United States v. O'Neal

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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