United States Court of Appeals

For the First Circuit

No. 12-1167

UNITED STATES,

Appellee,

v.

ERIC MURDOCK,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Brock D. Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,

Boudin, Circuit Judge,

and McConnell, Jr., District Judge. *

Felicia H. Ellsworth, with whom Boyd M. Johnson III, Caitlan

W. Monahan, and Wilmer Cutler Pickering Hale and Dorr LLP were on

brief, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Thomas E. Delahanty II, United States Attorney, was on brief,

for appellee.

November 20, 2012

Of the District of Rhode Island, sitting by designation. *
McCONNELL, District Judge. A jury convicted Eric Murdock

of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). Mr. Murdock was sentenced under the Armed

Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), to 216 months in

prison. On appeal, Mr. Murdock argues that the district court

erred in three ways, by (i) refusing to suppress his statement

regarding a bag containing firearms; (ii) admitting an audio

recording of a telephone call; and (iii) sentencing him under the

ACCA. Finding no error in the district court’s rulings, we affirm. 

I.

Mr. Murdock challenges the district court’s denial of his

motion to suppress a statement he made to the police regarding the

color of a bag containing firearms and ammunition. Mr. Murdock

contends that his statement should have been suppressed because he

was in custody and not given Miranda warnings.

We recount the facts as supportably found by the district

court, including any inferences drawn from those facts. United

States v. Crooker, 688 F.3d 1, 3 (1st Cir. 2012). Here, those

facts and inferences are taken from the bench decision issued after

hearing Mr. Murdock’s motion to suppress, as well as testimony at

that hearing.

On August 20, 2010, Mr. Murdock was at the Eliot, Maine

police station on an unrelated charge. He was released, subject to

bail conditions prohibiting him from possessing firearms and

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requiring him to submit to searches of his home and his person. At

that time, Mr. Murdock and his wife were staying at a residence on

Young Street in South Berwick, Maine. 

An agent of the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”) contacted South Berwick police officer Jeffrey

Pelkey and told him that Mr. Murdock had been released from the

Eliot police station and was headed home to South Berwick. ATF had

been told that Mr. Murdock may have received some firearms in the

mail. Concerned that those firearms were at Mr. Murdock’s

residence, the ATF agent asked Officer Pelkey to ensure that no

firearms were there. Officer Pelkey requested and received a

facsimile of the bail bond containing the firearms ban and the

requirement that Mr. Murdock submit to searches of his home and his

person.

When Officer Pelkey arrived at the Young Street residence

where Mr. Murdock was staying, Mr. Murdock and his wife already had

exited their car and started walking to the residence. Officer

Pelkey, who was in uniform, verbally ordered Mr. Murdock to stop,

but Mr. Murdock continued walking away from him. Officer Pelkey

unholstered his firearm, kept it at his side, and ordered

Mr. Murdock to stop and come back. Mr. Murdock complied. Then

Officer Pelkey reholstered his weapon, spoke to Mr. Murdock, and

patted him down. Officer Pelkey advised Mr. Murdock that officers

were searching for weapons pursuant to his bail conditions. 

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Within about a minute, four additional law enforcement

officers arrived; three officers were in uniform while one was not,

but that officer had his badge and firearm. The owner of the Young

Street residence, John Belliveau, came to the front door and spoke

with Officer Pelkey. Mr. Belliveau consented to a search of the

entire residence, not just the area where Mr. Murdock was staying. 

During the next forty-five minutes to an hour,

Mr. Murdock remained on the small front lawn, an area approximately

12 to 15 feet by 20 feet. Mr. Murdock spoke to his wife, used his

cell phone, sat in a chair, and drank a beverage. He was not

handcuffed or restrained, was not told that he could not leave, and

was not advised of his rights under Miranda v. Arizona, 384 U.S. 436

(1966). Most of the time, one or two officers remained with

Mr. Murdock.

While Mr. Murdock was on the lawn, officers searched for

firearms. In the trunk of a car garaged on the premises, officers

found a red overnight bag containing two handguns and ammunition. 

The bag was given to Officer Pelkey, who carried it from the garage

towards the front lawn, holding it on his side so it was not visible

to those on the lawn. Officer Pelkey announced that he had found

“the blue bag with your weapons in it.” Mr. Murdock interjected

that the bag was red, prompting Officer Pelkey to agree that the bag

was red.

