1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

2

Miranda v. Arizona, 384 U.S. 436 (1966).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2766

___________

United States of America, * 

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Derek Joseph Carlson, *

also known as Cup, *

also known as Buttercup, *

*

Appellant. *

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Submitted: May 14, 2010

Filed: July 27, 2010

___________

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

___________

SHEPHERD, Circuit Judge.

Derek Carlson appeals the district court’s1

 denial of his motion to suppress his

pre-Miranda2

 statements, denial of his motion for a new trial, denial of his trial

counsel’s motion to withdraw, and admission of his prior drug conviction at trial. For

the reasons set forth below, we affirm.
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I.

On January 22, 2007, law enforcement officials searched the home of Eric

Rekonen pursuant to a drug conspiracy investigation. During the search, officials

recovered Carlson’s name and address in addition to over $80,000, methamphetamine,

various drug paraphernalia, and a shaving cream can with a false bottom.

St. Louis County Sheriff’s Deputy Elizabeth Flanagan and two Drug

Enforcement Agency (DEA) agents attempted to contact Carlson. The DEA agents

left a message with Carlson’s roommate stating that they wanted to speak with

Carlson and to serve him with a subpoena, and that they would serve the subpoena at

his place of employment if he did not contact them. Carlson then arranged to meet

with the DEA agents and Deputy Flanagan over his lunch break. The three law

enforcement officers arrived at the restaurant before Carlson and deliberately arranged

themselves so that Carlson would sit on the outside of their booth. When Carlson

arrived, he requested permission to record the meeting, per the recommendation of his

attorney. The officers stated that the meeting would end immediately if Carlson

insisted on recording it and informed him that he was: not under arrest, free to leave

at any time, and free to have an attorney present. Carlson agreed to continue the

meeting without recording it and admitted, during questioning, that he was acquainted

with a number of the co-conspirators; that he had purchased drugs from them in the

past; and that Rekonen had asked him to collect drug debts, but he had declined to do

so. Carlson eventually requested an attorney, and the officers ended the conversation

immediately upon his request. The officers then served the subpoena and parted ways

with Carlson.

Two months later, Carlson was arrested pursuant to a one-count indictment

charging him with conspiring to distribute and possessing with intent to distribute 500

grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A)(viii), and 846. Carlson filed a motion to suppress the statements he had

made during the restaurant meeting. Following an evidentiary hearing, the magistrate
3

The Honorable Raymond L. Erickson, United States Magistrate Judge for the

District of Minnesota.

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judge3 issued a report and recommendation (“R & R”), recommending the denial of

Carlson’s motion to suppress because Carlson had not been in custody and his

statements were voluntary. The district court adopted the R & R and denied the

motion to suppress.

Prior to trial, the government moved under Federal Rule of Evidence 404(b) to

admit Carlson’s 2001 Minnesota state conviction for possessing methamphetamine.

Notably, Carlson had been arrested in possession of a false-bottomed Tinactin spray

can containing over six grams of methamphetamine. The district court did not address

the motion until Carlson’s jury trial. Outside the hearing of the jury, the court stated

that Carlson’s prior conviction was admissible: as evidence of a lack of mistake,

probative as to his intent, and involved a similar modus operandi because Carlson had

admitted to possessing a false-bottom can in his prior conviction and a false-bottom

shaving cream can had been seized in the present case. The court did not make an

explicit ruling on the admissibility of the underlying facts of the prior conviction.

The government called Duluth Police Department Officer Jeff Kazul to testify

as to Carlson’s 2001 state drug conviction. Before Officer Kazul testified, the court

gave the jury a limiting instruction, stating “[C]onsider [Kazul’s testimony] on the

matters of intent, knowledge, absence of mistake, or accident. . . . You may not

convict a person simply because you believe that he may have committed a similar act

on a prior occasion.” (Trial Tr. vol. 2, 243-44, Feb. 6, 2008.) Officer Kazul testified

that he had been one of the arresting officers in Carlson’s 2001 arrest, that Carlson had

admitted that the false-bottomed Tinactin spray can was his, and that over six grams

of methamphetamine were found in the false bottom. The court allowed Carlson to

make a record of his objection to Officer Kazul’s testimony. Carlson argued that it

was improper to allow the jury to hear the underlying facts of his prior state
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conviction. The court gave a second limiting instruction during the final jury

instructions.

The government also introduced recorded phone conversations between

Rekonen and Carlson, during which they discussed individuals who owed Rekonen

money and from whom Carlson needed to collect. Other witnesses at Carlson’s trial

included two of Carlson’s co-conspirators, Clayton Celley and Travis Hanson, who

testified that Carlson was part of Rekonen’s drug conspiracy. Testimony also revealed

that Celley had given Rekonen the false-bottomed shaving cream can that officials had

seized in the search of Rekonen’s home.

