United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2766
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Derek Joseph Carlson, *
also known as Cup, *
also known as Buttercup, *
*
Appellant. *
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Submitted: May 14, 2010
Filed: July 27, 2010
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Before BYE, MELLOY, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Derek Carlson appeals the district court’s1 denial of his motion to suppress his
pre-Miranda2 statements, denial of his motion for a new trial, denial of his trial
counsel’s motion to withdraw, and admission of his prior drug conviction at trial. For
the reasons set forth below, we affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
2
Miranda v. Arizona, 384 U.S. 436 (1966).
I.
On January 22, 2007, law enforcement officials searched the home of Eric
Rekonen pursuant to a drug conspiracy investigation. During the search, officials
recovered Carlson’s name and address in addition to over $80,000, methamphetamine,
various drug paraphernalia, and a shaving cream can with a false bottom.
St. Louis County Sheriff’s Deputy Elizabeth Flanagan and two Drug
Enforcement Agency (DEA) agents attempted to contact Carlson. The DEA agents
left a message with Carlson’s roommate stating that they wanted to speak with
Carlson and to serve him with a subpoena, and that they would serve the subpoena at
his place of employment if he did not contact them. Carlson then arranged to meet
with the DEA agents and Deputy Flanagan over his lunch break. The three law
enforcement officers arrived at the restaurant before Carlson and deliberately arranged
themselves so that Carlson would sit on the outside of their booth. When Carlson
arrived, he requested permission to record the meeting, per the recommendation of his
attorney. The officers stated that the meeting would end immediately if Carlson
insisted on recording it and informed him that he was: not under arrest, free to leave
at any time, and free to have an attorney present. Carlson agreed to continue the
meeting without recording it and admitted, during questioning, that he was acquainted
with a number of the co-conspirators; that he had purchased drugs from them in the
past; and that Rekonen had asked him to collect drug debts, but he had declined to do
so. Carlson eventually requested an attorney, and the officers ended the conversation
immediately upon his request. The officers then served the subpoena and parted ways
with Carlson.
Two months later, Carlson was arrested pursuant to a one-count indictment
charging him with conspiring to distribute and possessing with intent to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), and 846. Carlson filed a motion to suppress the statements he had
made during the restaurant meeting. Following an evidentiary hearing, the magistrate
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judge3 issued a report and recommendation (“R & R”), recommending the denial of
Carlson’s motion to suppress because Carlson had not been in custody and his
statements were voluntary. The district court adopted the R & R and denied the
motion to suppress.
Prior to trial, the government moved under Federal Rule of Evidence 404(b) to
admit Carlson’s 2001 Minnesota state conviction for possessing methamphetamine.
Notably, Carlson had been arrested in possession of a false-bottomed Tinactin spray
can containing over six grams of methamphetamine. The district court did not address
the motion until Carlson’s jury trial. Outside the hearing of the jury, the court stated
that Carlson’s prior conviction was admissible: as evidence of a lack of mistake,
probative as to his intent, and involved a similar modus operandi because Carlson had
admitted to possessing a false-bottom can in his prior conviction and a false-bottom
shaving cream can had been seized in the present case. The court did not make an
explicit ruling on the admissibility of the underlying facts of the prior conviction.
The government called Duluth Police Department Officer Jeff Kazul to testify
as to Carlson’s 2001 state drug conviction. Before Officer Kazul testified, the court
gave the jury a limiting instruction, stating “[C]onsider [Kazul’s testimony] on the
matters of intent, knowledge, absence of mistake, or accident. . . . You may not
convict a person simply because you believe that he may have committed a similar act
on a prior occasion.” (Trial Tr. vol. 2, 243-44, Feb. 6, 2008.) Officer Kazul testified
that he had been one of the arresting officers in Carlson’s 2001 arrest, that Carlson had
admitted that the false-bottomed Tinactin spray can was his, and that over six grams
of methamphetamine were found in the false bottom. The court allowed Carlson to
make a record of his objection to Officer Kazul’s testimony. Carlson argued that it
was improper to allow the jury to hear the underlying facts of his prior state
3
The Honorable Raymond L. Erickson, United States Magistrate Judge for the
District of Minnesota.
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conviction. The court gave a second limiting instruction during the final jury
instructions.
The government also introduced recorded phone conversations between
Rekonen and Carlson, during which they discussed individuals who owed Rekonen
money and from whom Carlson needed to collect. Other witnesses at Carlson’s trial
included two of Carlson’s co-conspirators, Clayton Celley and Travis Hanson, who
testified that Carlson was part of Rekonen’s drug conspiracy. Testimony also revealed
that Celley had given Rekonen the false-bottomed shaving cream can that officials had
seized in the search of Rekonen’s home.
