United States v. Mamadou Sadio BarryUnited States v. Mamadou Sadio Barry
Substantial evidence also supports the decision of the administrative law judge that Hicks had improved mentally. Although Hicks qualified for benefits in 1995 because of his visual and auditory hallucinations, severe depression, suicidal thoughts, and psychosis, Hicks‘s condition had improved by December 2001, when a consultative psychologist, Andres Nazario, and a psychiatrist, Alejandro Vergara, reported that Hicks suffered from mild depression. Dr. Nazario reported that Hicks had learned to “cope with his condition,” and Dr. Vergara reported that Hicks suffered only mild limitations in his daily living, social functioning, and concentration, persistence, and pace. Also in December 2001, Dr. T. Wayne Conger, a consulting psychiatrist, reported that Hicks was capable of performing daily living activities independently and, “[a]lthough he experience[d] some depression related to his current situation and physical problems, he [was] able to relate in a socially appropriate manner and [did] not demonstrate a severe mental impairment.” Hicks argues, for the first time, that a second hypothetical question posed to the vocational expert failed to incorporate comprehensively his impairments like his mental condition, but Hicks waived this argument by failing to present it to the district court. See Stewart v. Dep‘t of Health & Human Servs., 26 F.3d 115, 115-16 (11th Cir.1994).
We AFFIRM the decision to terminate Hicks‘s benefits.
Melanie R. Snipes, Simmons & Szczecko, PC, Decatur, GA, for Defendant-Appellant.
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Mamadou Sadio Barry appeals his conviction for felony copyright infringement, in violation of
I. Motion to Suppress Incriminating Statements
Barry argues that three statements that he made to law enforcement should have been suppressed because they were involuntarily made. He argues that the police presence prior to each of his interviews created an intimidating environment, in which he believed that he had no alternative but to make incriminating statements, and he was not given his Miranda1 warnings prior to the questioning.
We review a district court‘s denial of a motion to suppress as a mixed question of law and fact. United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir.2009). Rulings of law are reviewed de novo, while the district court‘s findings of fact are reviewed for clear error and viewed in the light most favorable to the prevailing party. Id.
The
A defendant is in custody for the purposes of Miranda when there has been a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. Whether [a defendant] was in custody prior to his formal arrest depends on whether under the totality of the circumstances, a reasonable man in his position would feel a restraint on his freedom of movement to such extent that he would not feel free to leave. The test is objective: the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant. Under the objective standard, the reasonable person from whose perspective “custody” is defined is a reasonable innocent person.
United States v. Brown, 441 F.3d 1330, 1347 (11th Cir.2006) (quotations, citations, alteration, and emphasis omitted). We are to consider several factors in determining custody, “including whether the officers brandished weapons, touched the suspect, or used language or a tone that indicated that compliance with the officers could be compelled.” United States v. Street, 472 F.3d 1298, 1309 (11th Cir.2006) (quotation omitted).
If a court determines that the requirements of Miranda have been met, it must then determine that any confessions or incriminatory statements made by a defendant were voluntary in order to admit such statements at trial. United States v. Bernal-Benitez, 594 F.3d 1303, 1317-18 (11th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 2123, 176 L.Ed.2d 746 (2010). With respect to the admissibility of incriminatory statements and confessions made by a defendant to police, we consider:
the totality of the circumstances, including the details of the interrogation and the defendant‘s characteristics, when deciding whether a confession was voluntary. We focus on whether the police overreached, considering factors such as the accused‘s lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.
Id. at 1319 (citation, quotations, and alteration omitted).
The district court did not err in denying Barry‘s motion to exclude his three incriminating statements because, in each circumstance, the statements were made voluntarily during a non-custodial interview. Barry was not “in custody” during the interviews because, objectively, a reasonable innocent person would have felt free to leave or terminate the interview, and as such, Miranda requirements did not apply. Further, although several officers were present executing search warrants prior to each of Barry‘s interviews, his statements were voluntary because, during each brief interview, Barry was not threatened or physically detained. The officers did not brandish their weapons, and Barry was interviewed calmly in a private area. Under the totality of the circumstances, the evidence supports a conclusion that Barry‘s will was not overborne merely by the police presence prior to his interviews.
II. Rule 404(b) Evidence of Prior Acts
Barry argues that the district court erred in denying his motion in limine to exclude evidence of his December 2, 2004, encounter with police. He asserts that
We ordinarily review the district court‘s evidentiary rulings for abuse of discretion. United States v. Matthews, 431 F.3d 1296, 1311 (11th Cir.2005). However, “the overruling of a motion in limine does not suffice” for preservation of an objection on appeal, and as such, we review only for plain error where the defendant objects to
”
“A defendant who enters a not guilty plea makes intent a material issue, imposing a substantial burden on the government to prove intent; the government may meet this burden with qualifying 404(b) evidence absent affirmative steps by the defendant to remove intent as an issue.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir.1995). Where prior act evidence is offered as evidence of intent, the extrinsic offense must require the same intent as the charged offense. United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir.2001). With respect to the second prong, “the uncorroborated word of an accomplice provides a sufficient basis for concluding that the defendant committed extrinsic acts admissible under
Because questions of “impermissible remoteness are so fact-specific,” we have declined to adopt a bright-line rule regarding temporal proximity between the extrinsic act and the charged offense, and accordingly, the “appellant bears a heavy burden in demonstrating an abuse of the court‘s broad discretion in determining if an extrinsic offense is too remote to be probative.” Matthews, 431 F.3d at 1311-12 (quotations and citations omitted). We have concluded that an intervening period of as much as 15 years did not render evidence of prior convictions inadmissible. United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir.1995). “A limiting instruction can diminish any unfair prejudice caused by the evidence‘s admission.”
Given the relevance of Barry‘s prior conduct, its similarity with the charged offenses, the government‘s need to prove intent, and the fact that
Upon review of the record, and consideration of the parties’ briefs, we affirm.
AFFIRMED.
TJOFLAT, EDMONDSON and ANDERSON
Circuit Judges