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Officer Pelkey also spoke to Mr. Murdock about a trailer

that was on the property. The trailer belonged to Mr. Murdock and

the officers wanted to search it. It had two separate doors that

were padlocked, and Mr. Murdock gave the officers a wad of keys to

see if any would fit in the locks. When none of the keys worked,

the officers told Mr. Murdock that they would probably be breaking

one of the locks. Mr. Murdock requested that the officers break the

smaller lock as it was less expensive to replace. The officers

broke the smaller lock.

Ultimately, Officer Pelkey informed Mr. Murdock that

Mr. Belliveau did not want him staying at the Young Street residence

any more. Mr. Murdock called his son, and then his son came and

picked him up.

Before trial, Mr. Murdock moved to suppress his statement

regarding the color of the bag. He argued that he was in custody

and not given his Miranda warnings, so the statement should be

suppressed. After hearing testimony and argument, the district

court ruled that Mr. Murdock was not in custody for Miranda purposes

and denied the motion to suppress. The district court reached this

conclusion by conducting an objective analysis of the following

circumstances: the location and duration of the encounter; the

number of officers; the officers’ activities; Mr. Murdock’s behavior

on the lawn; and the brief drawing of one firearm by an officer when

Mr. Murdock did not comply with an order.

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We review de novo a district court’s ultimate legal

decision to deny a motion to suppress, and review for clear error

the district court’s underlying factual findings. United States v.

Lawlor, 406 F.3d 37, 41 (1st. Cir. 2005). “Deference to the

district court’s findings of fact reflects our awareness that the

trial judge, who hears the testimony, observes the witnesses’

demeanor and evaluates the facts first hand, sits in the best

position to determine what actually happened.” United States v.

Young, 105 F.3d 1, 5 (1st Cir. 1997). For Mr. Murdock to succeed

in his challenge to the denial of his motion to suppress, he “must

show that no reasonable view of the evidence supports the district

court’s decision.” United States v. Dunbar, 553 F.3d 48, 55 (1st.

Cir. 2009) (quoting United States v. Morales-Aldahondo, 524 F.3d

115, 119 (1st Cir. 2008)).

For Miranda rights to arise, an individual need not be

under arrest but must be in custody. Crooker, 688 F.3d at 10-11

(quoting United States v. Guerrier, 669 F.3d 1, 6 (1st Cir. 2011)). 

To ascertain whether someone was in custody for Miranda purposes,

a district court “examines the circumstances surrounding the

questioning and then it sees whether those circumstances would cause

a reasonable person to have understood his situation to be

comparable to a formal arrest.” Guerrier, 669 F.3d at 6. This

analysis is guided by several factors, including “where the

questioning occurred, the number of officers, the degree of physical

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restraint, and the duration and character of the interrogation.” 

Id. (quoting United States v. Teemer, 394 F.3d 59, 66 (1st Cir.

2005)).

Mr. Murdock contends that he was in custody when he

rebutted Officer Pelkey’s characterization of the bag as blue. He

argues that a reasonable person in his situation would not have felt

free to leave and therefore he was in custody. Mr. Murdock focuses 

primarily on the initial stop, the number of officers present, his

constant monitoring by one or two officers, that he was the target

of the search, his confinement to a “very small” front lawn for

nearly an hour, and that he was not told that he was not under

arrest.

Our review reaches the same conclusion as the district

court. Mr. Murdock responded to the “blue bag” comment while he was

in familiar surroundings, where questioning generally is considered

less intimidating. United States v. Hughes, 640 F.3d 428, 435-36

(1st Cir. 2011). Five officers were present, with one or two

keeping an eye on Mr. Murdock most of the time and the others

searching the premises. This number of officers is not

overwhelming. See id. at 436. While Mr. Murdock remained on the

small lawn, he stood, sat, drank a beverage, and used his phone.

Mr. Murdock was not handcuffed or arrested. See id. (finding no

custody where defendant was confined to a small area, but nothing

suggests his personal space was invaded and no meaningful restraint

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was applied to defendant). Although Officer Pelkey drew his

firearm, he did so only once and briefly when Mr. Murdock did not

comply with his order to stop. See Crooker, 688 F.3d at 11 (finding

no custody where officers holstered guns after house was cleared). 

