United States Court of Appeals
For the First Circuit
No. 20-1184
UNITED STATES,
Appellee,
v.
LARRY O'NEAL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Kayatta and Barron, Circuit Judges,
and O'Toole,* District Judge.
Hunter J. Tzovarras and Pelletier Faircloth & Braccio LLC on
brief for appellant.
Julia M. Lipez, Assistant United States Attorney, Donald E.
Clark, United States Attorney, and Chris Ruge, Assistant United
States Attorney, on brief for appellee.
November 4, 2021
* Of the District of Massachusetts, sitting by designation.
KAYATTA, Circuit Judge. Larry O'Neal was employed by
U.S. Customs and Border Protection (CBP) when he came under
investigation for downloading child pornography on his home
computer. Following his indictment and a trial, a jury convicted
O'Neal of one count of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B).
O'Neal now raises two issues on appeal, each concerning
pretrial conduct by the investigating agents. First, he argues
that the district court erred in refusing to suppress incriminating
statements O'Neal made when interviewed at his workplace by federal
agents. O'Neal contends that the interview was custodial; the
district court held that it was not. Second, O'Neal argues that
the district court erred in denying a post-trial motion aimed at
obtaining a Franks hearing to review an error in an affidavit that
was used to secure the search warrant that led to the discovery of
incriminating evidence on O'Neal's home computer. For the
following reasons, we find O'Neal's arguments unconvincing.
I.
We consider first whether the district court committed
reversible error in finding that O'Neal's interview was not
custodial. In so doing, we accept the district court's findings
of fact and its credibility determinations unless clearly
erroneous. See United States v. Rodríguez-Pacheco, 948 F.3d 1, 6
(1st Cir. 2020). We review de novo any conclusions of law,
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including the ultimate determination of whether the defendant was
in custody for Miranda purposes. United States v. Campbell, 741
F.3d 251, 265 (1st Cir. 2013).
A.
In January 2018, federal agents with Homeland Security
Investigations (HSI), an investigative branch of the U.S.
Department of Homeland Security (DHS), determined that two files
containing child pornography had been downloaded by a device with
an IP address assigned to O'Neal. At the time, he was employed as
an officer with CBP (also part of DHS) at the Houlton, Maine Port
of Entry. United States v. O'Neal, 1:18-cr-00020-JDL, 2018 WL
5023336, at *1 (D. Me. Oct. 16, 2018). In the course of HSI's
investigation, Special Agent Edward Ainsworth used resources from
a law enforcement database that monitors an online peer-to-peer
file-sharing network as well as the HSI Cyber Crimes Center, which
maintains a library of suspected child pornography files. United
States v. O'Neal, 1:18-cr-00020-JDL, 2019 WL 3432731, at *1 (D.
Me. July 30, 2019). Through the Cyber Crimes Center, Ainsworth
was able to view a copy of one of the two files associated with
O'Neal's IP address. Id. Ainsworth determined that that video
"depicted a prepubescent female having sexual intercourse with an
adult male." Id.1
1 The file was referred to throughout the proceedings below
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Ainsworth prepared an affidavit in support of a search
warrant for O'Neal's home, vehicles, and person, which relied in
part on the video of the prepubescent girl. Id. On January 17,
2018, that search warrant was issued. The search of O'Neal's home
took place on January 19, 2018, while O'Neal was at work. It
resulted in the seizure of O'Neal's computers and hard drives.
Id.
HSI agents arranged with O'Neal's supervisor, Assistant
Port Director Joseph Ewings, to interview O'Neal at his workplace
that morning while the search was conducted. O'Neal, 2018 WL
5023336, at *1. After his arrival at work that day, O'Neal checked
his firearms and duty gear into a lock box. Shortly thereafter,
Director Ewings asked him to help move a printer. When O'Neal
followed Director Ewings toward the ostensible location of the
printer, he arrived at a common area that served as a break and
copy room, where he was greeted by Agent Ainsworth. Id. Ainsworth
introduced himself and asked O'Neal to enter a room not occupied
at the time by CBP personnel. O'Neal agreed. He and Ainsworth
entered the room, where Agents Jonathan Posthumus and James Perro
were waiting.2 O'Neal spent approximately the next two-and-a-half
as the "12yo video" because of its filename. O'Neal, 2019 WL
3432731, at *1 n.1.
