IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30581
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JO LYNN KOONCE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
No. 97-CR-20087-ALL
April 28, 1999
Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.
PER CURIAM:*
Jo Lynn Koonce, the owner and manager of Louisiana Drug
Screening, was tried and convicted for eleven counts of fraud and
swindles under 18 U.S.C. § 1341. Koonce had contracted with
various businesses to collect urine samples, send them to
laboratories for testing, and reportq
the results. Beginning about September 1995, Koonce stopped
sending the urine samples to laboratories for testing. Instead,
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
prosecutors charged, the samples were disposed of and fictitious
test result reports were sent to the businesses, along with
fraudulent billing invoices. The indictment charged that between
September 1995 and July 1996, Koonce caused total false invoices of
$51,212.
In pretrial proceedings, Koonce sought to suppress inculpatory
statements allegedly made to FBI agents on May 20 and 24, 1997.
She alleged that she was subject to custodial interrogation during
a meeting with the agents, but was not advised of her
constitutional rights. One of the FBI agents, Randal Kevin Hicks,
testified that Koonce spoke to them voluntarily on May 20, and that
she was informed correctly that she would not be arrested during or
after the interview. On May 24, according to Hicks, he served a
grand jury subpoena for documents along with another agent and
spoke to her again.
Koonce testified that during the first interview, Hicks told
her that if she did not cooperate, she would be brought to his
office and questioned there. She testified that she thought Hicks
was pressuring her to agree to the interview. In addition, she
said she asked three times whether she needed an attorney, and that
Hicks replied that he just wanted to ask her some questions to
clear some things up. She also testified that she believed she was
being detained, because when she stood up to retrieve a file, Hicks
initially blocked her exit, and then followed her as she retrieved
it. The events on May 24, as Koonce recounts them, were similar,
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though Hicks recommended that she obtain an attorney at the
conclusion of the interview.
The magistrate judge recommended that the motion to suppress
be denied, finding Koonce’s testimony that the agents threatened to
take her to the FBI office if she did not cooperate not credible.
She also found that there was probable cause to arrest Konnce, but
that the officers had no subjective intent to detain her. A
reasonable person, the magistrate found, would not have believed
that she was under arrest. The district court adopted the
magistrate court’s findings and conclusions.
Two of Koonce’s grounds for appeal are based on events at
trial. First, one witness testified that she saw Koonce falsify a
lab report in January 1997. The defense objected, arguing that
this conduct was outside the scope of the indictment and was
impermissible under Federal Rule of Evidence 404(b). Second, a
witness testified that Koonce told her that Mary Lee Citizen, an
employee of Koonce’s, acted “like a nigger.” The defense moved for
a mistrial, but the motion was denied, and the court gave a
limiting instruction.
Koonce also objected to the Presentence Report’s calculation
of the amount of loss as $51,230. She asserted that the amount of
loss was only approximately $30,000. The district court overruled
the objection and sentenced her to 21 months of imprisonment and 36
months of supervised release, and ordered her to pay $51,230 in
restitution and a fine of $1,100. She timely appealed.
I
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“A suspect is . . . ‘in custody’ for Miranda purposes when
placed under formal arrest or when a reasonable person in the
suspect’s position would have understood the situation to
constitute a restraint on freedom of movement of the degree which
the law associates with formal arrest.” United States v.
Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc). Koonce
argues that based on the court’s findings, including that Hicks had
probable cause to arrest her and that Hicks stood between Koonce
and the door when she was about to retrieve a file, a reasonable
person would infer that she was within the direct custody and
control of the agents.
An important consideration in determining whether there was
custodial interrogation is whether the suspect was told that she
was not under arrest and was free to leave. See United States v.
Collins, 972 F.2d 1385, 1405 (5th Cir. 1992). An interview of a
suspect by law enforcement officers inevitably will have coercive
aspects because officers are part of a system that may ultimately
charge the suspect with a crime, but Miranda warnings are required
only when the coercive nature of the situation rises to the level
of restricting a person’s freedom such that they are held in
custody. See id. at 1406.
Based on the totality of the circumstances, the district court
did not err in concluding that a reasonable person would not have
deemed the interviews with the FBI to constitute a restriction on
movement equivalent to being taken into custody or arrested. Even
though Koonce testified that she believed she would have to go
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downtown if she did not cooperate, the district court’s finding
that no such threat was made is not clearly erroneous.
II
Federal Rule of Evidence 404(b) provides that evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of the accused and that she acted in conformity with that
character in the conduct charged. Evidence of other acts is
intrinsic when it is “inextricably intertwined” with the crime
charged or part of a “single criminal episode.” United States v.
Coleman, 78 F.3d 154, 156 (5th Cir. 1996) (citation omitted). Such
evidence does not implicate Rule 404(b).
The evidence concerning falsification of lab reports in
January 1997 was intrinsic. “Evidence of an uncharged offense
arising out of the same transactions as the offenses charged in the
indictment is not extrinsic evidence within the meaning of Rule
404(b), and is therefore not barred by the rule.” United States v.
Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991). Though the indictment
covered a period of time excluding January 1997, falsification of
lab reports was part of the very scheme for which Koonce was
convicted.
III
A district court’s refusal to grant a mistrial based on the
admission of prejudicial evidence is reviewed for an abuse of
discretion. See United States v. Limones, 8 F.3d 1004, 1007 (5th
Cir. 1993). A new trial is required only if there is a significant
possibility that the prejudicial evidence had a substantial impact
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upon the jury verdict, viewed in light of the entire record. See
id. at 1007-08. The district court’s assessment of a remark’s
prejudicial effect is entitled to considerable weight. See United
States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994).
The district court did not abuse its discretion in denying
Koonce’s motion for a mistrial based on the prosecution witness’s
testimony that Koonce had used a racial epithet. The prosecution
had not solicited the remark, and both the prosecution and the
defense admonished the jury that the case was not about race.
Indeed, the case had no racial overtones, and given the paper trail
Koonce had left, the case did not turn on credibility
determinations. Finding a mistrial here would be tantamount to
creating a bright-line rule requiring mistrials given the
occurrence of such statements before a jury.
IV
A district court does not have to make a precise determination
of the amount of loss for sentencing purposes, but may make a
reasonable estimate based on available evidence that has sufficient
indicia of reliability. See United States v. Vital, 68 F.3d 114,
120 (5th Cir. 1995). The PSR is considered reliable evidence for
sentencing purposes. When the defendant does not present rebuttal
evidence, a district court may adopt facts contained in the PSR
without further inquiry. See United States v. Puig-Infante, 19
F.3d 929, 943 (5th Cir. 1994). Unsupported objections to the PSR
are not competent rebuttal evidence. See United States v. Lowder,
148 F.3d 548, 552 (5th Cir. 1998).
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Koonce asserts that services other than drug screenings were
provided to customers and that the amount of loss was lower than
the PSR’s calculation. In her objections to the PSR, Koonce
asserted that she had records and documents that would show that
the total amount of the loss was about $30,000. The court
overruled her objections, finding that the indictment charged her
with fraud totaling approximately $51,212 and that she was
convicted of this. Although this statement seems to indicate that
the court relied on the evidence at trial to support the amount of
loss, the court also overruled the objection to the PSR, indicating
its reliance on that document. Koonce’s unsupported assertion that
this amount was incorrect is insufficient to show that this
information was inaccurate or unreliable. See Lowder, 148 F.3d at
553.
AFFIRMED.
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