After the jury returned a guilty verdict but before Carlson was sentenced,

Carlson’s trial counsel moved for a new trial based on newly discovered evidence.

At a July 8, 2009 hearing, Carlson argued that a new trial was warranted because

Celley and Hanson had schemed to lie in another case in order to receive sentence

reductions in the present case. Counsel confirmed, however, that no witness would

testify as to a plot to manufacture testimony at Carlson’s trial. Carlson’s trial counsel

also requested permission to withdraw due to a conflict of interest, because a former

client, who was a witness in support of Carlson’s motion for a new trial, had

withdrawn his waiver of privilege. The district court found that the witness’s

testimony would not be relevant, and denied both motions. The court later sentenced

Carlson to 130 months in prison.

II.

First, Carlson claims that the district court erred in refusing to suppress his

statements from the restaurant meeting. Although he acknowledges that he was not

actually in custody at the meeting, he argues that his statements to the officers were

involuntary because he feared that he would be served the subpoena at work, the

subpoena meant that he would have to testify against his violent co-conspirators, and
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the DEA agents used strong-arm tactics in a “custody like situation.” (Appellant’s Br.

18.)

We review the findings of fact supporting a district court’s denial of a motion

to suppress for clear error, and review legal conclusions based on those facts de novo.

See United States v. Ingram, 594 F.3d 972, 976 (8th Cir. 2010), pet. for cert. filed

(U.S. June 15, 2010) (No. 09-11569). In United States v. Griffin, 922 F.2d 1343 (8th

Cir. 1990), we identified six factors to consider in determining whether an individual

is in custody for purposes of Miranda: 

(1) whether the suspect was informed at the time of questioning that the

questioning was voluntary, that the suspect was free to leave or request

the officers to do so, or that the suspect was not considered under arrest;

(2) whether the suspect possessed unrestrained freedom of movement

during questioning; (3) whether the suspect initiated contact with

authorities or voluntarily acquiesced to official requests to respond to

questions; (4) whether strong arm tactics or deceptive stratagems were

employed during questioning; (5) whether the atmosphere of the

questioning was police-dominated; or, (6) whether the suspect was

placed under arrest at the termination of the questioning.

Id. at 1349. However, these factors are not “exclusive,” and “[t]he ultimate inquiry

must always be whether the defendant was restrained as though he were under formal

arrest.” United States v. Czichray, 378 F.3d 822, 827-28 (8th Cir. 2004).

Here, Carlson was informed at the beginning of the meeting that he was not

under arrest and that he was free to leave at any time. See United States v. New, 491

F.3d 369, 373-74 (8th Cir. 2007) (“The most obvious and effective means of

demonstrating that a suspect has not been taken into custody is for police to inform

the suspect that an arrest is not being made and that the suspect may terminate the

interview at will.” (quotation and alterations omitted)); United States v. Ollie, 442

F.3d 1135, 1138 (8th Cir. 2006) (“[A]n explicit assertion that the person may end the
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encounter . . . generally removes any custodial trappings from the questioning.”). In

addition, Carlson was not restrained in a fashion similar to formal arrest because he

sat on the outside of a booth in a public restaurant. See United States v. Martin, 369

F.3d 1046, 1057 (8th Cir. 2004) (finding that interview was not custodial when it took

place at public restaurant, and defendant’s freedom was unrestrained beyond ordinary

confines of being seated at table in public cafeteria). Furthermore, the officers did not

arrest Carlson at the end of the meeting. See Griffin, 922 F.2d at 1349.

Contrary to Carlson’s arguments, “the coercive aspects of a police interview are

largely irrelevant to the custody determination except where a reasonable person

would perceive the coercion as restricting his or her freedom to depart.” United States

v. Lebrun, 363 F.3d 715, 721 (8th Cir. 2004) (en banc) (citing Oregon v. Mathiason,

429 U.S. 492, 495 (1977)). Carlson’s reluctance to be served with a subpoena was not

so coercive as to render the interview custodial, and, as such, the meeting with the law

enforcement officials was non-custodial and voluntary. Cf. Martin, 369 F.3d at 1057

(at interview, agents’ discussion of FBI surveillance techniques and implication that

FBI possessed information on defendant was not type of coercion that rendered

interview custodial). We therefore find no basis for reversing the district court’s

denial of Carlson’s motion to suppress.

III.

Carlson next argues that the district court erred in denying his post-trial motion

for a new trial. We review for an abuse of discretion a district court’s denial of a

motion for a new trial. United States v. McClellon, 578 F.3d 846, 857 (8th Cir. 2009),

cert. denied, 130 S. Ct. 1106 (2010).

