutes, the
Inspectors knocked on the office door, and Mr. Dennis
requested that he and Leese be given additional time alone.
The Inspectors responded by leaving the two alone for an
additional three to five minutes.

When the inspectors returned to the office, Leese
confessed that she had taken between $500 and $1,000.5

After hearing the testimony establishing these facts, the
district court granted Leese's motion to suppress her
confession finding: (i) Leese was summoned to the interview
by her supervisor while she was on duty; (ii) the interview
_________________________________________________________________

3. Both Leese and Fry testified during the evidentiary hearing that
Inspector Alicea attempted to continue questioning Leese after she
requested a union representative, but that Inspector Fry stopped him
from asking any further questions. Both also testified that once Leese
asked for the union shop steward's presence, she did not answer any
further questions until the interview resumed with the union shop
steward present. App. at 72, 84.

4. Although it is undisputed that Leese and Mr. Dennis met privately,
the record is unclear as to the location of the private discussion. The
District Court, based on the evidentiary testimony of Alicia, App. at 37,
and Leese, App. at 85, found that "[d]efendant conferred briefly with Mr.
Dennis before they both went to into (sic) the Postmaster's office with
the
Inspectors." Mem. at 3. However, in its brief, appellant states that after
Dennis arrived at the post office, "he entered the postmaster's office and
spent approximately five to ten minutes alone wih defendant."
Appellant's Br. at 8.

5. The audit of Leese's accounts indicated a shortage of $1,995.66.

                               4
took place in the Postmaster's small, private office; (iii) prior
to the interview, Leese was told that she was not under
arrest; however, the Inspectors did not explicitly state that
she was free to leave or free to refuse to answer their
questions; (iv) during the interview, the Inspectors,
particularly Inspector Alicea, who was wearing a visible
firearm, employed an aggressive and intimidating tone and
demeanor; (v) the Inspectors repeatedly accused Leese of
taking the money; and (vi) lastly, Inspector Alicea told
Leese, several times, that he was friends with the
prosecutor and that if Leese cooperated he would let the
prosecutor know.

II. Discussion

The denial of the suppression motion does not warrant
elaborate consideration. Since Leese was not given Miranda
warnings prior to the interview in question, the statements
made by Leese are inadmissible as evidence if they were the
product of "custodial interrogation."6

Under controlling law, Miranda warnings are required
only when a person has been deprived of his or her freedom
in some significant way. See Beckwith v. United States, 425
U.S. 341, 96 S. Ct. 1612, 48 L.Ed.2d 1 (1976); Steigler v.
Anderson, 496 F.2d 793, 798 (3d Cir.), cert. denied, 419
U.S. 1002, 95 S. Ct. 320, 42 L.Ed.2d 277 (1974). As this
Court has noted, "custodial interrogation" is not susceptible
of an exact definition; thus, the determination of whether
statements are the product of such "custodial interrogation"
must be made on a case-by-case basis. Steigler, 496 F.2d
at 798; United States v. Clark, 425 F. 2d 827 (3d Cir.), cert.
denied, 400 U.S. 820, 91 S. Ct. 38, 27 L.Ed.2d 48 (1970).

In determining whether an individual is in custody, the
ultimate inquiry is: "whether 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,
_________________________________________________________________

6. Because the parties agree that the inspectors' interview of Leese
constituted an "interrogation" for Miranda purposes, our analysis is
confined to the issue of whether Leese was in custody when the
incriminating statements were made.

                               5
1125, 103 S. Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983)
(quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct.
711, 714, 50 L.Ed.2d 714 (1977) (per curiam)); Steigler, 496
F.2d at 798 (the objective test is whether the government
has in some meaningful way imposed restraint on a
person's freedom of action). Where, as here, the individual
has not been openly arrested when the statements are
made, "something must be said or done by the authorities,
either in their manner of approach or in the tone or extent
of their questioning, which indicates they would not have
heeded a request to depart or to allow the suspect to do
so." Steigler, 496 F.2d at 799 (quoting United States v. Hall,
421 F.2d 540, 545 (2d Cir. 1969), cert. denied , 397 U.S.
990, 90 S. Ct. 1123, 25 L.Ed.2d 398 (1970)); accord
Mathiason, 429 U.S. at 492. It is also established beyond
doubt that a custodial interrogation may occur outside the
police station. Orozco v. Texas, 394 U.S. 324, 89 S. Ct.
1095, 22 L.Ed.2d 311 (1969).

