FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 9, 2012

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-10884

Non-Argument Calendar

________________________

D. C. Docket No. 1:09-cr–00241-WSD-ECS-6

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus 

MAMADOU SADIO BARRY, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

 (July 9, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

Mamadou Sadio Barry appeals his conviction for felony copyright
infringement, in violation of 17 U.S.C. § 506(a), 18 U.S.C. §§ 2319(a), (b)(1) and

(2). Barry argues that the district court erred in denying his motion to suppress

three incriminating statements that he made to law enforcement, and in ruling that

certain evidence of his prior similar acts was admissible, pursuant to

Fed.R.Crim.P. 404(b). 

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 Miranda warnings prior to the questioning. 1

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 Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V. The

Miranda v. Arizona, 384 U.S. 436, 458-71, 86 S.Ct. 1602, 1619-26, 16 L.Ed.2d 694 1

(1966).

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Supreme Court in Miranda “established that custodial interrogation cannot occur

before a suspect is warned of [his] rights against self-incrimination.” United

States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007). Statements made in

violation of Miranda are not admissible at trial. Miranda, 384 U.S. at 444-45, 86

S.Ct. at 1612. We have described the test for determining custody as follows:

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

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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, 130 S.Ct. 2123

(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

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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

this evidence was improperly admitted, under Rule 404(b), because the 2004

encounter occurred approximately five years prior to the charged conduct and was

not necessary to aid the jury in rendering its verdict. As such, he alleges that the

probative value of this evidence was outweighed by unfair prejudice.

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 Rule 404(b) evidence in a motion in limine, but fails to renew

his objection at trial. United States v. Brown, 665 F.3d 1239, 1247 (11th Cir.

2011). Under plain error review, an appellant must show (1) an error that (2) is

plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity,

or public reputation of judicial proceedings. United States v. Olano, 507 U.S. 725,

731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). 

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“Federal Rule of Evidence 404(b) provides that ‘evidence of other crimes,

wrongs, or acts’ is inadmissible to prove the defendant’s bad character in order to

show conduct in conformity therewith.” Brown, 665 F.3d at 1247. However, such

evidence is admissible for other purposes, such as to prove intent or absence of

mistake. Id.; Fed.R.Evid. 404(b). We follow a three-prong test for admissibility

under Rule 404(b), and in order to be admissible: (1) the evidence must be relevant

to an issue other than the defendant’s character; (2) the prior act must be

established by sufficient proof to permit a jury finding that the defendant

committed the extrinsic act; and (3) the probative value of the evidence must not be

outweighed by its undue prejudice. Matthews, 431 F.3d at 1310-11.

“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

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Rule 404(b).” Id. (quotations and alterations omitted). As to the third prong, the

district court should consider factors such as the government’s need for evidence

of intent, the similarity between the charged and extrinsic offenses, and the time

elapsed between the charged and extrinsic offenses. Id. 

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.”

Brown, 665 F.3d at 1247 (citing Spoerke, 568 F.3d at 1251). Rule 404(b) is a rule

of inclusion, and evidence should not be excluded where it is central to the

prosecution’s case. United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006). 

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 Rule 404(b) is a

rule of inclusion, the district court did not plainly err by admitting evidence of

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Barry’s prior involvement with trafficking in counterfeit materials.

Upon review of the record, and consideration of the parties’ briefs, we

affirm. 

AFFIRMED.

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