After the jury returned a guilty verdict but before Carlson was sentenced,
Carlson’s trial counsel moved for a new trial based on newly discovered evidence.
At a July 8, 2009 hearing, Carlson argued that a new trial was warranted because
Celley and Hanson had schemed to lie in another case in order to receive sentence
reductions in the present case. Counsel confirmed, however, that no witness would
testify as to a plot to manufacture testimony at Carlson’s trial. Carlson’s trial counsel
also requested permission to withdraw due to a conflict of interest, because a former
client, who was a witness in support of Carlson’s motion for a new trial, had
withdrawn his waiver of privilege. The district court found that the witness’s
testimony would not be relevant, and denied both motions. The court later sentenced
Carlson to 130 months in prison.
II.
First, Carlson claims that the district court erred in refusing to suppress his
statements from the restaurant meeting. Although he acknowledges that he was not
actually in custody at the meeting, he argues that his statements to the officers were
involuntary because he feared that he would be served the subpoena at work, the
subpoena meant that he would have to testify against his violent co-conspirators, and
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the DEA agents used strong-arm tactics in a “custody like situation.” (Appellant’s Br.
18.)
We review the findings of fact supporting a district court’s denial of a motion
to suppress for clear error, and review legal conclusions based on those facts de novo.
See United States v. Ingram, 594 F.3d 972, 976 (8th Cir. 2010), pet. for cert. filed
(U.S. June 15, 2010) (No. 09-11569). In United States v. Griffin, 922 F.2d 1343 (8th
Cir. 1990), we identified six factors to consider in determining whether an individual
is in custody for purposes of Miranda:
(1) whether the suspect was informed at the time of questioning that the
questioning was voluntary, that the suspect was free to leave or request
the officers to do so, or that the suspect was not considered under arrest;
(2) whether the suspect possessed unrestrained freedom of movement
during questioning; (3) whether the suspect initiated contact with
authorities or voluntarily acquiesced to official requests to respond to
questions; (4) whether strong arm tactics or deceptive stratagems were
employed during questioning; (5) whether the atmosphere of the
questioning was police-dominated; or, (6) whether the suspect was
placed under arrest at the termination of the questioning.
Id. at 1349. However, these factors are not “exclusive,” and “[t]he ultimate inquiry
must always be whether the defendant was restrained as though he were under formal
arrest.” United States v. Czichray, 378 F.3d 822, 827-28 (8th Cir. 2004).
Here, Carlson was informed at the beginning of the meeting that he was not
under arrest and that he was free to leave at any time. See United States v. New, 491
F.3d 369, 373-74 (8th Cir. 2007) (“The most obvious and effective means of
demonstrating that a suspect has not been taken into custody is for police to inform
the suspect that an arrest is not being made and that the suspect may terminate the
interview at will.” (quotation and alterations omitted)); United States v. Ollie, 442
F.3d 1135, 1138 (8th Cir. 2006) (“[A]n explicit assertion that the person may end the
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encounter . . . generally removes any custodial trappings from the questioning.”). In
addition, Carlson was not restrained in a fashion similar to formal arrest because he
sat on the outside of a booth in a public restaurant. See United States v. Martin, 369
F.3d 1046, 1057 (8th Cir. 2004) (finding that interview was not custodial when it took
place at public restaurant, and defendant’s freedom was unrestrained beyond ordinary
confines of being seated at table in public cafeteria). Furthermore, the officers did not
arrest Carlson at the end of the meeting. See Griffin, 922 F.2d at 1349.
Contrary to Carlson’s arguments, “the coercive aspects of a police interview are
largely irrelevant to the custody determination except where a reasonable person
would perceive the coercion as restricting his or her freedom to depart.” United States
v. Lebrun, 363 F.3d 715, 721 (8th Cir. 2004) (en banc) (citing Oregon v. Mathiason,
429 U.S. 492, 495 (1977)). Carlson’s reluctance to be served with a subpoena was not
so coercive as to render the interview custodial, and, as such, the meeting with the law
enforcement officials was non-custodial and voluntary. Cf. Martin, 369 F.3d at 1057
(at interview, agents’ discussion of FBI surveillance techniques and implication that
FBI possessed information on defendant was not type of coercion that rendered
interview custodial). We therefore find no basis for reversing the district court’s
denial of Carlson’s motion to suppress.
III.
Carlson next argues that the district court erred in denying his post-trial motion
for a new trial. We review for an abuse of discretion a district court’s denial of a
motion for a new trial. United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009),
cert. denied, 130 S. Ct. 1106 (2010).
To receive a new trial based on newly discovered evidence, a defendant
must show (1) that the evidence was not discovered until after the trial;
(2) that due diligence would not have revealed the evidence; (3) that the
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evidence is not merely cumulative or impeaching; (4) that the evidence
is material; and (5) that the evidence is such as to be likely to lead to
acquittal.