In making our determination, we are mindful of the
Supreme Court's caution that "custody" must not be read
too broadly: "[P]olice officers are not required to administer
Miranda warnings to everyone whom they question. Nor is
the requirement of warnings to be imposed simply because
. . . the questioned person is one whom the police suspect."
Mathiason, 429 U.S. at 495, 97 S. Ct. at 714; accord
Steigler, 496 F.2d at 799. However, "[t]he more cause for
believing the suspect committed the crime, the greater the
tendency to bear down in interrogation and to create the
kind of atmosphere of significant restraint that triggers
Miranda . . . But this is simply one circumstance, to be
weighed with all the others." Steigler, 496 F.2d at 799-800
(quoting Hall, 421 F.2d at 545).

Applying these principles to the facts of this case, it is
clear that Leese was not in custody at the time she gave her
statement in the Postmaster's office. Not only was Leese
told that she was not under arrest before the questioning
began, but she was specifically informed that when the
questioning was concluded the inspectors would be
returning to Harrisburg and she would not be going with
them.

                               6
Moreover, each time either Leese or her union shop
steward made a request of the inspectors, the request was
honored. First, Leese requested the questioning be stopped
until she had an opportunity to speak with her union shop
steward. The inspectors honored her request, stopping the
interview until the union shop steward arrived at the post
office. The interview did not resume until after Leese had
been given an opportunity to consult privately with the
union shop steward.

When Leese requested the questioning be stopped a
second time, in order for her to consult privately with the
union shop steward, her request was again honored by the
inspectors. After five to ten minutes, the inspectors
knocked on the door, and when the shop steward requested
that he and Leese be given additional time alone, the
inspectors complied, leaving them alone for an additional
three to five minutes.

The record presented to us is one of postal inspectors
conscientiously interviewing a woman, who was under
considerable suspicion. A significant portion of the
questioning was in the typical police interrogation mode,
confirming Leese's knowledge of Post Office procedures,
confronting her with the found discrepancies in her
accounts, asking her point blank as to whether she
committed the crime, challenging her answers, and
attempting to discover the details of the crime. There is
nothing in the record to suggest that the inspectors would
not have departed on request or allowed Leese to do so.
Once this point is passed, little remains.

It should be noted that the record does not show that
Leese's will was overcome by coercive tactics of the postal
inspectors. For instance, Leese admitted only to"borrowing"
$500 to $1,000, when in fact the audit of her accounts
disclosed a shortage of $1,995.66. Appellant's Br. at 8.
Furthermore, although the inspectors requested Leese to
provide a written statement, she refused. Cf. Mincey v.
Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L.Ed.2d 290
(1978) (police repeatedly questioned defendant while in
intensive care unit of hospital, encumbered with tubes,
needles and breathing apparatus); Davis v. North Carolina,
384 U.S. 737, 86 S. Ct. 1761, 16 L.Ed.2d 895 (1966)

                                7
(defendant's will was overborne by police authorities who
repeatedly interrogated defendant over a period of 16 days);
and Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L.Ed.2d
948 (1961) (police deprived defendant of food and sleep.)

Based on our review of the record and being bound by
United States Supreme Court precedent, particularly
Mathiason, 429 U.S. at 493-94, 97 S. Ct. 713-14, and INS
v. Delgado, 466 U.S. 210, 218-20, 104 S. Ct. 1758, 1763-
65 (1984), it is our conclusion that, although this is a close
case, the manner in which the Inspectors conducted their
interview did not rise to a situation where Leese was either
in custody or being significantly deprived of her liberty.
Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L.Ed.2d 714
(1977) (defendant found not to be "in custody"
notwithstanding fact that police officer falsely stated that
defendant's fingerprints were found at the scene of the
crime); Beckwith, 425 U.S. 341, 96 S. Ct. 1612, 48 L.Ed.2d
1 (1976) ("in custody" requirement not satisfied merely
because defendant was the focus of the investigation when
interviewed). But see Orozco, 394 U.S. 324, 89 S. Ct. 1095,
22 L.Ed.2d 311 (defendant found to be "in custody" when
questioned in his bedroom at 4:00 a.m. by four police
officers).

III. Conclusion

For the above reasons, we will reverse the September 10,
1998 order of the district court suppressing the confession
of Vicki S. Leese.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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