NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0077n.06 Case No. 12- 1849 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. MICHAEL JOHN SIMON, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE E ASTERN DISTRICT OF MICHIG AN

BEFORE: BATCHEL DER, Chief Circuit Judge; MERRITT and KETHL E DG E , Circuit Judges. ALICE M. B AT CH E L DER, Chief Judge. After the district court denied his motion to sup press evidenc e, a jury convicted Michae l J ohn Simon of esca ping from fede ral custody in violation of 18 U.S.C. § 751(a)

. On appea l, Simon say s that the district c ourt err ed by deny ing his motion to suppress and that the evidenc e at trial was insufficient to support his conviction. For the

rea sons that follow, we a ffirm. On M ay 2 5 , 2011, while Simon was in fede ral custody under sentenc e for a fede ral b an k fra ud conviction, the Bur eau of Prisons temporar ily rele ased him via a furloug h transfe r. The Fe dera l Correc tional I nstitut e in Elkton, Ohio, g ave Simon a voucher for a Gre y hound bus ticket so he could trave l f

rom Young stown, Ohio, to the Renaissanc e Residential Reentry Center (“ha lfway house”) in Detroit, Mi chig an. Simon’s furloug h require d that he re ach the halfwa y house by 4:15 PM on May

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But Simon had other plans, and tried to take a bus to Buf falo, New York, instead of Detroit. At Simon’s trial, a Gre y

hound ticket ag ent from Young stown testified that Simon prese nted his voucher to her and that the voucher had “B uffa lo” handwr itten on it. When the ag ent ref used to g ive S i m o n a t i ck et to Buf

falo beca use “De troit” had alre ady been ty ped on the voucher , Simon was displeased, but ultimately took the ticket, boarde d the bus, and rea ched Detroit at approximately 3:45 PM on May

25, 2011. Simon did not chec k in at the halfwa y house by 4: 1 5 P M

. I nstead, he called the halfwa y house and advised the officia ls there that he would not be repor ting as require d but instead was g oing to defe ct to Canada

. He then went to the Canadian Embassy , but it was closed. So he spent the night in the lobby of a Marr iott Hotel and the next day , M ay 2 6 , went to the Canadian Embassy ag ain, wher e he attempted to submit pa p e r w o r k s e e k in g “ third-country , safe -asy lum.” His ultimate purpose was to see k “citizenship ulti mately in I taly , the country

of I taly .” The Embassy officia ls declined to assist Simon, so he went to his mother’s home and spent the n ight; his brother drove him to the halfwa y house the next day , May 27. Two U.S. Marsha ls, Deputies J ason Richter and Amanda Seeg er, arr ested him ther e. Richter, with Seeg er following in another vehicle, drove S imon back to the federa l courthouse building for questioning. Be fore the deputies interviewe d Simon at the courthouse, Richter rea d Simon his Miranda rig hts and then rea d him a waiver of those rig hts, which Simon subsequently rea d aloud for himself and signe d. Simon then confe ssed to having called the halfwa y house on May 25 to announce that he was defe cting to Canada and that he w ould not be repor ting ther e as r equire d.

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Simon first arg ues that the district court er re d in deny ing his motion to suppress his confe ssion. He alleg es that the deputies promised him leniency and that their promises preve nt his waiver from being knowing , intelligent, a nd voluntary

. “When revie wing the denial of a motion to suppress, we revie w the district court’s finding s of fac t for clea

r err or and its conclusions of law de novo .” United States v. Terry , 522 F.3d 645, 647 (6th Cir. 2008) (citation and internal quotation marks omitted). We deter mine that a fac tual finding is clea rly err oneous when we have a “def inite and firm conviction that a m istake has been committed.” United States v. Adams , 583 F.3d 457, 463 (6th Cir. 2009) (citation and internal quotation marks omitted). And we g ive g rea t def er en ce to a district court’s cre dibilit y deter minations reg arding witness testimony

. United States v. Hinojosa , 606 F.3d 875, 882 (6th Cir. 2010). What Simon said during questioning may be used ag ainst him if he knowing ly , intelligently , and voluntarily waived his Miranda rig hts. See Miranda v. Arizona , 384 U.S. 436, 444 (1966). I n assessing whether