Mr. Murdock remained on the lawn for forty-five minutes to an hour,

a relatively short period of time. See id. at 5, 12 (finding no

custody where a multiple-hour search was conducted); see also

Hughes, 640 F.3d at 437 (finding no custody where defendant was

interviewed for ninety minutes). Finally, Mr. Murdock’s

interactions with Officer Pelkey appear to have been courteous and

compendiary: his comment regarding the red bag was brief; he

negotiated regarding which lock on the trailer would be broken; and

he responded to the news that Mr. Belliveau wanted him to leave by

phoning his son. See Hughes, 640 F.3d at 437 (finding no custody

where “the ambiance was relaxed and non-confrontational”).

The familiar surroundings, few officers, lack of physical

restraint, short time period, and nature of the verbal exchanges

lead us to conclude that Mr. Murdock was not in custody for Miranda

purposes. The fact that Mr. Murdock did not receive warning of his

Miranda rights therefore was not a constitutional violation and the

district court did not err in denying Mr. Murdock’s motion to

suppress.

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II.

Mr. Murdock next challenges the district court’s

admission of an audio recording of a telephone call to South Berwick

Police Chief Dana Lajoie. He argues that the district court abused

its discretion by admitting the recording because the government

introduced insufficient evidence from which the jury could have

concluded that Mr. Murdock was the caller.

“The admissibility of voice recordings and voice

identifications is left to the sound discretion of the trial judge.” 

United States v. Santana, 898 F.2d 821, 823 (1st Cir. 1990). We

review the district court’s admission of the telephone call for

abuse of discretion. See United States v. Díaz, 597 F.3d 56, 64

(1st Cir. 2010).

Before trial, Mr. Murdock moved in limine to exclude the

audio recording. The district court found “from the transcript that

the jury could circumstantially reach a conclusion on authentication

from the contents of the call.” Although the government offered to

present witnesses who could identify Mr. Murdock’s voice, the

district court declined to hear any as it was “content that there

is enough, because of the transcript, to deny [the] motion in limine

. . . .”

During the call, the caller identified himself as Eric

Murdock, named his wife and provided her maiden name, explained that

he was a felon but his wife was not, recited facts regarding two

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firearms arriving in South Berwick by mail, and indicated that the

firearms were taken by a SWAT team. Chief Lajoie responded that

those firearms were in the possession of the South Berwick police

department. When the caller explicated that the firearms were a

gift for his stepson and he wanted him to have them, Chief Lajoie

told the caller to provide a written statement that the firearms

were a gift. In addition, Chief Lajoie explained that ATF had to

complete a trace process, and it would take some time. When the

caller asked if he could get a call back when the firearms were

ready, Chief Lajoie said yes, and asked the caller for his name and

number. The caller replied that he was Eric Murdock, saying and

spelling both names, and provided a phone number.

To authenticate evidence, “the proponent must produce

evidence sufficient to support a finding that the item is what the

proponent claims it is.” Fed. R. Evid. 901(a). “If the court

discerns enough support in the record to warrant a reasonable person

in determining that the evidence is what it purports to be, then

Rule 901(a) is satisfied and the weight to be given to the evidence

is left to the jury.” United States v. Paulino, 13 F.3d 20, 23 (1st

Cir. 1994). Focusing on conversations, it is unnecessary for

someone familiar with the caller’s voice to identify it prior to the

evidence being admitted. United States v. Ingraham, 832 F.2d 229,

236 (1st Cir. 1987); see also United States v. DeSimone, No. 11-

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1996, 2012 WL 5458440, at *9 (1st Cir. Nov. 9, 2012). Conversations

may be authenticated by circumstantial evidence. Id.

Mr. Murdock contends that the mere assertion of identity

by the caller is insufficient evidence of authentication. Absent

confirming circumstances, we do not disagree. However, the district

court did not rely on only the assertion of identity, but also on

the contents of the call. The caller expressed knowledge of

numerous precise details regarding Mr. Murdock, his wife, the

arrival and seizure of the firearms, as well as his son. Under

these circumstances, we discern no abuse of discretion.

III. 

