*1 1232 case dif- retrial. The instant manded for on his conviction
claims, reversal of the from Prosise because the guilty significantly of on fers plea his grounds, actually liti- postconviction a claims were fourth amendment foreclose remand would arrest, an search on the merits challenging gated decided action civil inculpato- produced case, the de- which had in Prosise present and seizure whereas permit the courts obviated ry entry plea guilty Missouri a evidence. of of fendant’s by a preclusion of use issue defensive such a determination. the need for against party a prior suit stranger to circumstances, we the courts believe Insur- prior suit. See Oates estoppel give collateral would of Missouri Safeco America, 719 583 S.W.2d ance Co. ruling on trial effect court’s (banc). estoppel ap- (Mo.1979) is Collateral subsequent claims in a fourth amendment (1) prior the issue propriate when on claims. the same 1983 action based issue in the proceeding is identical judgment of the district Accordingly, the action, (2) adjudication prior present court is affirmed. merits, (3) judgment in a on resulted against estoppel collateral party privity party was a or is asserted prior
party adjudication, estoppel is party against whom collateral opportunity to had a full and fair asserted prior suit. litigate the issue Id. See City Ass’n v. Polled American Hereford America, Appellee, UNITED (Mo. STATES City, Kansas 626 S.W.2d 1982). According appellant, present not satisfied in the criterion DOCKERY, Appellant. Appellant on the merits. ar- gues the reversal of his conviction on preclusive effect of appeal vitiated decided as of that conviction. issues Court disagree. Eighth Circuit. litigated his Appellant fully fourth March 1984. Submitted court, claims in state trial amendment appeal assign
but failed
respect
of error with
to the trial
ments
Certiorari Denied
Oct.
denial of those claims. Where an
court’s
See
which could been not, are deemed waived. See State v. (Mo.1969); 436 S.W.2d Sykes, State Liolios, (Mo.1923). S.W. party could have raised an issue “When not, appeal but did a court later prior hearing the same case need consider Wright, the matter.” of appellant’s reversal conviction destroy finality therefore fourth ruling on his trial court’s claims, though the conviction appeal reversed on
bezzling bank funds in violation of 18 U.S.C. 656. The District Court1 sen- tenced her to concurrent of imprison- terms year ment of a and day on Counts I and II suspended imposition of sentence on counts, the remaining placing instead probation years for three following her imprisonment and requiring to make restitution to her employer in the amount $1,300. appeal, panel On of this Court reversed. United States v. Dockery, (8th Cir.1983). government’s The petition rehearing for en banc was then granted, opinion panel was there- law, fore operation vacated and the case was re-submitted to the Court en banc. We affirm. now
I. 8, 1982,
On Special October Agents Herb Ray Davis and McElhaney inter- viewed concerning thefts of funds employer, the Union National Rock, Bank of Little Arkansas. Dockery denied any knowledge of such thefts. On November one of fellow employees gave statement claim- ing that both he and had embez- zled funds from the bank. following
The
day,
November
Special Agents Davis and McElhaney
caused a bank official to summon Dockery
for questioning vacant office in
Lessenberry Carpenter
by Jack L. Les-
building
where
Rock,
senberry,
Ark.,
appellant.
Little
for
working.
arrived, Agent
When
Davis
told her that
not have to answer
Proctor,
George W.
Atty.,
Robert J.
any questions, she was not under arrest
Govar,
Rock,
Atty.,
Ark.,
Asst. U.S.
Little
arrested,
nor
was she
to be
and that
appellee.
for
she was
leave at
time. No
LAY,
Before
Chief Judge, and HEA-
warnings
given.
During
NEY, BRIGHT, ROSS, McMILLIAN, AR-
only
which lasted
sixteen
NOLD,
GIBSON,
JOHN R.
FAGG and minutes,
told
BOWMAN,
bane.
en
they believed
involved
the theft
funds and
her finger-
ARNOLD,
Judge.
fact,
prints.
only
fingerprints the
an employee
of a federal-
had were those retrieved from the
bank,
ly
appeals
insured
from her
personnel
convic- bank’s
records.
stead-
by a jury
tion
of seventeen
fastly
thefts,
counts of em-
denied
Overton,
Hon. William R.
sas.
Judge
District
Eastern
District Arkan-
required
are
terminated.
the interview
interroga
there is a custodial
Dockery to wait
left,
then
at 1612. The
tion.
room
outside the interview
reception area
inwas
custo
question
is whether
ques-
wanted
bank officials
This
interrogated.
dy when she was
Dockery complied.
tion her.
*3
Jones,
United States
to
is similar
later,
Dockery asked
A few minutes
curiam).
(8th Cir.1980) (per
In
agents
FBI
find the two
to
bank official
Jones, a
in a bank embez
suspect
that
again.
them
to talk to
she wanted
because
zlement,
agents
by
was
interviewed
re-
again
returned and
agents
The FBI
questioning,
At
time of
her home.
