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United States v. Wombold

United States District Court, E.D. Tennessee, Knoxville

October 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT WOMBOLD, Defendant.

          MEMORANDUM

          CURTIS L. COLLIER, UNITED STATES DISTRICT JUDGE.

         On February 8, 2017, Defendant Scott Wombold filed a motion to suppress oral statements he allegedly made to law enforcement agents on April 15, 2013. (Docs. 132, 133.) Defendant argued these alleged statements were made in violation of his rights under the Fifth Amendment because he made them in response to interrogation by law enforcement officers while he was in their custody, and they did not first give the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). The Government responded in opposition, arguing Defendant was not in custody at the time of the relevant interview and Miranda warnings were therefore not required. (Docs. 144, 165.) Defendant replied (Doc. 151).

         Magistrate Judge Bruce Guyton held an evidentiary hearing on the motion on March 24, 2017 and issued a report and recommendation (the “R&R”) pursuant to 28 U.S.C. § 636(b)(1)(B) on June 1, 2017 recommending the motion to suppress be denied. (Doc. 180.) The Magistrate Judge agreed with the Government that Defendant was not in custody when he gave his statements and Miranda warnings were therefore not required. (Id.) Defendant objected to the R&R on June 15, 2017. (Doc. 186.) He identifies five specific instances in which the Magistrate Judge did not credit his testimony; objects to the weight the Magistrate Judge gave to three other specific circumstances in determining whether he was in custody; and objects to the Magistrate Judge's analysis of whether he was in custody under all of the circumstances, even if his other specific objections are overruled. The Government responded in opposition on June 28, 2017. (Doc. 195.)

         The Court has reviewed the transcript of the hearing, the exhibits introduced at the hearing, and the briefs of the parties filed before and after the R&R issued. The Court will MODIFY certain factual findings in the R&R (Doc. 180) and ACCEPT and ADOPT the remainder of the R&R.[1] Defendant's motion to suppress (Doc. 132) will be DENIED.

         I. BACKGROUND

         The R&R begins with a detailed summary of the testimony provided by each of the ten witnesses at the suppression hearing. (Doc. 180 [R&R] § II, at 3-30.) Defendant does not object to this portion of the R&R. (Doc. 186 [Def.'s Obj.] at 21 (“The R&R does many things right. It takes great pains to recount the testimony at the hearing accurately and thoroughly.”)) The Court accordingly incorporates Section II of the R&R by reference. The R&R next sets out specific findings of fact relevant to Defendant's motion. (Doc. 180 [R&R] at 30-33.) Defendant largely accepts these findings of fact, objecting only to the Magistrate Judge's failure to credit Defendant's testimony on five specific factual issues. (Doc. 186 [Def.'s Obj.] at 7.) The following recitation of the factual background is therefore derived primarily from the R&R, and it identifies the factual issues as to which Defendant makes specific objections.

         On April 15, 2013, federal agents executed two search warrants in connection with an investigation into possible fraudulent billing practices by employees of Pilot Travel Centers LLC (“Pilot”). Agents executed the first search warrant at the residence of Pilot employee Brian Mosher[2] in Iowa. Mr. Mosher's wife then called Defendant's wife in Knoxville, Tennessee, told her about the search, and asked her to have Defendant-then Pilot's Vice President of National Accounts-return her call. Mrs. Wombold called Defendant at approximately 1:00 p.m. Eastern time. After speaking with his wife, Defendant placed calls to Mrs. Mosher and his supervisor, Pilot's then-President Mark Hazelwood.[3]

         Beginning at 1:48 p.m., fifty-four law enforcement officers from the Federal Bureau of Investigation (the “FBI”) and the Internal Revenue Service Criminal Investigation Division (the “IRS-CID”) entered Pilot headquarters in Knoxville to execute the second search warrant. Approximately twenty of these officers went directly to the third floor. The third-floor layout consisted of executive offices around the outside of the floor, including Defendant's office, with cubicles for direct sales representatives in an open area in the middle.

         The agents who went to the third floor were dressed in suits (Doc. 177 [Fisher Tr.] at 37- 38), over which they wore soft body armor topped by blue wind-breakers bearing the initials of their respective agencies. The agents wore service pistols but did not unholster them.

         The R&R found the following facts regarding the beginning of the search of the third floor:

The first two agents to arrive on the top floor firmly instructed the direct sales representatives to stand, step away from their computers, and raise and interlock their hands over their heads. A white noise machine was in operation and some of the employees in the back could not hear the agents clearly. One employee, who was talking on her telephone, did not hear the agents at first and only ended her call when an agent walked up to her cubicle.
As more agents arrived on the floor, they fanned out in front of the offices and around the cubicles. Some agents were tasked with securing the offices. Agents then sought out Pilot employees whom the agents were previously assigned to attempt to interview. Special FBI Agent Andrew Fisher and Special IRS-CID Agent Robert Masterson located Scott Wombold standing in the hallway outside of his office and near the cubicle area. Agents Fisher and Masterson recognized Wombold from a photograph, approached him, confirmed that he was Scott Wombold, and identified themselves. Agent Fisher told Wombold that they would like to ask him some questions because they thought he had information that would aid their investigation. Wombold agreed to meet with the agents. The agents and Wombold waited briefly in the hallway, while other agents finished securing the offices.