Lastly, Mr. Murdock challenges the district court’s

determination that he fell within the purview of the ACCA. The ACCA

mandates a 15-year minimum sentence for a person convicted of

certain federal crimes, including being a felon in possession of a

firearm, upon a showing that the defendant was previously convicted

of three predicate offenses. 18 U.S.C. § 924(e). Specifically,

Mr. Murdock challenges the sufficiency of the materials submitted

to support predicate convictions in Virginia and Florida. He 1

Although Mr. Murdock argued in the district court that his 1

prior conviction for assault and battery with a dangerous weapon in

Massachusetts did not categorically qualify as a predicate offense

under the ACCA, Mr. Murdock does not argue that here. After his

sentencing but before the filing of his appellate brief, this Court

held that a conviction for Massachusetts assault and battery with

a dangerous weapon qualifies as a predicate offense under the ACCA. 

See United States v. Hart, 674 F.3d 33,44 (1st Cir. 2012). Eric B.

Murdock is the name of the defendant in a document submitted in

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argues that the government did not satisfy its preponderance of the

evidence burden to show that he is the same person as the person

previously convicted of those two crimes.

“We review the determination that a defendant is subject

to an ACCA sentencing enhancement de novo, but we review the

district court's factual findings underlying the determination for

clear error.” United States v. Bennett, 469 F.3d 46, 49 (1st Cir.

2006) (internal citations omitted). As Mr. Murdock’s challenge to

the sufficiency of the evidence supporting his prior convictions is

a factual one, “due deference” is given to the district court’s

findings and we reverse only for clear error. United States v.

Diaz, 519 F.3d 56, 67 (1st Cir. 2008). “[A] district court’s choice

between two plausible, but conflicting, interpretations of a factual

scenario cannot amount to clear error.” United States v. Bryant,

571 F.3d 147, 156 (1st Cir. 2009) (quoting United States v.

Carrasco, 540 F.3d 43, 49 (1st Cir. 2008)).

To support the 1979 Virginia robbery conviction, the

government submitted three documents from the Circuit Court for the

City of Newport News; one was a certified copy of a document that

the district court concluded was a judgment. All three documents

indicate that the Virginia robbery defendant was Erick Ben Murdock,

support of the Massachusetts conviction. 

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with a “k” in Erick and the middle name “Ben.” In addition, the 2

certified document contains a sentence in the middle of it naming

the defendant as “Garry Wayne Vickers.”

To support the 2007 Florida aggravated assault

conviction, the government submitted certified copies of several

documents from the Clerk of the Circuit Court in Pinellas County,

Florida. The Florida documents contain the name Eric Murdoch, with

an “h” in Murdoch.

Regarding the spelling of the defendant’s name and the

use of a middle name, the district judge overruled Mr. Murdock’s

objections. The district court noted that there was not a serious

challenge to identity and spelling is often mistaken. The district

court stated that a name misspelled by a single letter or the use

of a middle name was not a basis to ignore the convictions. 

Regarding the inclusion of a Mr. Vickers in the midst of a Virginia

document, the district court examined that document and the other

Virginia documents and determined that the inclusion of Mr. Vickers

was a “scrivener’s error.” The district court was satisfied that

Virginia robbery defendant was the same Mr. Murdock appearing before

it.

At sentencing, Mr. Murdock objected to the Presentence 2

Investigation Report using the name Eric B. Murdock. He noted that

the indictment in this matter named him as Eric Murdock with no

middle initial. The district court overruled this objection

because it did not hear a sufficient challenge to the identity of

the defendant.

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On appeal, Mr. Murdock argues that the district court

committed clear error when it found that the government had proved

the fact of prior conviction for these two predicate offenses. We

disagree. The district judge carefully considered Mr. Murdock’s

arguments, but nevertheless ruled in favor of the government.

For the ACCA to apply, a sentencing judge “need only find

prior convictions by a preponderance of the evidence.” Diaz, 519

F.3d at 67. “The Government may satisfy its burden by producing a

certified copy of the conviction or an equivalent proffer.” United

States v. McKenzie, 539 F.3d 15, 19 (1st Cir. 2008). Moreover,

docket reports, charging documents, written plea agreements, and

other comparable judicial records may be used as evidence to support

prior convictions. Id.; see also United States v. Sumrall, 690 F.3d

42, 44 n.2 (1st Cir. 2012).

Based on our review of the record, the district court’s

reading of the Florida and Virginia records was plausible. We do

not find clear error in the district court’s determination that the

Mr. Murdock before it was the same individual convicted of robbery

in Virginia and aggravated assault in Florida.

Affirmed.

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