United States Court of Appeals 

For the First Circuit 

No. 14-1672 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

CAROLE SWAN, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. John A. Woodcock, Jr., U.S. District Judge] 

Before 

Howard, Chief Judge, 

Torruella and Barron, Circuit Judges. 

Darla J. Mondou, with whom Mondou Law Office was 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 21, 2016 
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HOWARD, Chief Judge. Defendant-Appellant Carole Swan, 

former selectperson for the Town of Chelsea, Maine, appeals her 

convictions for Hobbs Act extortion, 18 U.S.C. § 1951(a), tax 

fraud, 26 U.S.C. § 7206(1), and making false statements to obtain 

federal worker's compensation, 18 U.S.C. § 1920. The sole issue 

raised on appeal is the district court's denial of a motion to 

suppress incriminating statements made during Swan's interview 

with two sheriff's deputies. Swan argues that suppression was 

required because her statements were obtained through a custodial 

interrogation without the benefit of a Miranda warning. See 

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

that her incriminating statements were not made voluntarily. See 

Blackburn v. Alabama, 361 U.S. 199 (1960). We affirm. 

I. 

The citizens of Chelsea, Maine (the "Town"), elected 

Swan to serve as a selectperson, and she held that position for 

nineteen years. During the course of her tenure, however, Swan 

came under investigation for allegedly using her public office to 

profit at the Town's expense. In early 2011, a deputy from the 

Kennebec County Sheriff's Office ("KCSO") met with Frank Monroe, 

a local businessman. Monroe told the deputy that Swan had 

instructed him to over-bill the Town for sand delivery and pay her 

a $10,000 kickback. 
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After receiving this information, the KCSO set up a sting 

operation. Under the direction of the sheriff's office, Monroe 

submitted an inflated bill to the Town for the amount indicated by 

Swan. The invoice was subsequently approved and a check to Monroe 

was issued. On February 3, 2011, Swan collected the check from 

the Town and instructed Monroe to pick it up from the mailbox 

located at the end of her driveway. Monroe picked up the check, 

while being watched by two KCSO deputies, Lieutenant Ryan Reardon 

and Detective David Bucknam. Reardon and Bucknam then gave Monroe 

a bag of money, with directions to deliver it to Swan. Monroe met 

Swan and gave her the kickback. After accepting the funds, Swan 

drove to the parking lot of a nearby laundromat. The deputies 

followed Swan and parked behind her. 

As Swan made her way towards the laundromat, the deputies 

stepped out of their vehicle and approached her. Reardon, 

displaying his badge, called out "Carole," and told her, "I want 

my money back." Swan responded that Monroe owed her money. 

Reardon reiterated that he wanted the money back. Swan returned 

to her vehicle, retrieved the bag of money, and handed it to 

Reardon. She asked whether she was in trouble. The deputies 

suggested that they discuss the issue at the sheriff's office, 

rather than in the parking lot. Swan assented and — accompanied 

by Bucknam — drove herself to the station. At some point during 
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the encounter in the parking lot, Bucknam came into possession of 

Swan's phone. 

At the sheriff's office, Swan met with Reardon and 

Bucknam in an interview room. The deputies assured Swan that she 

was "not under arrest," that she was free to leave "[a]t any 

point," and that it was "fine" if she did not "want to have [a] 

conversation" with them. Despite these assurances, Swan stayed 

and spoke with the deputies. The deputies initially maintained 

possession of Swan's cellphone. When Swan asked whether she could 

have the phone back, Bucknam told her that he would return it soon, 

explaining that he was only keeping the phone so that Swan would 

not get distracted. Shortly thereafter, Swan's phone rang and she 

reached for it, saying that it was her husband. Bucknam told Swan 

that he was "just gonna to hit the thing" and send the call "to 

voicemail." Swan responded, "All right."