2Special Agent James Harvey, the Resident Agent-in-Charge
of the Houlton HSI office, was also present in the common area
when O'Neal first arrived, as was someone from CBP's Office of
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hours inside the room with the three agents, with the door pulled
shut but not locked. Two other individuals affiliated with the
government waited outside the room. The room was approximately 12
or 14 feet by 15 or 16 feet in size. O'Neal sat in a chair facing
a desk. Although he would have had to walk past at least one agent
to exit, nothing obstructed his path to the door. Id. at *1–2.
The agents were dressed in plain clothes and no weapons were
visible, although Ainsworth carried a holstered firearm. Id. at
*2.
Two of the agents present at the interview -- Posthumus
and Ainsworth -- later testified at the district court's hearing
on O'Neal's motion to suppress. Posthumus testified that he told
O'Neal at least twice that "he wasn't under arrest, he was free to
leave at any time." Ainsworth also testified that Posthumus told
O'Neal, "[Y]ou are not under arrest, you're free to go." The
district court credited this testimony in concluding that "the
agents told O'Neal [before the interview] that he was free to
leave." Id. at *3.
One of the agents also read O'Neal his "Beckwith
rights."3 O'Neal signed a form waiving those rights. He was not
Professional Responsibility with the last name Millar. Neither
Harvey nor Millar interacted with O'Neal or attended his interview.
3 Beckwith v. United States, 425 U.S. 341 (1976), did not
mandate any warnings, but instead held that the defendant in that
case was not entitled to Miranda warnings. Id. at 347—48. The
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apprised during the interview of his right to counsel under Miranda
v. Arizona, 384 U.S. 436 (1966). At no point did O'Neal ask to
leave or to stop the questioning. O'Neal, 2018 WL 5023336, at *2.
The agents discussed a variety of topics with O'Neal,
including hunting, motorcycles, potato farming, and church. The
agents also told O'Neal he was being investigated for possession
of child pornography and that a search warrant was being executed
at his home. During the course of the interview, O'Neal admitted
to knowingly searching for and downloading child pornography. At
some point, O'Neal was asked whether he had had any sexual contact
with children; he responded that he had not. Id. At the conclusion
of the interview, the agents asked whether O'Neal would be willing
Federal Service Impasses Panel then adopted a proposal to advise
employees of their so-called "Beckwith rights" when employees
undergo non-custodial interviews involving criminal matters. In
re Dep't of the Treasury Bureau of Engraving & Printing & Ch. 201,
Nat'l Treasury Emps. Union, Case No. 99 FSIP 96 (1999),
https://www.flra.gov/fsip/finalact/99fs_096.html (last visited
Oct. 15, 2021). As the district court explained:
[Beckwith] rights are provided to people in
the course of internal affairs investigations
before interviews are conducted. The Beckwith
warnings advise that the interviewee has the
right to remain silent, that anything the
person says may be used as evidence in a later
administrative or criminal proceeding, and
that the person's silence may be given
evidentiary value in a later administrative
proceeding.
O'Neal, 2018 WL 5023336, at *2.
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to take a polygraph to verify that fact, and he agreed. Before he
took the polygraph, O'Neal took a break and left to use the
restroom. Id. No one accompanied him to or from the restroom,
which was located outside the area of the office in which the
interview was conducted. Id. at *3.4 He returned to the then-
empty larger office to wait while the polygraph machine was set up
in a nearby smaller office. Before O'Neal took the polygraph, he
was read his Miranda rights, which he waived. After he completed
the polygraph test, the agents arrested O'Neal. Id. at *2.
B.
Miranda warnings must be given before a custodial
interrogation. United States v. Swan, 842 F.3d 28, 31 (1st Cir.
2016). There is no dispute here that the agents subjected O'Neal
to an interrogation during the interview. See United States v.