To receive a new trial based on newly discovered evidence, a defendant

must show (1) that the evidence was not discovered until after the trial;

(2) that due diligence would not have revealed the evidence; (3) that the
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evidence is not merely cumulative or impeaching; (4) that the evidence

is material; and (5) that the evidence is such as to be likely to lead to

acquittal.

United States v. Coplen, 565 F.3d 1094, 1096 (8th Cir.), cert. denied, 130 S. Ct. 565

(2009) (quotation omitted). This is a “rigorous” standard, “because these motions are

disfavored.” United States v. Baker, 479 F.3d 574, 577 (8th Cir. 2007) (quotation

omitted). We review Carlson’s argument of newly discovered evidence in light of

these requirements.

Carlson submitted sealed exhibits, including a letter containing secondhand

hearsay, stating that Celley had lied while testifying in another case. Carlson argues

that (1) Celley’s testimony was tainted, (2) Carlson should have been allowed an

evidentiary hearing on the evidence, and (3) a new trial was warranted. Carlson relies

heavily on Mesarosh v. United States, 352 U.S. 1 (1956), where a witness had

potentially committed perjury as to a collateral matter. The court stated, “[t]he dignity

of the United States Government will not permit the conviction of any person on

tainted testimony,” id. at 9, and held that the testimony in Mesarosh was so tainted

that it provided sufficient grounds to grant a new trial, see id. at 10.

We find Carlson’s reliance on Mesarosh misplaced. There, the government

itself brought a motion to remand the case, because its witness—an informant paid to

infiltrate the Communist party—had been “wholly discredited.” Id. at 9. The Court

specifically noted that “[s]uch an allegation by the defense ordinarily will not support

a motion for a new trial, because new evidence which is merely cumulative or

impeaching is not, according to the often-repeated statement of the courts, an adequate

basis for the grant of a new trial.” Id. (quotation omitted).

Here, the only evidence in support of Carlson’s motion for a new trial was

impeachment evidence on a collateral matter, which is insufficient to warrant a new
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trial. See Coplen, 565 F.3d at 1096 (“[A] new trial is not warranted when, as here, the

additional evidence would be merely impeaching.”). As a result, we find no

exceptional circumstances warranting an evidentiary hearing. See Baker, 479 F.3d at

579 (absent exceptional circumstances, motion for new trial based on newly

discovered evidence may be decided on affidavits without hearing). Accordingly, we

find no abuse of discretion in the district court’s denial of Carlson’s motion for a new

trial.

IV.

Carlson next argues that the district court’s refusal to allow his trial counsel to

withdraw violated his right to effective assistance of counsel. “We review for abuse

of discretion a district court’s decision to allow counsel to withdraw.” Allen v. United

States, 590 F.3d 541, 544 (8th Cir. 2009).

At the post-trial hearing, counsel stated that the conflict of interest limited his

ability to offer evidence on the new-trial motion. Carlson argues that the court’s

refusal to hear witness testimony on the new-trial motion was a deliberate decision to

avoid counsel’s conflict, and Carlson emphasizes that counsel had consulted with 

the Minnesota Lawyers Board of Professional Responsibility as well as the Federal

Public Defender, and was advised by all that counsel had a conflict. However,

counsel confirmed at the hearing that none of the available witnesses would have

testified as to a plot regarding manufactured testimony at Carlson’s trial. The court

conducted a hearing and determined that the perceived conflict had no bearing on

Carlson’s case. Because the proposed testimony was not relevant to Carlson’s case,

we find no abuse of discretion in the district court’s refusal to allow Carlson’s trial

counsel to withdraw. See Fleming v. Harris, 39 F.3d 905, 908 (8th Cir. 1994) (“The

decision to allow counsel to withdraw is left to the discretion of the district court.”).

To the extent that Carlson is raising ineffective assistance of counsel, such a

claim should be pursued in a 28 U.S.C. § 2255 proceeding. See United States v.
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McAdory, 501 F.3d 868, 872 (8th Cir. 2007) (“We ordinarily defer ineffective

assistance of counsel claims to 28 U.S.C. § 2255 proceedings.”); see also Caban v.

United States, 281 F.3d 778, 779, 781 (8th Cir. 2002) (in section 2255 proceeding,

where defendant asserts ineffective assistance of counsel because of conflict of

interest involving his attorney, trial court has duty to conduct searching inquiry into

possibility of constitutional violation arising from that conflict; failure to undertake

this inquiry mandates automatic reversal of any conviction upon showing of possible

prejudice).

V.

Last, Carlson claims that the district court improperly admitted evidence of his

2001 state drug conviction, as well as the underlying facts of his 2001 state drug

conviction. Rule 404(b) states that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” Fed. R. Evid. 404(b). Prior bad act evidence may be admissible for

another purpose, but its admission is subject to a four-factor admissibility test:

The evidence must: (1) be relevant to a material issue raised at trial,

(2) be similar in kind and close in time to the crime charged, (3) be

supported by sufficient evidence to support a finding by a jury that the

defendant committed the other act, and (4) not have a prejudicial value

that substantially outweighs its probative value.