Over the course of her hour-and-a-half conversation with 

deputies, Swan made numerous incriminating statements, including 

an admission that she had received approximately $25,000 in 

kickbacks. Towards the end of the interview, Swan told the 

deputies that she needed to call her husband. The officers 

returned her phone, offered to let her step outside to make the 

call, and, ultimately — when Swan opted to stay put — left the 

room. After speaking with her husband, Swan told the officers 

that they could come back in and resume the conversation. She 
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retained her phone for the rest of the interview and, when it 

ended, thanked the officers. 

A federal grand jury subsequently indicted Swan on 

multiple counts of Hobbs Act extortion, as well as tax fraud and 

making false statements to obtain federal worker's compensation. 

The district court severed the charges, allowing Swan to receive 

two separate jury trials: one for extortion and a second for the 

remaining counts. 

Before trial, Swan moved to suppress the statements that 

she had made at the sheriff's office. Following an evidentiary 

hearing, a magistrate judge recommended denying Swan's motion, 

concluding that she had not been subjected to a custodial 

interrogation and that her confession was voluntary. The district 

court agreed and denied the motion to suppress. 

Ultimately, Swan was convicted of three counts of Hobbs 

Act extortion, five counts of tax fraud, and two counts of making 

false statements to obtain federal worker's compensation. This 

timely appeal followed. 

II. 

When considering the denial of a motion to suppress, "we 

review the district court's factual findings for clear error and 

its legal conclusions de novo." United States v. Almeida, 434 

F.3d 25, 27 (1st Cir. 2006). Factual findings "are clearly 

erroneous only when . . . the reviewing court . . . is left with 
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the definite and firm conviction that a mistake has been 

committed." United States v. McLaughlin, 957 F.2d 12, 17 (1st 

Cir. 1992) (citation omitted). Additionally, we "may affirm . . . 

suppression rulings on any basis apparent in the record." United 

States v. Arnott, 758 F.3d 40, 43 (1st Cir. 2014). 

A. 

The police are required to provide a Miranda warning 

before subjecting a suspect to custodial interrogation. United 

States v. Davis, 773 F.3d 334, 338 (1st Cir. 2014). Accordingly, 

the need for a Miranda warning "turns on whether a suspect is in 

custody." United States v. Hughes, 640 F.3d 428, 435 (1st Cir. 

2011). In this context, "'custody' is a term of art that specifies 

circumstances that are thought generally to present a serious 

danger of coercion." Howes v. Fields, 132 S. Ct. 1181, 1189 

(2012). The relevant inquiry is "whether, in light of the 

objective circumstances of the interrogation, a reasonable person 

[would] have felt he or she was not at liberty to terminate the 

interrogation and leave." Id. (citations omitted) (alteration in 

original). We have previously identified a number of factors 

relevant to this determination, including "whether the suspect was 

questioned in familiar or at least neutral surroundings, the number 

of law enforcement officers present at the scene, the degree of 

physical restraint placed upon the suspect, and the duration and 
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character of the interrogation." United States v. Masse, 816 F.2d 

805, 809 (1st Cir. 1987) (citation omitted). 

Here, Swan contends that she was in custody during her 

initial encounter with Reardon and Bucknam in the parking lot 

because, among other things, the deputies effectively trapped her 

in a relatively tight space, insisted on speaking with her at the 

sheriff's office, and accompanied her on the drive to that 

location. The magistrate judge's factual findings, however, 

undermine Swan's argument. The magistrate determined that the 

deputies merely suggested that Swan speak with them at the 

sheriff's office. It similarly found that Swan was not ordered to 

ride with Bucknam. Rather, this too was merely a suggestion to 

which Swan agreed. Swan's voluntary decision to meet at the 

stationhouse strongly suggests that she was not "in custody" for 

the purposes of Miranda. See McCown v. Callahan, 726 F.2d 1, 6 

(1st Cir. 1984) (Breyer, J.) (finding interaction with law 

enforcement non-custodial because the "defendants had come to the 

station voluntarily," "were told that they were not under arrest," 

and "left the station undisturbed"). 

In any event, although we doubt that the district court's 

factual findings were clearly erroneous, it is unnecessary for us 

to decide whether the encounter in the parking lot was custodial. 