Melo, 954 F.3d 334, 339 (1st Cir. 2020) ("Interrogation for Miranda
purposes includes 'any words or actions on the part of the
police . . . that the police should know are reasonably likely to
elicit an incriminating response from the suspect.'" (alteration
in original) (quoting United States v. Sanchez, 817 F.3d 38, 44
4 In light of the clear error standard of review, we defer to
the district court's view of the facts. We note, however, that
the hearing record is somewhat ambiguous as to whether one of the
agents joined O'Neal in using the restroom. However, no party has
disputed the district court's finding that O'Neal was
"unaccompanied."
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(1st Cir. 2016))). Consequently, the pivotal question is whether
O'Neal was in custody. See id.; Swan, 842 F.3d at 31.
We answer that question by first ascertaining "whether,
in light of 'the objective circumstances of the interrogation,' a
'reasonable person [would] have felt he or she was not at liberty
to terminate the interrogation and leave.'" Melo, 954 F.3d at 339
(alteration in original) (quoting Howes v. Fields, 565 U.S. 499,
509 (2012)). Factors that can shed light on whether an individual
was in custody include "whether the suspect was questioned in
familiar or at least neutral surroundings, the number of law
enforcement officers present at the scene, the degree of physical
restraint placed upon the suspect, and the duration and character
of the interrogation." Id. at 340 (quoting Swan, 842 F.3d at 31).
The interview commenced with the officers' explanation
for their visit and their inviting O'Neal to speak with them in
private. As Agent Posthumus explained at the suppression hearing:
I said that he's not under arrest, he's free
to leave at any time. However, there were
some things that had come up in an
investigation. I'd like to explain some
things to him so he could be made aware of why
we wanted to speak with him and that hopefully
he could clarify some things for us and asked
him if he would be willing to speak in the
office as some of the matters were sensitive
and somewhat private in nature.
Consistent with the explanation that privacy was called
for, the door to the conference room was closed but not locked.
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The agents did not exercise physical control over O'Neal or
restrain him. He made a trip to the bathroom, unaccompanied,
between the interview and the polygraph examination. O'Neal, 2018
WL 5023336, at *3 (distinguishing United States v. Mittel-Carey,
493 F.3d 36, 40 (1st Cir. 2007), in which this court concluded
that a defendant was in custody in his home when agents exercised
physical control over him by escorting him everywhere, including
to the bathroom).
The number of officers present -- three in the room
itself, with an additional two outside -- was undoubtedly
concerning, but not so overwhelming as to establish custody by
itself. See Melo, 954 F.3d at 340 (finding suspect was not in
custody although two armed officers were present for questioning
with two additional law enforcement personnel on scene); Swan, 842
F.3d at 32—33 ("We have previously declined to find that a
defendant was in custody even when confronted by as many as five
police officers." (citation omitted)); United States v. Infante,
701 F.3d 386, 397 (1st Cir. 2012) (finding no custody where "two
officers were in the room, joined briefly by two others"). The
agents carried concealed weapons, but they were never drawn. See
Swan, 842 F.3d at 33 ("We also note that the deputies never drew
their weapons at any point during their interactions with [the
defendant]."); United States v. Hughes, 640 F.3d 428, 436 (1st
Cir. 2011) (finding interrogation non-custodial when officers
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"carried visible weapons" which "remained in their holsters
throughout the visit").
We have previously described a ninety-minute interview
as "relatively short." Hughes, 640 F.3d at 437 (citing Beckwith,
425 U.S. at 342–43, 347–48). This one was admittedly longer --
about two-and-a-half hours altogether -- although the tone of the
conversation was "relatively calm and nonthreatening." O'Neal,
2018 WL 5023336, at *3 (quoting United States v. Guerrier, 669
F.3d 1, 6 (1st Cir. 2011)).
The foregoing description of the circumstances of the
interview leads us to agree with the district court's conclusion
that the interrogation was not custodial. We reach that result
most confidently because of the two express statements agents made
to O'Neal, telling him that he was indeed free to leave. See Swan,
842 F.3d at 32 ("These unambiguous statements would have led a
reasonable person in [the defendant's] position to understand that
she was not 'in custody.'").
