CORRECTED OPINION
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLOUGHBY WARREN COLONNA, IV,
No. 06-5237
a/k/a maryanna,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(2:06-cr-00061-RGD)
Argued: September 28, 2007
Decided: December 20, 2007
Correction of Printer Error in Footnote 6: December 28, 2007
Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge,
and Samuel G. WILSON, United States District Judge for the
Western District of Virginia, sitting by designation.
Reversed and remanded by published opinion. Judge Gregory wrote
the opinion, in which Chief Judge Williams and Judge Wilson joined.
COUNSEL
ARGUED: James Orlando Broccoletti, ZOBY & BROCCOLETTI,
Norfolk, Virginia, for Appellant. Michael Calvin Moore, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: Chuck
2 UNITED STATES v. COLONNA
Rosenberg, United States Attorney, Alexandria, Virginia, for Appel-
lee.
OPINION
GREGORY, Circuit Judge:
Willoughby Warren Colonna, IV appeals his conviction for Trans-
porting Child Pornography in violation of 18 U.S.C. § 2252A(a)(1),
Advertising the Exchange of Child Pornography in violation of 18
U.S.C. § 2251(d)(1)(A), and Possession of Material Containing Child
Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Colonna
raises several errors on appeal, asserting that the district court improp-
erly: (1) denied his motion to suppress; (2) abused its discretion in
excluding relevant testimony; and (3) improperly questioned him.
Having considered Colonna’s claims, we conclude that the district
court’s denial of his motion to suppress was erroneous. For the rea-
sons stated below, we reverse and remand the case for trial.
I.
In March 2004, while conducting an online undercover investiga-
tion, a Federal Bureau of Investigation ("FBI") agent, Kenneth Jensen
("Agent Jensen") accessed a chat group called "100%PreTeenGirl-
SexPics." After gaining access to an f-server,1 Agent Jensen observed
child pornography files.2 Within a few minutes, he uploaded four
child pornography videos. FBI software allowed the agent to capture
the IP address of the f-server, which was assigned to Colonna’s home
in Chesapeake, Virginia.
On June 24, 2004, at 6:29 a.m., Special Agent Christopher A. Kahn
("Agent Kahn") along with twenty-three FBI Task Force Officers and
1
An "f-server" is a file-sharing system on a computer that allows others
to access the computer via the internet and trade files. (J.A. 312-16.)
2
The agent accessed the files by typing "!maryanna"; a trigger term
referenced in the f-serve advertisement.
UNITED STATES v. COLONNA 3
a computer forensic technician executed a search warrant for child
pornography at Colonna’s home.3
Colonna, his parents, and his younger sister were all present in the
house. The agents awoke Colonna’s parents and sister and allowed
them to dress before bringing them to the living room for questioning.
The parents informed the agents that Colonna was asleep in the third
floor attic. The agents then went upstairs and kicked open Colonna’s
bedroom door. At gun point, the agents ordered Colonna to dress and
come downstairs. Colonna contends as he attempted to put on his
pants, an agent slammed him into a door jam causing injuries to his
spine.
The agents escorted Colonna to the living area with his other fam-
ily members. When Colonna’s mother attempted to smoke a cigarette,
an agent told her that she could not smoke in the house and would not
be allowed to return if she went outside. Colonna, his mother, and his
sister went outside, and agents followed them.
Agent Kahn asked to speak with Colonna in a FBI vehicle. He
advised Colonna that he was not under arrest. Parked behind the
house, Agent Kahn along with another agent, Beverly Borgia ("Agent
Borgia"), interviewed Colonna. During the conversation, Colonna
informed the officers that there were four computer towers and one
laptop, all connected to the internet through a wireless router, in the
home. One computer was located in his bedroom.
Initially, Colonna denied having any knowledge of child pornogra-
phy on the computers but admitted to viewing and trading adult por-
nography over the internet. After Agent Kahn twice advised Colonna
that lying to a federal agent was a felony, he admitted sharing child
pornography through the f-server. Colonna informed Agent Kahn that
about a year prior to the search, he created the f-server to send,
receive, and store child pornography videos of underage girls.
3
Agent Kahn testified that he took twenty-three agents because the
house was of considerable size; three stories high, four bedrooms, and a
large detached garage.
4 UNITED STATES v. COLONNA
Agent Kahn then suggested Colonna write a statement for the
Assistant United States Attorney investigating the crime. Colonna
agreed. According to his written statement, Colonna "was under the
impression that viewing other people’s illegal acts would be less ille-
gal/wrong, than trying to live out those fantasies." (J.A. 53). He also
stated that no one else had access to his computer and that he took
total responsibility for any material found on the computer.
Both Agents Kahn and Borgia witnessed and signed the statement.
The interview lasted approximately three hours, during which Agent
Kahn spoke to other agents and Colonna took several cigarette breaks.
However, the agents never left Colonna unattended. Colonna never
asked to leave and did not receive Miranda warnings.