This is because, in conducting the Miranda analysis, we focus on 

the time that the relevant statements were made. For example, in 
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United States v. McCarty, 475 F.3d 39 (1st Cir. 2007), we 

considered whether to suppress unwarned statements by a defendant 

who had been handcuffed only minutes beforehand. Although we 

observed that the defendant undoubtedly had been "in custody" while 

restrained, we held that the situation became non-custodial by the 

time that the questioning began. Id. at 45-46. This was because 

the officers had taken off the defendant's handcuffs and "explained 

. . . that he was not under arrest, that he was free to leave at 

any time, and that he did not have to answer any questions." Id. 

at 46. Accordingly, there was no need to administer a Miranda 

warning.1

So too here. Even assuming that the confrontation in 

the parking lot was custodial, Swan was not entitled to a Miranda 

warning unless she remained in custody at the stationhouse when 

she made the statements now at issue. Based on the totality of 

the circumstances, we conclude that the interview at the 

stationhouse was non-custodial. 

 1 Other circuits have applied a similar analysis. See United 

States v. Gordon, 294 F. App'x 579, 584 (11th Cir. 2008) (per 

curiam) (unpublished) (holding that the defendant's telephone 

conversation with an agent after his arrest and release was not 

subject to Miranda requirements because the defendant "was not in 

custody at the time he made the statements at issue"); United 

States v. Wallace, 323 F.3d 1109, 1113 (8th Cir. 2003) (explaining 

that interrogation was non-custodial despite the fact that law 

enforcement "corralled the [defendant] at the onset of the search" 

because the "main focus must be on the individual's restraint 

during the interview" (emphasis in original)). 
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We begin by emphasizing that, as in McCarty, the deputies 

prefaced their questioning by telling Swan that she was "not under 

arrest," that she was free to leave "[a]t any point," and that it 

was "fine" if she did not "want to have [a] conversation" with 

them. These unambiguous statements would have led a reasonable 

person in Swan's position to understand that she was not "in 

custody," notwithstanding what had transpired in the parking lot. 

See McCarty, 475 F.3d at 45-46; United States v. Infante, 701 F.3d 

386, 398 (1st Cir. 2012) (holding that the defendant was not in 

custody where the interviewing officer "informed [him] during each 

interview that he was not under arrest or in custody and that he 

did not have to speak with the officers"); United States v. 

Ellison, 632 F.3d 727, 728 (1st Cir. 2010) (Souter, J.) (concluding 

that questioning did not constitute custodial interrogation where 

an officer informed the suspect that "he was not under arrest 

. . . , did not have to answer any questions, and was free to end 

the interview at any time"). 

Other evidence that the questioning was a custodial 

interrogation is also lacking. Turning to the relevant factors, 

we first consider the location of the interview. Swan met with 

the deputies at the sheriff's office behind closed doors. However, 

the deputies made it clear to Swan that she was free to leave and 

that the door was closed only for the sake of privacy. Without 

more, the mere fact that the questioning took place at the station 
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does not render it custodial. See, e.g., United States v. Quinn, 

815 F.2d 153, 160 (1st Cir. 1987) ("Even when questioning occurs 

in the stationhouse, a suspect need not be given Miranda warnings 

if he went there voluntarily and there was no such restriction on 

his freedom as to render him in 'custody.'"). 

Next, "[t]he number of officers present . . . was not 

overwhelming, lending support to a finding that the questioning 

was non-custodial." Infante, 701 F.3d at 397. Reardon and Bucknam 

were the only law enforcement officers involved in the interview. 

We have previously declined to find that a defendant was in custody 

even when confronted by as many as five police officers. See 

Quinn, 815 F.2d at 157; see also Infante, 701 F.3d at 397-98 

(holding that presence of two officers, joined briefly by two 

others, was not overwhelming). We also note that the deputies 

never drew their weapons at any point during their interactions 

with Swan. See Hughes, 640 F.3d at 436 (finding interrogation 

non-custodial when officers "carried visible weapons" which 

"remained in their holsters throughout the visit"). 