This is not to say that such warnings necessarily
preclude finding that an interview is custodial. For example, in
United States v. Rogers, this court held that the defendant was in
custody despite an officer saying, "we're not forcing you to be
right here . . . that door's unlocked [and] [n]obody's going to
jump out and try to stop ya . . . ." 659 F.3d 74, 76, 79 (1st
Cir. 2011) (Souter, J.) (alterations in original).
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In Rogers, however, the otherwise plainly noncustodial
effect of the "free to leave" statement was undercut by the fact
that the defendant was a noncommissioned military officer, ordered
by his commanding officer to meet with the law enforcement officers
who interviewed him. Id. at 76, 78. We cited "the influence of
military authority" in finding that the commander effectively
ordered the defendant, a subordinate, into the custody of the
police. See id. at 77–78.
Here, no such military influence is involved. And while
we do not doubt that a direct order from the Assistant Port
Director would carry perhaps more weight than a direct order from
a supervisor in some other jobs, no one would confuse O'Neal's
relationship with his boss with that of a subordinate and his
commanding officer in the military. Moreover, O'Neal's direct
supervisor never gave such an order, instead resorting to pretext
to lead O'Neal to the agents.
O'Neal also relies on United States v. Slaight, 620 F.3d
816, 819 (7th Cir. 2010), where the Seventh Circuit determined
that an individual was in custody although "[t]he police repeatedly
told [the defendant] that he was free to leave." But in that case,
after first telling the defendant that he was free to leave, the
law enforcement officer did not object when the defendant replied
that "he had no choice but to remain because they were going to
arrest him anyway." Id. Additionally, in Slaight, "nine (possibly
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ten)" federal and local officers arrived at the defendant's home
before the interrogation. Id. at 818. They entered the house
with "drawn guns, including assault rifles," and found Slaight
naked in his bed. Id. at 818, 820. Two of the officers escorted
Slaight from the home, where they told him they would prefer to
interview him at the police station. Slaight accompanied them to
the station, where he was interviewed in "the smallest
interrogation room [the trial judge had] ever seen." Id. at 819.
Toward the end of the interview, Slaight asked to leave the room
to smoke a cigarette, id. at 820; in contrast to O'Neal's use of
the restroom, Slaight's request was denied. Moreover, when the
officers later left the room for forty minutes, they locked him
in. Id. The court found that "[a]nyone in [Slaight's] situation
would have thought himself in custody." Id.
In his reply brief, O'Neal for the first time "suggests
it was clear error by the lower court to credit the two agents[']
testimony that they told Mr. O'Neal he was not under arrest and
free to leave at the start of the interrogation." "[A]rguments
raised for the first time in an appellate reply brief ordinarily
are deemed waived." United States v. Casey, 825 F.3d 1, 12 (1st
Cir. 2016). Even were we to assume that O'Neal has not waived his
challenge to the district court's finding that the agents told him
he was free to leave, that challenge would fail. O'Neal argues
that the agents were not believable because they did not document
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their statements that O'Neal could leave. But the report from the
two-and-a-half hour interview was only approximately two pages
long. One could readily imagine that the agents would focus on
memorializing what O'Neal said, rather than what they routinely
state in such interviews. More importantly, we find no reason to
believe that the district court's decision, which weighed the
agents' testimony on this point, was clearly erroneous.
In sum, while the warnings alone may well have been
insufficient to preclude a finding of custody, here they decisively
tip the scales in favor of a conclusion that a reasonable person
in O'Neal's spot would have believed that departure was an option.
The agents were therefore not obligated to read O'Neal his Miranda
rights before he made the incriminating statements at issue in
this appeal.
II.
We next consider the district court's denial of O'Neal's
request to file a post-trial motion for a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). This argument arises
from the procurement of the warrant used to search O'Neal's
premises. In reviewing a district court's decision to deny a
Franks hearing, this court reviews factual determinations for
clear error and its legal conclusions -- such as the probable cause
determination -- de novo. United States v. Barbosa, 896 F.3d 60,
67 (1st Cir. 2018).