United States v. Coplen, 565 F.3d 1094, 1096 (8th Cir.), cert. denied, 130 S. Ct. 565
(2009) (quotation omitted). This is a “rigorous” standard, “because these motions are
disfavored.” United States v. Baker, 479 F.3d 574, 577 (8th Cir. 2007) (quotation
omitted). We review Carlson’s argument of newly discovered evidence in light of
these requirements.
Carlson submitted sealed exhibits, including a letter containing secondhand
hearsay, stating that Celley had lied while testifying in another case. Carlson argues
that (1) Celley’s testimony was tainted, (2) Carlson should have been allowed an
evidentiary hearing on the evidence, and (3) a new trial was warranted. Carlson relies
heavily on Mesarosh v. United States, 352 U.S. 1 (1956), where a witness had
potentially committed perjury as to a collateral matter. The court stated, “[t]he dignity
of the United States Government will not permit the conviction of any person on
tainted testimony,” id. at 9, and held that the testimony in Mesarosh was so tainted
that it provided sufficient grounds to grant a new trial, see id. at 10.
We find Carlson’s reliance on Mesarosh misplaced. There, the government
itself brought a motion to remand the case, because its witness—an informant paid to
infiltrate the Communist party—had been “wholly discredited.” Id. at 9. The Court
specifically noted that “[s]uch an allegation by the defense ordinarily will not support
a motion for a new trial, because new evidence which is merely cumulative or
impeaching is not, according to the often-repeated statement of the courts, an adequate
basis for the grant of a new trial.” Id. (quotation omitted).
Here, the only evidence in support of Carlson’s motion for a new trial was
impeachment evidence on a collateral matter, which is insufficient to warrant a new
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trial. See Coplen, 565 F.3d at 1096 (“[A] new trial is not warranted when, as here, the
additional evidence would be merely impeaching.”). As a result, we find no
exceptional circumstances warranting an evidentiary hearing. See Baker, 479 F.3d at
579 (absent exceptional circumstances, motion for new trial based on newly
discovered evidence may be decided on affidavits without hearing). Accordingly, we
find no abuse of discretion in the district court’s denial of Carlson’s motion for a new
trial.
IV.
Carlson next argues that the district court’s refusal to allow his trial counsel to
withdraw violated his right to effective assistance of counsel. “We review for abuse
of discretion a district court’s decision to allow counsel to withdraw.” Allen v. United
States, 590 F.3d 541, 544 (8th Cir. 2009).
At the post-trial hearing, counsel stated that the conflict of interest limited his
ability to offer evidence on the new-trial motion. Carlson argues that the court’s
refusal to hear witness testimony on the new-trial motion was a deliberate decision to
avoid counsel’s conflict, and Carlson emphasizes that counsel had consulted with
the Minnesota Lawyers Board of Professional Responsibility as well as the Federal
Public Defender, and was advised by all that counsel had a conflict. However,
counsel confirmed at the hearing that none of the available witnesses would have
testified as to a plot regarding manufactured testimony at Carlson’s trial. The court
conducted a hearing and determined that the perceived conflict had no bearing on
Carlson’s case. Because the proposed testimony was not relevant to Carlson’s case,
we find no abuse of discretion in the district court’s refusal to allow Carlson’s trial
counsel to withdraw. See Fleming v. Harris, 39 F.3d 905, 908 (8th Cir. 1994) (“The
decision to allow counsel to withdraw is left to the discretion of the district court.”).
To the extent that Carlson is raising ineffective assistance of counsel, such a
claim should be pursued in a 28 U.S.C. § 2255 proceeding. See United States v.
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McAdory, 501 F.3d 868, 872 (8th Cir. 2007) (“We ordinarily defer ineffective
assistance of counsel claims to 28 U.S.C. § 2255 proceedings.”); see also Caban v.
United States, 281 F.3d 778, 779, 781 (8th Cir. 2002) (in section 2255 proceeding,
where defendant asserts ineffective assistance of counsel because of conflict of
interest involving his attorney, trial court has duty to conduct searching inquiry into
possibility of constitutional violation arising from that conflict; failure to undertake
this inquiry mandates automatic reversal of any conviction upon showing of possible
prejudice).
V.
Last, Carlson claims that the district court improperly admitted evidence of his
2001 state drug conviction, as well as the underlying facts of his 2001 state drug
conviction. Rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Fed. R. Evid. 404(b). Prior bad act evidence may be admissible for
another purpose, but its admission is subject to a four-factor admissibility test:
The evidence must: (1) be relevant to a material issue raised at trial,
(2) be similar in kind and close in time to the crime charged, (3) be
supported by sufficient evidence to support a finding by a jury that the
defendant committed the other act, and (4) not have a prejudicial value
that substantially outweighs its probative value.