Simon m ade his wa iver knowing ly and intellige ntly , the rele vant question is not whether t h e criminal suspect [knew] and [understood] ever y possible conseque nce of a waiver of the Fifth Amendment privileg e, but rathe r whether the suspect [knew] that he [could] choose not to talk to law enf orce ment office rs, to talk only

with counsel pre sent, or to discontinue talking any time. Adams , 583 F.3d a t 467 (altera tions in original) ( citation and interna l quotation marks omitted). Apply ing that standard, we conclude that Simon’s claim is not cre dible. Simon specific ally testified that he felt he understood his Mi r a n d a rig hts, that he rea d the waiver provision befor e signing it, and that he understood he was waiving h i s ri gh t s by signing

. But Simon claims that,

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despite the waiver , his c onfession was involuntary beca use of the alleg ed promises of leniency the deputies made. There are three require ments nece ssary for finding that the confe ssion was invol u ntary : The deputies’ activity must have been objectively coer cive, the coer cion i n question must have been suffi cient to overbe ar Simon’s will, and the coer cion must have been the cruc ial motivator in Simon’s decision to confe ss. See United States v. Miggins , 302 F.3d 384, 397 (6th Cir. 2002). We have said that “a promise of lenient trea tment or of immediate rele ase may be so attrac tive as to rende r a confe ssion involuntary .” United States v. W rice , 954 F.2d 406, 411 (6th Cir. 1992) (e mphasis added)

. The dist ri ct co urt found that the matter came down to a question of cre dibilit y ; that the deputies’ testimony – that they had made no promises that Simon would not be prosec uted for esca pe and had not a cted coer cively – was cre dible; tha t Simon had been “tre ated nicely ” by the deputies; and that Simon’s testimony to the contra ry ref lected, at best, Simon’s misunderstanding of whether he could or should be prosec uted for esca pe. After re v i ewing the rec ord, and acc ording those findin gs the defere nce to which they are entitled, we find no err or here. The deputies’ statements to Simo n wer e not objectively coer cive; both deputies denied promising Si mon that he would not b e prosec uted; and the district court was entitled to cre dit the deputies’ testimony ov er S i m o n ’s

asser tions. Even if Simon truly believed he had to sig n the waiver to obtain leniency , that belief – in the absenc e of objectively coer cive action by the deputies – is insufficient. Miggins , 302 F.3d at 397. The district cour

t did not err in deny

ing Simon’s motion to suppress. Simon’s second arg ument is that the evide n ce at t rial was insufficient to support his conviction under 18 U.S.C. § 751(a)

. We re v i ew h is claim by asking “whe ther, after viewing the 4N o . 1 2

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evidenc e in t he lig ht most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). The crime of esca

ping from fede ral custody , 18 U.S.C. § 751(a) , has three elements: “(1) that the def endant e scape d or attempted to e scape ; (2) from the custody of t he Attorney Gene ral or his

or her appointed ag ent

. . . ; and (3) that custody was based on . . . conviction of any offe nse.” United States v. Maney , 226 F.3d 660, 663-64 (6th Cir. 2000). And whi l e p ro o f of intent or purpose is

unnece ssary , the g overnme nt must prove that the esca pee “ knew his actions would re s u l t i n h i s leaving phy sical confine ment without p er m i s s i o n.” United States v. Bailey , 444 U.S. 394, 408 (1980) (empha sis added)

. On appea l, Simon challeng es only the sufficie ncy of evidenc e with respe ct to his mental state. After revie wing the rec ord and Simon’s arg ument, we conclude that there is sufficie nt evidenc e to support Simon’s conviction and, specific al l y , t o show he acted with knowledg e. The furloug h authorization form, which Simon rea d and signe d, indicated that if Simon failed “to rema in within the extended limit s of this confine ment it shall be deeme d an esca pe from the custody of the Attorney Gene ral punishable” under 18 U.S.C. § 751. And Simon admitted that he knew that failure to abide by the terms of the furloug h would constitute esca pe. Simon’s awa

rene ss of the furloug h’s terms, his a ttempt to rea ch Buf falo, his informing the halfwa y house he intended not to repor t, a nd his meeting at t h e C an adian Embassy all work toge ther to demonstrate that he knew “his actions would result in his leaving p h y s i cal confine ment without permission.” Bailey , 444 U.S. at 408. There is sufficient evide nce to support Simon’s conviction. 5N o . 1 2

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For these re asons, we AF F IRM the judg ment of the district cour t.

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