1

The Honorable Joseph F. Bataillon, Chief Judge, United States District Court

for the District of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 09-2713

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Parish Swift, *

*

Appellant. *

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Submitted: March 9, 2010

Filed: October 25, 2010

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Before SMITH, BENTON, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Parish Swift appeals his conviction, following a two-day jury trial, for being a

felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Prior to trial, Swift moved to suppress statements he made while in custody, and

during trial, he moved for a mistrial. The district court1

 denied both motions and, after

the jury found Swift guilty, sentenced him to 60 months imprisonment. In this appeal,

Swift challenges the denials of his motions. We affirm. 
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I.

On March 23, 2008, while responding to a “shots fired call,” Omaha police

Officers Chris Duffek and Craig Wylie observed a green Chevrolet Suburban

matching the description of the suspect vehicle described in the call. As the officers

turned their patrol car around, they saw the Suburban pull into the driveway of a

nearby residence and observed six occupants exit the vehicle. The officers were able

to detain four of the occupants, but two of the occupants refused officers’ orders to

stop and, instead, entered the residence. Approximately five minutes later, when the

two occupants—Parish Swift and Anthony Harlan—exited the residence, the officers

took them into custody.

Officers received permission to search the residence from the homeowner.

During the search, the officers recovered two handguns: a .45 caliber pistol and a .22

caliber revolver. The firearms were found in the curtilage of the residence—one was

located in a tire that was leaning against the house and the other from a trash can that

was within a few feet of the house. Five .45 caliber shell casings were recovered in

the location of the “shots fired call”, and it was later determined that the casings were

from the same .45 caliber pistol recovered by police during their search of the

residence. 

Swift and Harlan were transported to police headquarters and placed in an

interrogation room together. An officer told them that a gunshot residue test would

be conducted and that someone would be in to talk with them. The room was

equipped with video and audio monitoring equipment, and officers, including

Sergeant Gerald Baggett, monitored the conversation between Swift and Harlan. At

the suppression hearing, Sergeant Baggett testified that Swift asked Harlan “if a gun

was used or shot, would it leave gun prints.” (Suppression Hr’g Tr. 44.) Sergeant

Baggett understood the “gun prints” question to refer to gunshot residue. Swift also

made statements to Harlan which indicated Swift was aware that officers were able
2

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

3

The Honorable F. A. Gossett, United States Magistrate Judge for the District

of Nebraska. 

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to monitor them while they were in the room and he believed officers were monitoring

their conversation.

After approximately 18 minutes, Officer Duffek entered the room to advise both

Swift and Harlan of their Miranda2

 rights. Officer Duffek did so by reading the

Omaha Police Department’s Rights Advisory Form to Swift and Harlan. As he began

reading the form, Swift, demonstrating a familiarity with the form, stated, “That last

question, no.” The final question on the form is, “Knowing your rights in this matter

are you willing to talk to me now?” Swift then asked Officer Duffek why he and

Harlan were being detained, and Officer Duffek showed him photos of the two

firearms found at the residence. Officer Duffek then left the interrogation room and

went into the monitoring room. 

After Officer Duffek left, Swift commented to Harlan that he had touched the

gun, but he hoped his fingerprints would not appear on the gun. When Officer Duffek

returned, he again read the Miranda form to Swift and Harlan. Swift agreed at that

time to give a statement to the police, but later he refused to cooperate and provided

no additional information. 

Swift moved to suppress the statements he made to Harlan while at the police

station. A magistrate judge3

 issued a Report and Recommendation (R&R),

recommending that the district court deny the suppression motion as to Swift’s first

statement made prior to Officer Duffek’s presentation of the Miranda rights, but grant

the motion as to the statement made after Swift indicated that he did not wish to talk

to the officers. After both Swift and the government filed objections to the R&R, the

district court entered an order denying the suppression motion as to both statements.
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Swift proceeded to trial. During the closing argument, Swift’s attorney

questioned why the government had failed to present the tape recording made while

Swift was in the interrogation room, arguing that it was the best evidence of what

occurred. In rebuttal, the government responded:

[Defense counsel] also said it’s not his job to put forth evidence

to you, how come we didn’t present the interview, how come you don’t

get to look at it for yourself.

It’s [defense counsel’s] job, you bet, to protect that man sitting

next to him. It’s [defense counsel’s] job to make sure -- 

(Trial Tr. 269.) At that point, defense counsel objected to the argument on the basis

that the prosecution was attempting to shift the burden of proof to the defendant. In

a side bar discussion, defense counsel renewed his objection, and he moved for a

mistrial or alternatively requested that the jury be instructed that the burden of proof

is not on the defendant. The court sustained the objection and took the mistrial motion

under consideration. After the side bar conference, the court instructed the jury as

follows:

Ladies and gentlemen, the difficulty is that the defendant never

has an obligation under the law to present any evidence, and the burden

never shifts to the defendant.

And I believe what [the government] is trying to argue is that the

testimony of the witness concerning statements in the interview room

have been unrebutted, and there is a difference between that and the

burden shifting to the defendant, because the burden never shifts to the

defendant. 