(Doc. 180 [R&R] at 31 (emphasis added).) Defendant makes one factual objection to each of the foregoing paragraphs of findings: he objects to the R&R's rejection of his testimony that the agents yelled at the Pilot employees when they arrived on the third floor, and to its rejection of his testimony that Agent Fisher and Agent Masterson demanded he return to his office to be interviewed. (Doc. 186 [Def.'s Obj.] at 7.) Defendant also objects that the R&R understates the significance for the custody analysis of the agents' forcing Pilot employees to hold their hands in the air for at least fifteen minutes at the beginning of the search. (Id. at 15-18.)

         The R&R found the following facts regarding the beginning of Defendant's interview:

Agents Fisher and Masterson walked with Wombold to his office and sat in two chairs, which were in front of Wombold's desk and near the door. The agents left the door to Wombold's office open six to eight inches. Wombold, who sat behind his desk and across from the agents, had an unobstructed path to the door. After a few minutes of cordial small talk, the agents told Wombold that the interview was voluntary, meaning that he was not required to talk to them. They said that Wombold was not under arrest and was free to leave. Wombold responded that he wanted to cooperate with them and “to do what he could to help.” [Tr. at 269] The agents also told Wombold that they could interview him there in his office, or they could move to another location, such as a restaurant or his home, to talk. Wombold said that he preferred to remain in his office. Agents Fisher and Masterson were dressed in professional clothing, which covered their guns.[4] The agents did not show their guns during the interview.

(Doc. 180 [R&R] at 32 (emphasis and footnote added).) Defendant objects to the R&R's rejection of his contrary testimony, that the agents did not tell him he was free to leave and did not tell him he could decline to speak with them. (Doc. 186 [Def.'s Obj.] at 7.) Defendant also objects to the R&R's alleged erroneous conclusion, detailed elsewhere, that he could not see agents other than the two interviewing him through the opening of his office door during his interview. (Id. at 18-19.)

         The R&R continues its description of the interview as follows:

Wombold's cellular telephone, which was lying on his desk, rang five times during the interview. The agents asked Wombold to refrain from answering his cellphone and noted the identity of the callers with each call. The agents questioned Wombold about customers listed on a white board on his office wall. At one point during the interview, Agent Fisher told Wombold that he did not believe Wombold was being candid with him. Wombold leaned forward and lowered his hands below the desk. Agent Fisher told Wombold to show his hands. Agent Fisher then stood, walked around the desk, and looked under it to make sure that Wombold did not have a weapon. After determining that Wombold did not have a gun, Agent Fisher returned to his chair and continued the interview.
After one and one-half hours of questioning, Agent Fisher offered to move to another location of Wombold's choosing. Wombold declined this offer. Wombold's wife called his cellphone at 3:11 p.m. and again at 3:45 p.m. Wombold asked the agents if he could take this second call from his wife to let her know that he was alright. The agents permitted him to answer this call. The interview lasted about two hours, ending at 4:03 p.m. Wombold did not ask for a lawyer or a break during the entire interview. Agents Fisher and Masterson walked with Wombold to the door of the building, and Wombold left.

(Doc. 180 [R&R] at 32-33 (emphasis added).) Defendant objects to the R&R's rejection of his testimony that he asked for an attorney during the interview. (Doc. 186 [Def.'s Obj.] at 7.) He also objects that the R&R's custody analysis discounts the importance of the agents' control over him as demonstrated by Agent Fisher's reaction when Defendant put his hands under his desk. (Id. at 15-18.)

         II. STANDARD OF REVIEW

         This Court must conduct a de novo review of those portions of the R&R or the specified proposed findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C). But de novo review does not require the district court to rehear witnesses whose testimony has been evaluated by the Magistrate Judge. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). The Magistrate Judge, as the factfinder, had the opportunity to observe and hear the witnesses and assess their demeanor, putting him in the best position to determine credibility. See Moss v. Hofbauer, 286 F.3d 851, 868 (6th Cir. 2002); United States v. Hill, 195 F.3d 258, 264-65 (6th Cir. 1999). The Magistrate Judge's assessment of witnesses' testimony is therefore entitled to deference. United States v. Irorere, 69 Fed.Appx. 231, 236 (6th Cir. 2003).

         In resolving objections, the district court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         III. ANALYSIS

         A suspect who is in custody and subject to interrogation must be given Miranda warnings against self-incrimination. See Miranda, 384 U.S. at 467-68 (1966). In determining whether a person is “in custody” for purposes of Miranda, “a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)) (alteration in original). Thus, it is possible for a person to be detained, such as during an ordinary traffic stop, but not in custody for purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 436-41 (1984).

