United States v. Joseph Melcher, 672 F. App'x 547

Background

Melcher met bookmaker Thomas Mackey and acted as an agent/runner for Betchopper.com, recruiting bettors, relaying messages, and exchanging cash when bets exceeded $500.
The FBI wiretapped Mackey’s phones, intercepted calls/texts between Mackey and Melcher, and interviewed Melcher at his home without giving Miranda warnings; Melcher made incriminating admissions during a ~30-minute conversation.
Melcher was charged under 18 U.S.C. § 1955 (conducting an illegal gambling business) and conspiracy under 18 U.S.C. § 371; district court denied his motion to suppress the statements as non-custodial.
At trial the government introduced the intercepted communications, Agent Silski’s testimony about Melcher’s confession, and Agent Davis’s expert testimony describing typical roles of bookmakers and agents; Melcher testified and gave a different account.
Prosecutor in rebuttal suggested Melcher could have produced corroboration for his defense (e.g., overdue bills or collectors); defense objected as burden-shifting but the court overruled.
Jury convicted Melcher on § 1955 (acquitted on conspiracy); Melcher appealed raising five challenges summarized below.

Issues

Issue	Melcher's Argument	Government/Respondent's Argument	Held
Whether interview at Melcher’s home was custodial requiring Miranda warnings	Interview was custodial because agents viewed him as suspect, he felt compelled, and agents were armed	Home interview, short friendly questioning, no restraint; holstered guns do not equal custody; custody is objective	Not custodial; suppression denial affirmed
Whether jury instruction and evidence satisfied § 1955 "conduct" element (regularity requirement)	"Conduct" requires providing regular aid; evidence showed only isolated help, insufficient	Record shows repeated recruiting, money handling, message relay, credit extensions — regular aid established	Sufficient evidence and any instruction error not plain prejudicial error; conviction upheld
Whether expert (Agent Davis) improperly testified to legal conclusions	Expert’s labels ("agent") and implications equated to applying legal standard that Melcher "conducted" the business	Expert described typical industry roles and facts; did not define or apply statutory legal standard	Admission of expert testimony was proper; no abuse of discretion
Whether prosecutor shifted burden by noting defendant’s failure to produce corroborative evidence for his defensive story	Argued comment coerced defense to prove innocence and burden-shifted	Defendant testified; prosecutor commented on failure to corroborate defendant’s own theory not on elements; permissible rebuttal	Not prosecutorial misconduct; remarks permissible; claim rejected

Key Cases Cited

United States v. Calvetti, 836 F.3d 654 (6th Cir. 2016) (standards for reviewing custody and suppression rulings)
Stansbury v. California, 511 U.S. 318 (1994) (custody determination is objective)
United States v. Panak, 552 F.3d 462 (6th Cir. 2009) (factors for assessing custodial interrogation)
Berkemer v. McCarty, 468 U.S. 420 (1984) (routine traffic stops and Miranda analysis)
United States v. Tragas, 727 F.3d 610 (6th Cir. 2013) (plain-error review for unobjected-to jury instructions and sufficiency)
United States v. Olano, 507 U.S. 725 (1993) (plain-error prejudice standard)
United States v. Nixon, 694 F.3d 623 (6th Cir. 2012) (limitations on expert testimony and legal conclusions)
Torres v. County of Oakland, 758 F.2d 147 (6th Cir. 1985) (expert testimony may not state legal conclusions)
Berry v. City of Detroit, 25 F.3d 1342 (6th Cir. 1994) (experts may suggest answers without giving improper legal conclusions)
United States v. Tarwater, 308 F.3d 494 (6th Cir. 2002) (permissible commentary on defendant’s failure to call witnesses)
United States v. Clark, 982 F.2d 965 (6th Cir. 1993) (limits on arguing defendant had obligation to produce evidence)
United States v. Collins, 799 F.3d 554 (6th Cir. 2015) (standard for reviewing prosecutorial misconduct claims)