Dockery
that
peated their
suspect
only potential
was “the
and
Jones
to leave
talk to them and was
have to
certainly
investiga
was the focus of the
Dockery be-
she desired. When
whenever
speak
to
tion.” Id.
agreed
at 614.
Jones
in
deny
gan
again to
her
once
that
agents and
informed
she
was
funds, Agent Davis told
thefts
free to re
not under arrest and was
was
busy
not interest-
her that he was
and was
There
questions.
was
fuse to answer
repeat
had
hearing her
what she
ed in
of the
evidence of conduct on
no
asked, “Why don’t
already
He then
said.
agents indicating that Jones
interrogating
this
happened?” At
you tell me what
custody,
agents employ
in
nor did the
was
implicat-
point, Dockery gave a statement
at 616.
any strong-arm tactics.
We
ing
in the thefts. This statement
herself
that Jones's statements were admissi
held
by
agents, and
one of the
was transcribed
ble.
making
it after
corrections.
Dockery
Dockery argues that
the circum
to
hearing
her motion
pretrial
In
of her
were more co
stances
confession, Dockery testified
suppress the
Jones.
than those in
The differ
ercive
attor-
requested
speak to an
that
had
to
she
insignificant.
agents’
mis
ences are
on No-
ney during
of the interviews
both
Dockery
that
representation
but was
vember
incriminating
fingerprint
evidence
“has
The FBI
doing
agents.
so
nothing
[Dockery]
to do with whether
was
agents
stated
testimony
denied this
and
Miranda
custody
purposes
in
see an
that
had never asked to
Mathiason,
Oregon
rule.”
429 U.S.
attorney.
parties agreed that
All
97 S.Ct.
handcuffed,
physically
was never
unlike
strained,
abused,
physically
or threatened
employer
was directed
her
interviews,
although
during the two
agents, “[o]rdinarily,
meet
with
closed.
door
interview room was
people are at work their freedom
move
The District Court discredited
restricted,
meaningfully
about has been
not
for an
regarding
requests
testimony
her
the actions
law enforcement officials
that, considering all
attorney and concluded
[sic],
voluntary obliga
workers’
circumstances,
interrogations
the two
Immigration
their employers.”
tions to
were neither
resulting in her confession
—
Naturalization
Service v.
impermissibly coercive.
custodial nor
—,
—,
104 S.Ct.
(1984) (Fourth
L.Ed.2d 247
Amendment
II.
case).
Finally,
though the
argues
admission
that
reception
Dockery to
area
wait
into evidence violated
confession
herself
after the first
initiat
right against
Fifth Amendment
self-incrim-
and, at
its
ed the second interview
com
ination,
give
not
mencement,
because the
did
again
was
that
advised
v. Ari-
warnings required by any questions
to answer
was
not have
zona,
found that
go.
384 U.S.
free to
District Court
because,
(1966),
custody
not
and that her
L.Ed.2d 694
was
event,
involuntary.
voluntary,
and we cannot
her confession
confession
clearly erroneous.
reject
say
finding
that that
arguments.
Accordingly,
affirm
we
informed
that
questions
District Court.
need
answer
does
automatically
render the interrogation
McMILLIAN,
Judge,
non custodial. United
BRIGHT,
HEANEY
F.2d at 616. I would hold that the interro
dissenting.
join,
gations were
conducted
custodial set
ting
appellant
that
improperly
I would reverse
respectfully
I
dissent.
given
warnings.
district court for the
judgment of the
panel opinion,
reasons
addition,
agree
I would
Dockery,
ings at home like the defendant in United F.2d 613 Her freedom of movement degree
was restricted to a certain itself, employment fact of as noted FAUGHT, Linda on behalf of herself at —, majority opinion, citing supra INS persons similarly and all other — U.S. —, situated, Appellant, (1984) (fourth issues). However, appellant customary at her work station in bank HECKLER, Margaret Secretary of during the interrogations; Services, Health & Human specifically office summoned another Appellee, comparison, questioning. By employ Reagen, Michael V. Commissioner IA Delgado ees “about Services, Herr, Dept. Roger of Social business, ordinary operating their machin Chief, Assistance, Bureau of Financial ery performing job assignments. Dept. IA of Social Services. disrup the surveys While did cause some tion, including the efforts some workers Peggy McCLURG, Appellant, hide, the record also indicates work ers were not moving about REAGEN, Herr, Roger V. Michael Iowa the factories.” Id. But see id. at 1769-70 Department of Social J., (Brennan, dissenting) (describing the Officers, Services surveys having widespread caused dis among turbance the workers and intim Margaret Heckler, Appellee. idating atmosphere created in the INS vestigative tactics). Moreover, appellant specifically directed United States Court departing Eighth agents to remain in the area Circuit. outside office for questioning by further offi Submitted May cials. there was no evidence of physical “strong restraint or arm tac tics,” the absence of factors is not Similarly, appel
conclusive. the fact that formally lant had not been arrested or