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A.
In preparing the affidavit used to obtain the warrant
authorizing the search of O'Neal's home, vehicle, and person,
Ainsworth made a mistake: He stated in the affidavit that the
video of the prepubescent girl was last associated with O'Neal's
IP address on December 28, 2017 (the date a different video not
viewed by Ainsworth was downloaded), rather than on October 3,
2017 (when the prepubescent-girl video was actually downloaded).
O'Neal, 2019 WL 3432731, at *1–2. When this error was noted, the
government provided O'Neal's counsel with a corrected affidavit.
The government also used the October 3 date in its pretrial
submissions. O'Neal's counsel later stated that he did not notice
the change until the first day of trial, when the lead government
witness testified that the video of the prepubescent girl was
associated with O'Neal's IP address on October 3, 2017. Having
belatedly noticed the change, defense counsel opted to do nothing
about it during the ensuing four days of trial. Instead, after
the jury returned a guilty verdict, counsel filed a motion citing
the error in the original warrant application as reason to conduct
a Franks hearing. Id. at *1.
In that motion, O'Neal contended that the search warrant
application "contained false and misleading information." Id. at
*2. He reasoned that a viewing on October 3rd, rather than
December 28th, gave less cause to think that the video would still
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be on the computer on January 18th, the day the affidavit for the
search warrant was drawn up. The district court found O'Neal's
motion untimely, as "[a] request for the suppression of evidence
'must be raised by pretrial motion'" unless "the party shows good
cause." Id. at *2 (quoting Fed. R. Crim. P. 12(b)(3)(C),
12(c)(3)). The district court further held that "even if the
request is treated as timely, O'Neal has failed to make the
required preliminary showing that would entitle him to a Franks
hearing." Id. O'Neal, in the district court's estimation, failed
to show that any false statement or omission was made "knowingly
and intentionally or with reckless disregard for the truth." Id.
at *3 (quoting United States v. McLellan, 792 F.3d 200, 208 (1st
Cir. 2015)). The District Court also found that the affidavit,
when reformed to correct the error, was sufficient to support a
finding of probable cause.
B.
When, as here, incorrect information is contained in an
affidavit that is used to obtain a warrant, the trial court may
hold a so-called Franks hearing to determine whether evidence
obtained with the warrant should be excluded at trial. 438 U.S at
156. However, "[a] defendant is entitled to a Franks hearing . . .
only if he first makes a 'substantial preliminary showing' of the
same two requirements that he must meet at the hearing." United
States v. Arias, 848 F.3d 504, 511 (1st Cir. 2017) (quoting
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McLellan, 792 F.3d at 208). First, he must show that "a false
statement or omission in the affidavit was made knowingly and
intentionally or with reckless disregard for the truth," and
second, he must establish "that the false statement or omission
was 'necessary to the finding of probable cause.'" Id. (quoting
McLellan, 792 F.3d at 208).
An application for a Franks hearing ordinarily is
required to meet timeliness standards: A request for the
suppression of evidence "must be raised by pretrial motion if the
basis for the motion is then reasonably available and the motion
can be determined without a trial on the merits." Fed. R. Crim.
P. 12(b)(3)(C). "[I]f the party shows good cause," a court may
consider an untimely request. Fed. R. Crim. P. 12(c)(3).
The premise of O'Neal's argument -- that Ainsworth
intentionally included materially false information in the
affidavit -- is dubious. We see no reason to view the several-
month difference in dates as material. Nor does the mistake appear
to have been intentional. See United States v. Tanguay, 787 F.3d
44, 49 (1st Cir. 2015) (errors that are clearly only negligent do
not call for a Franks hearing). In any event, we agree with the
district court that O'Neal's motion was untimely. All of the
relevant information was available to O'Neal before his trial
began. Counsel admits noticing the error on the first day of
trial, but chose to wait to see what the verdict would be before
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raising the issue. O'Neal has therefore not provided any "good
cause" for the delayed filing of his request.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
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