United States v. Turner, 583 F.3d 1062, 1065-66 (8th Cir. 2009) (quotation omitted),

cert. denied, 130 S. Ct. 1928 (2010). We generally review a district court’s Rule

404(b) ruling for an abuse of discretion. See id. at 1065. Subject to the district court’s

broad discretion to admit evidence of other crimes, we will reverse a district court’s

decision to admit evidence under Rule 404(b) “only when such evidence clearly had

no bearing on the case and was introduced solely to prove the defendant’s propensity

to commit criminal acts.” United States v. Littlewind, 595 F.3d 876, 881 (8th Cir.

2010). However, in the absence of an objection at trial, we review for plain error the
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admission of evidence under Rule 404(b). See United States v. Washington, 596 F.3d

926, 945 (8th Cir. 2010).

The government argues that Carlson forfeited his objection to evidence of his

prior conviction because he did not object to the admission of the evidence until after

Kazul testified, and that plain-error review should be conducted. See United States

v. Weaver, 554 F.3d 718, 722 (8th Cir.) (“Plain-error review permits reversal only if

the error was so prejudicial as to have affected substantial rights resulting in a

miscarriage of justice.”), cert denied, 130 S. Ct. 140 (2009). However, we need not

decide which standard of review to apply here, because even under the more stringent

standard of review, the district court properly admitted evidence of Carlson’s prior

conviction.

Carlson argues that his conviction for possessing methamphetamine had no

connection to the present case, was too remote in time to be probative of lack of

mistake or intent, and was introduced to suggest that he was the type of person who

would sell drugs. We conclude that Carlson’s prior state conviction was relevant to

whether he was part of the present drug conspiracy. See Turner, 583 F.3d at 1066

(evidence of prior drug dealings is relevant to material issue of whether defendant had

requisite intent to enter into conspiracy). We also hold that the prior conviction was

sufficiently similar in kind and close in time to the present case. See United States v.

Trogdon, 575 F.3d 762, 766 (8th Cir. 2009) (holding that evidence of 11-year-old

conduct was not too far remote in time), cert. denied, 130 S. Ct. 1116 (2010).

Furthermore, the probative value of the prior conviction outweighed the danger of

unfair prejudice. See United States v. Mendoza, 341 F.3d 687, 692 (8th Cir. 2003)

(“Evidence of prior conviction for possession of methamphetamine is probative of a

defendant’s knowledge and intent concerning current charges of conspiracy to

distribute that same drug, especially where the defendant claims he lacked knowledge

or intent to distribute the drug.”). Therefore, the district court properly admitted the

2001 state conviction into evidence under Rule 404(b).
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Carlson further argues that the district court abused its discretion in allowing

the jury to hear the evidence concerning the Tinactin spray can, particularly because

the false-bottom shaving cream can in the present case was never connected to him.

He argues that: (1) the Tinactin spray can from his 2001 state conviction was

introduced to prove that he “had the character of an illegal seller of drugs” because he

had possessed drugs in the past (Appellant’s Br. 11); (2) the government’s

introduction of the Tinactin spray can was unfairly prejudicial because it was used to

imply a characteristic unique to this drug conspiracy, when these types of cans are

available commercially, including on Amazon.com; and (3) the court’s two limiting

instructions—at the time of Kazul’s testimony and again during the final jury

instructions—were insufficient to “cure the unfair prejudicial effect on the jury when

they were introduced to false bottom cans with the implication that the use of which

is unique to this group of drug dealers” (Appellant’s Reply Br. 14). In support of

these arguments, Carlson cites United States v. Heidebur, 122 F.3d 577 (8th Cir.

1997), in which we vacated the defendant’s conviction where the evidence that the

defendant had sexually exploited his stepdaughter had been submitted to demonstrate

that the defendant had knowingly possessed explicit photos of her, because the

evidence was probative only of propensity. Id. at 578-581.

Although the admission of the underlying facts of Carlson’s prior conviction

is of some concern because the shaving cream can in the present case had no apparent

connection to Carlson, we find that the court’s two limiting instructions were

sufficient to cure any unfair prejudice. See United States v. Lothridge, 332 F.3d 502,

504 (8th Cir. 2003) (limiting instruction diminishes danger of any unfair prejudice

arising from admission of other acts). Further, we have reviewed the entire record and

find that any evidentiary error was harmless because Carlson’s substantial rights were

unaffected and the evidence had “little or no influence on the [guilty] verdict.” United

States v. McPike, 512 F.3d 1052, 1055 (8th Cir. 2008).
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VI.

Accordingly, we grant the pending motion to seal Appellee’s brief, and we

affirm the judgment of the district court.

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