During the search, the agents seized, among other things, the com-
puter located in Colonna’s bedroom. FBI computer forensic analysis
confirmed that the file sharing software and videos were consistent
with files uploaded and logged by Agent Jensen in March, 2004. One
year and ten months after the search, the FBI arrested Colonna for
transporting, advertising, and possessing child pornography.
Colonna filed a motion to suppress his oral and written statements.
The district court denied the motion, ruling that Miranda warnings
were not required because Colonna was not in custody. Thus, the
statement along with testimony from the agents, Colonna, and his
family and friends were introduced at trial.
In his defense, Colonna sought to introduce impeaching testimony
from his brother, Charles Colonna ("Charles"), that a mutual friend
and defense witness, switched the f-server’s channels to capture vid-
eos about teens as "a joke" and that, in 2006, the same witness down-
loaded child pornography to a computer that he and Charles shared.
The district court, however, restricted Charles’s testimony on these
points.
Finally, throughout the trial, the district court questioned Colonna
on various issues, which Colonna now contends prejudiced him
before the jury.
UNITED STATES v. COLONNA 5
II.
Colonna challenges the district court’s denial of his motion to sup-
press. He argues that he was in custody for Miranda purposes during
his interview with FBI agents, and because Miranda warnings were
not given, his statements should have been suppressed.
A.
In considering a district court’s denial of a suppression motion, we
review a district court’s findings of fact for clear error and its legal
conclusions de novo. United States v. Uzenski, 434 F.3d 690, 704 (4th
Cir. 2006) (citing United States v. Parker, 262 F.3d 415, 419 (4th Cir.
2001); see also United States v. Rusher, 966 F.2d 868, 873 (4th Cir.
1992) (citing United States v. Ramapuram, 632 F.2d 1149, 1155 (4th
Cir. 1980). We construe the evidence in the light most favorable to
the Government, the prevailing party below. Parker, 262 F.3d at 419
(citing United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998)).
B.
The Fifth Amendment requires that "[n]o person . . . shall be com-
pelled in any criminal case to be a witness against himself." U.S.
Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 444 (1966),
the Supreme Court adopted prophylactic procedural measures to
ensure that a defendant is advised of his Fifth Amendment rights dur-
ing custodial interrogations. "Absent formal arrest, Miranda warnings
only apply ‘where there has been such a restriction on a person’s free-
dom as to render him "in custody."’" Parker, 262 F.3d at 419 (4th Cir.
2001) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per
curiam)). An individual is in custody "when, under the totality of the
circumstances, ‘a suspect’s freedom from action is curtailed to a "de-
gree associated with formal arrest."’" Id. (quoting Berkemer v.
McCarty, 468 U.S. 420, 440 (1984)). The operative question is
whether, viewed objectively, "a reasonable man in the suspect’s posi-
tion would have understood his situation" to be one of custody.
Berkemer, 468 U.S. at 422.
The Government argues that Colonna was not in custody because:
(1) the interrogation occurred outside of his home; (2) Colonna was
6 UNITED STATES v. COLONNA
told that he was not under arrest; and (3) Colonna was not arrested
until almost two years later. Colonna counters that the totality of the
circumstances indicate he was "in custody" for Miranda purposes.
The district court found that Colonna was awakened by armed
agents and guarded by agents until the search and interview con-
cluded. The home was inundated with approximately 24 officers who
gave Colonna and his family members instructions; that is, they told
them where to sit and restricted their access to the home. Colonna did
not voluntarily request to speak with Agent Kahn. Instead, Agent
Kahn requested that Colonna accompany him to a FBI vehicle to
answer questions, wherein a full-fledged interrogation took place.
Agent Kahn questioned Colonna for almost three hours, albeit with
breaks. But, even during these breaks, Colonna was constantly
guarded. Although Colonna was not placed under formal arrest, he
was told twice that lying to a federal agent was a federal offense.
And, at no time was he given Miranda warnings or informed that he
was free to leave.
The district court found that "given the totality of the circum-
stances, a reasonable person would have believed that his freedom
was curtailed." (J.A. 297.) But, according to the district court, because
Agent Kahn specifically told Colonna he was not under arrest and did
not, in the end, arrest him for two years, a custodial interrogation did
not take place. While we find no error in the district court’s findings
of fact, we do take issue with the district court treating Agent Kahn’s
statement to Colonna that he was not under arrest as the dispositive
fact in its determination of custody.