Similarly, Swan was not handcuffed or otherwise 

physically restrained at the sheriff's office. See id. ("[W]e 

think it significant that no meaningful physical restraint was 

applied to the defendant . . . . For aught that appears, no officer 

made physical contact with him." (citations omitted)). This too 

suggests that the interaction was non-custodial. 
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Finally, the duration and character of the interview 

reinforce the conclusion that Swan was not in custody. Swan spent 

approximately ninety minutes at the sheriff's office. We have 

held that encounters of similar length are not necessarily 

custodial. See, e.g., id. at 437 ("The relatively short duration 

of the interview, which lasted roughly ninety minutes . . . [is] 

also consistent with the finding that the interview was not 

custodial."). Additionally, as the magistrate judge noted, the 

conversation was characterized by "a generally even-tone back and 

forth." See, e.g., United States v. Jones, 187 F.3d 210, 218 (1st 

Cir. 1999) (holding that interview was non-custodial where the 

officer "used a normal tone of voice" during questioning). 

Swan, however, points out that the officers were in 

possession of her cellphone throughout much of the interview and 

claims that this fact renders the interaction custodial. But we 

do not find this fact to be determinative. Bucknam explained to 

Swan that the deputies would return her phone, but were holding it 

during the interview because they did not want her to get 

distracted. It is true that the deputies sent a call from Swan's 

husband to voicemail, but they did so only with her permission. 

And when Swan later told the deputies that she needed to call her 

husband, they not only allowed her to make the call but also left 

the room. In light of the facts considered as a whole, the 

officers' temporary possession of Swan's cellphone was not 
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sufficient to trigger Miranda. Nor does the precedent suggest 

otherwise. See United States v. Campbell, 741 F.3d 251, 267 (1st 

Cir. 2013) (finding questioning to be non-custodial despite the 

fact that "the defendants may have temporarily been unable to use 

their cellular phones"); United States v. Salinas, 543 F. App'x 

458, 464-65 (5th Cir. 2013) (unpublished) (referring to retention 

of suspect's phones as "some evidence that the encounter was 

custodial" but ultimately affirming finding that the defendant was 

not in custody). 

In sum, after considering the relevant factors, we 

conclude that a reasonable person in Swan's position would have 

felt able to terminate the interview and leave the station. 

Accordingly, Swan was not subjected to a custodial interrogation, 

and it was unnecessary to provide her with Miranda warnings.2 

B. 

Swan's remaining claim that her confession was 

involuntary lacks merit. The previously discussed facts establish 

 2 Swan suggests, for the first time on appeal, that the 

deputies "seized" the bag of money and cellphone within the meaning 

of the Fourth Amendment. She argues that such a seizure could 

only be justified as a "search incident to arrest." Accordingly, 

she must have been arrested and, thus, in custody for purposes of 

Miranda. This contention is without merit. Undoubtedly, some 

seizures are conducted incident to an arrest. But there are also 

a number of other situations in which warrantless seizures are 

permissible. Thus, even if a seizure had taken place (and we 

expressly decline to reach this issue), it would not necessarily 

follow that Swan was in custody. 
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that the government's conduct did not overbear Swan's will. In 

short, "[t]he tone of the interview was cordial, its length was 

reasonable, and the defendant was not deprived of any essentials," 

all of which indicates "a lack of coercion . . . [and] support[s] 

the district court's finding of voluntariness." Hughes, 640 F.3d 

at 438. 

Swan primarily argues that her statements were 

involuntary because the deputies promised her leniency in exchange 

for her cooperation. This contention need not detain us long, as 

"[i]t is well settled in the First Circuit that an officer does 

not impermissibly overbear a defendant's will by promising to bring 

the defendant's cooperation to the prosecutor's attention or by 

suggesting that cooperation may lead to more favorable treatment." 

United States v. Jacques, 744 F.3d 804, 809-10 (1st Cir. 2014). 

III. 

For the foregoing reasons, we AFFIRM Swan's convictions.