United States v. Turner, 583 F.3d 1062, 1065-66 (8th Cir. 2009) (quotation omitted),
cert. denied, 130 S. Ct. 1928 (2010). We generally review a district court’s Rule
404(b) ruling for an abuse of discretion. See id. at 1065. Subject to the district court’s
broad discretion to admit evidence of other crimes, we will reverse a district court’s
decision to admit evidence under Rule 404(b) “only when such evidence clearly had
no bearing on the case and was introduced solely to prove the defendant’s propensity
to commit criminal acts.” United States v. Littlewind, 595 F.3d 876, 881 (8th Cir.
2010). However, in the absence of an objection at trial, we review for plain error the
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admission of evidence under Rule 404(b). See United States v. Washington, 596 F.3d
926, 945 (8th Cir. 2010).
The government argues that Carlson forfeited his objection to evidence of his
prior conviction because he did not object to the admission of the evidence until after
Kazul testified, and that plain-error review should be conducted. See United States
v. Weaver, 554 F.3d 718, 722 (8th Cir.) (“Plain-error review permits reversal only if
the error was so prejudicial as to have affected substantial rights resulting in a
miscarriage of justice.”), cert denied, 130 S. Ct. 140 (2009). However, we need not
decide which standard of review to apply here, because even under the more stringent
standard of review, the district court properly admitted evidence of Carlson’s prior
conviction.
Carlson argues that his conviction for possessing methamphetamine had no
connection to the present case, was too remote in time to be probative of lack of
mistake or intent, and was introduced to suggest that he was the type of person who
would sell drugs. We conclude that Carlson’s prior state conviction was relevant to
whether he was part of the present drug conspiracy. See Turner, 583 F.3d at 1066
(evidence of prior drug dealings is relevant to material issue of whether defendant had
requisite intent to enter into conspiracy). We also hold that the prior conviction was
sufficiently similar in kind and close in time to the present case. See United States v.
Trogdon, 575 F.3d 762, 766 (8th Cir. 2009) (holding that evidence of 11-year-old
conduct was not too far remote in time), cert. denied, 130 S. Ct. 1116 (2010).
Furthermore, the probative value of the prior conviction outweighed the danger of
unfair prejudice. See United States v. Mendoza, 341 F.3d 687, 692 (8th Cir. 2003)
(“Evidence of prior conviction for possession of methamphetamine is probative of a
defendant’s knowledge and intent concerning current charges of conspiracy to
distribute that same drug, especially where the defendant claims he lacked knowledge
or intent to distribute the drug.”). Therefore, the district court properly admitted the
2001 state conviction into evidence under Rule 404(b).
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Carlson further argues that the district court abused its discretion in allowing
the jury to hear the evidence concerning the Tinactin spray can, particularly because
the false-bottom shaving cream can in the present case was never connected to him.
He argues that: (1) the Tinactin spray can from his 2001 state conviction was
introduced to prove that he “had the character of an illegal seller of drugs” because he
had possessed drugs in the past (Appellant’s Br. 11); (2) the government’s
introduction of the Tinactin spray can was unfairly prejudicial because it was used to
imply a characteristic unique to this drug conspiracy, when these types of cans are
available commercially, including on Amazon.com; and (3) the court’s two limiting
instructions—at the time of Kazul’s testimony and again during the final jury
instructions—were insufficient to “cure the unfair prejudicial effect on the jury when
they were introduced to false bottom cans with the implication that the use of which
is unique to this group of drug dealers” (Appellant’s Reply Br. 14). In support of
these arguments, Carlson cites United States v. Heidebur, 122 F.3d 577 (8th Cir.
1997), in which we vacated the defendant’s conviction where the evidence that the
defendant had sexually exploited his stepdaughter had been submitted to demonstrate
that the defendant had knowingly possessed explicit photos of her, because the
evidence was probative only of propensity. Id. at 578-581.
Although the admission of the underlying facts of Carlson’s prior conviction
is of some concern because the shaving cream can in the present case had no apparent
connection to Carlson, we find that the court’s two limiting instructions were
sufficient to cure any unfair prejudice. See United States v. Lothridge, 332 F.3d 502,
504 (8th Cir. 2003) (limiting instruction diminishes danger of any unfair prejudice
arising from admission of other acts). Further, we have reviewed the entire record and
find that any evidentiary error was harmless because Carlson’s substantial rights were
unaffected and the evidence had “little or no influence on the [guilty] verdict.” United
States v. McPike, 512 F.3d 1052, 1055 (8th Cir. 2008).
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VI.
Accordingly, we grant the pending motion to seal Appellee’s brief, and we
affirm the judgment of the district court.
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