         To determine whether Defendant's freedom was restrained to the degree associated with a formal arrest such that he was in custody during the interview, this Court considers the following non-exhaustive list of factors: “(1) the location of the interview; (2) the length and manner of the questioning; (3) whether there was any restraint on the individual's freedom of movement; and (4) whether the individual was told that he or she did not need to answer the questions.” United States v. Luck, 852 F.3d 615, 621 (6th Cir. 2017) (quoting United States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010); see also United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009) (listing factors). Other factors may include whether the individual “was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so.” United States v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998). The Court conducts its analysis “from the perspective of a reasonable person ‘innocent of any crime.'” Panak, 552 F.3d 462 at 469 (quoting United States v. Galloway, 316 F.3d 624, 629 (6th Cir. 2003)).

         Defendant makes three categories of objections to the R&R: (1) he objects to five specific facts as to which the Magistrate Judge did not credit his testimony; (2) he objects to the weight the Magistrate Judge gave to three circumstances in considering whether he was in custody; and (3) he objects to the Magistrate Judge's recommendation generally even if his other specific objections are overruled. The Court will consider each of these categories of objections in turn.

         A. Whether the Magistrate Judge Should Have Credited Defendant's Testimony in Five Specific Instances

         Defendant identifies five specific facts as to which he argues the Magistrate Judge erred in not crediting his testimony: that the agents yelled at employees on the third floor; that Agent Fisher and Agent Masterson demanded he return to his office for an interview; that the agents did not tell him he was free to leave and could decline to speak with them[5]; and that he asked for an attorney during the interview.

         1. Whether Agents Yelled at Pilot Employees

         Defendant argues the Magistrate Judge erred in not crediting his testimony that the agents yelled at employees on the third floor at the beginning of the search.

         Defendant testified that on the afternoon of April 15, 2013, he heard noise and rumbling outside his open office door. He hesitated a moment, then got up and saw some of the sales representatives standing up, putting their hands on their heads, “and a little bit of panic . . . ensuing.” (Doc. 177 [Wombold Tr.] at 242-43.) He stepped out of his office and saw what he believed to be several law enforcement officers, wearing blue blazers marked FBI and IRS, “kind of storming the office, so to speak.” (Id. at 243, 245.) As to the officers' conduct, he testified “They were basically coming down the hallway, and they were yelling at people to back away from their desks and put their hands up and interlock their fingers on top of their head.” (Id. at 243.) Defendant testified he stood there in the hall for a few minutes, “[j]ust kind of watching what was going on and trying to figure out what was happening.” (Id. at 245.) He described the scene as “a little bit of a chaotic situation . . . you had people yelling, and you had the girls- some of the girls were crying and upset and visibly shaken, and I just stood there for a couple minutes, and then I had somebody approach me.” (Id. at 244.) Although Defendant was standing in the hallway of the cubicle area, he did not testify that he was yelled at, or ordered to raise his hands, or did raise his hands. (See Doc. 180 [R&R] at 40.)

         Defendant argues the Magistrate Judge's finding that the agents spoke firmly, but did not yell, is erroneously based on one witness's speculation about the reason a certain employee did not hang up her phone until an agent walked up to her desk, as well as on testimony that employees at the back of the room could not hear everything that was happening at first. Defendant is correct that certain people not being able to hear everything that happened does not mean there was never any yelling. However, none of the other witnesses-including one codefendant and two non-party Pilot employees who were in the cubicle area during the search- testified that the agents were yelling or shouting.[6] And one of the agents testified affirmatively that there was no yelling: “I would say it was done in more like a [sic] authoritative voice, but it was not hollering and screaming. It was fatherly.”[7] (Doc. 177 [Bukowski Tr.] at 127.)

         The Court finds Defendant's argument unconvincing. The Magistrate Judge had the opportunity to observe and hear the witnesses and assess their demeanor and thus was in the best position to determine credibility. See Moss, 286 F.3d at 868. Defendant's own testimony, including his use of dramatic characterizations (such as “storming the office, ” “crying and sobbing, ” and “chaotic situation”) combined with strong qualifiers (such as “kind of . . . so to speak” and “a little bit of a . . .”), give the Court additional reason to pause in considering his credibility on this issue. In the end, the Magistrate Judge's assessment of the witnesses' testimony is entitled to deference, Irorere, 69 Fed.Appx. at 236, and Defendant has not presented sufficient evidence to call this assessment into question.

         2. Whether Agents Demanded Defendant Return to his Office

         Defendant argues the Magistrate Judge erred in not crediting his testimony that Agent Fisher and Agent Masterson demanded he return to his office for an interview. He argues he was the only witness to testify specifically as to whether or not such a demand occurred, so the Magistrate Judge had no grounds to reject his testimony about a demand even if the Magistrate Judge generally found the agents more credible than he on points as to which they all testified.

         As the Government points out, the R&R specifically addresses and rejects Defendant's testimony that there was a demand, describing the other ...


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