Indeed, there is no precedent for the contention that a law enforce-
ment officer simply stating to a suspect that he is "not under arrest"
is sufficient to end the inquiry into whether the suspect was "in cus-
tody" during an interrogation. See Davis v. Allsbrook, 778 F.2d 168,
171-72 (4th Cir. 1985) ("Though informing a suspect that he is not
under arrest is one factor frequently considered to show lack of cus-
tody, it is not a talismanic factor"). Rather, we have held that the "ulti-
mate inquiry" looks to the totality of the circumstances to determine
whether they indicate an individual’s freedom of action is curtailed to
a degree associated with formal arrest. Parker, 262 F.3d at 419; see
also California v. Beheler, 463 U.S. 1121, 1125 (1983). Here, the dis-
UNITED STATES v. COLONNA 7
trict court made two factual findings that support a custody determi-
nation: First, "even if the agents truly requested [Colonna’s] voluntary
participation in an interview, it is highly doubtful that a reasonable
person would have felt entitled to decline their request [to talk]"; and,
second, "the agents did everything short of actually, physically
restraining [Colonna] to make him, or any reasonable man, believe
that he was not free to leave." (J.A. 294, 297.) Given that the district
court made both of these findings, it is difficult to see how it could
then say that Colonna was not in custody.
Moreover, despite acknowledging clear indicia of custody, the dis-
trict court allowed a single factor to "sway the analysis." (J.A. 297.)
While one factor "may sway" the analysis under the totality of the cir-
cumstances test, it is clear that the circumstances of Colonna’s inter-
rogation - telling Colonna that he was not under arrest — is
insufficient to preclude a finding of a custodial interrogation.
In United States v. Uzenski, we examined the totality of the circum-
stances and held that the defendant, a police officer, was not in cus-
tody for purposes of Miranda. 434 F.3d 690, 704 (4th Cir. 2006).
Although Uzenski was explicitly told he was not under arrest, the
officer’s statement was only one of several factors in our calculus of
determining custody — not a dispositive factor, as the Government
suggests. In fact, Uzenski was also informed that he was free to leave
at any time. We concluded, therefore, that Uzenski was not in custody
because the totality of the circumstances demonstrated that the "coer-
cive pressures that can be brought to bear upon a suspect in the con-
text of custodial interrogation" were not present. Id. at 705 (quoting
Pasdon v. City of Peabody, 417 F.3d 225, 228 (1st Cir. 2005)). Unlike
Uzenski, here coercive pressures existed because Colonna’s interroga-
tion occurred in a police dominated environment where the agents did
everything to make Colonna, or any reasonable man believe that he
was not free to leave.
For example, the house was inundated with over twenty-three FBI
agents. Colonna was awakened at gun point and guarded at all times.
In Colonna’s presence, an agent instructed his mother that she could
not smoke in her own house and that she could not reenter the house
if she chose to go outside. Agents accompanied Colonna, his mother,
and his sister outside. While questioned in the FBI vehicle, Colonna
8 UNITED STATES v. COLONNA
was bracketed by Agent Borgia in the backseat and Agent Kahn in the
front seat, both of whom were armed. During the three hour inter-
view, Colonna was guarded by Agent Borgia when he smoked ciga-
rettes. See United States v. Griffin, 922 F.2d 1343, 1350-51 (8th Cir.
1990) ("We realize that the likely effect on a suspect of being placed
under guard during questioning, or told to remain in the sight of inter-
rogating officials, is to associate these restraints with a formal
arrest."). Colonna did not initiate police questioning and was never
told that he was free to leave or that he did not have to respond to
questions. See United States v. Ollie, 442 F.3d 1135, 1138 (8th Cir.
2006) (noting that although advising someone that he or she is not
under arrest mitigates an interview’s custodial nature, "an explicit
assertion that the person may end the encounter is stronger medi-
cine.").
As Uzenski makes clear we have never abandoned the totality of
the circumstances test or short stopped our analysis at the mere utter-
ance of the phrase — "you are not under arrest." Uzenski, 434 F.3d
at 705. To do so, would provide law enforcement officers with a com-
plete "end run" around Miranda.4 At bottom, considering the totality
of the circumstances, a reasonable man in Colonna’s position would
have felt that his freedom was curtailed to a degree associated with
formal arrest. Thus, his statements should have been suppressed.
Further, we cannot conclude that the district court’s error is harm-
less. See Correll v. Thompson, 63 F.3d 1279, 1291 (4th Cir. 1995)
(noting that even if admission of a confession was error, a defendant
is not entitled to relief if the error was harmless). In our view, the
strength of the Government’s case against Colonna, absent his oral
and written inculpatory statements, is questionable. In fact, the Gov-
ernment conceded at oral argument that admission of Colonna’s oral
statements would not be harmless error.5
4
To be sure, we do not mean to suggest that advising a suspect that he
is not under arrest is irrelevant to an "in custody" determination. Rather,
we merely point out that it is not dispositive.
5
Neither party briefed or addressed the issue of harmless error.
UNITED STATES v. COLONNA 9
Accordingly, the judgment of the district court is reversed, Colon-
na’s sentence is vacated, and the case is remanded for trial on the merits.6
REVERSED AND REMANDED
6
Colonna also asserts that his conviction should be reversed because
the district court: (1) did not allow him to introduce impeaching testi-
mony from his brother concerning a defense witness; and (2) improperly
questioned him throughout the trial, which prejudiced him before the
jury. Because we vacate Colonna’s conviction on other grounds, we need
not reach these issues.