You have to decide based on your recollection of the testimony[,]

the quality of the testimony[,] and the credibility to be given to that

testimony, but the burden never shifts to the defendant to present counter

testimony.

(Trial Tr. 271-72.) 
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After the jury returned a guilty verdict, the district court overruled the mistrial

motion on the basis of the curative instruction given during the closing argument. At

sentencing, the district court imposed a term of 60 months imprisonment. 

II.

Swift raises two grounds on appeal: (1) that the district court erred in denying

his motion to suppress statements Swift made while being held in the interrogation

room and (2) that the district court erred in denying his motion for mistrial based on

the statement made by the government during closing argument. 

A.

This court reviews legal determinations in the denial of a motion to suppress de

novo but reviews the underlying factual determinations for clear error. United States

v. Coleman, 349 F.3d 1077, 1083 (8th Cir. 2003). Miranda rights are triggered only

when a defendant is being interrogated in police custody. United States v. Hatten, 68

F.3d 257, 261 (8th Cir. 1995). “We have repeatedly held that ‘[a] voluntary statement

made by a suspect, not in response to interrogation, is not barred by the Fifth

Amendment and is admissible with or without the giving of Miranda warnings.’” Id.

at 262 (quoting Rhode Island v. Innis, 446 U.S. 291, 299 (1980)). “Interrogation”

under Miranda is “express questioning,” or “words or actions . . . that the police

should know are reasonably likely to elicit an incriminating response.” Innis, 446

U.S. at 301. 

We recently decided a case with analogous facts. In United States v.

Hernandez-Mendoza, 600 F.3d 971 (8th Cir. 2010), a highway patrol trooper pulled

over a car being driven by Hernandez-Mendoza for speeding. Id. at 974. After a drug

dog alerted to the presence of narcotics, the trooper was able to locate

methamphetamine and cocaine hidden in the car. Id. A second trooper arrived to
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transport Hernandez-Mendoza and his passenger, Martinez, to the South Dakota

Highway Patrol Office. Id. Both suspects were placed in the second trooper’s patrol

car which, unbeknownst to the suspects, was equipped with recording equipment

which the trooper had activated. Id. At one point, the trooper left the two suspects

alone in the vehicle and the recording equipment captured a conversation between

them. Id. Martinez sought to suppress the statements he made during the recorded

conversation with Hernandez-Mendoza. Id. at 974-75. We affirmed the district

court’s denial of the suppression motion, explaining:

[The trooper’s] act of leaving the appellants alone in his vehicle, with a

recording device activated, was not the functional equivalent of express

questioning. [The trooper] may have expected that the two men would

talk to each other if left alone, but an expectation of voluntary statements

does not amount to deliberate elicitation of an incriminating response.

“Officers do not interrogate a suspect simply by hoping that he will

incriminate himself.” Arizona v. Mauro, 481 U.S. 520, 529 (1987).

[The trooper] did not question the suspects or engage in psychological

ploys of the sort characterized as interrogation by the Supreme Court in

Innis. See 446 U.S. at 299. He had legitimate security reasons for

recording the sights and sounds within his vehicle, see Mauro, 481 U.S.

at 528, and the appellants had no reasonable expectation of privacy in a

marked patrol car, which is “owned and operated by the state for the

express purpose of ferreting out crime.” United States v. Clark, 22 F.3d

799, 801 (8th Cir. 1994). 

Hernandez-Mendoza, 600 F.3d at 977. 

The reasoning of Hernandez-Mendoza is controlling here. Even though officers

may have hoped that Swift or Harlan would make incriminating statements when left

alone, that action was not express questioning. Nor does that action rise to the

“functional equivalent” of a police interrogation, as that action was unlikely to

“‘subjugate the individual to the will of his examiner’ and thereby undermine the

privilege against compulsory self-incrimination.” See Innis, 446 U.S. at 299, 301
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(quoting Miranda, 384 U.S. at 450). Further, Swift had no reasonable expectation of

privacy while being detained in the interrogation room at the police station, and Swift

even recognized the likelihood that officers were watching him and Harlan. We

therefore affirm the district court’s denial of Swift’s motion to suppress.

B.

Swift also appeals the district court’s denial of his mistrial motion made in

response to the prosecutor’s comments in closing argument. “To obtain a reversal for

prosecutorial misconduct, the defendant must show that (1) the prosecutor’s remarks

were improper, and (2) such remarks prejudiced the defendant’s rights in obtaining

a fair trial.” United States v. King, 36 F.3d 728, 733 (8th Cir. 1994). “If we find the

comments were improper, we consider the cumulative effect of the improprieties, the

strength of the evidence against the defendant, and whether the district court took any

curative action.” United States v. Milk, 447 F.3d 593, 602 (8th Cir. 2006). We

review the denial of a mistrial based on prosecutorial misconduct for an abuse of

discretion. United States v. Conroy, 424 F.3d 833, 840 (8th Cir. 2005). 

Swift argues that the prosecutor, through comments in closing argument,

attempted to shift the burden of proof to Swift. If true, such remarks would be

improper. See United States v. Burns, 432 F.3d 856, 861 (8th Cir. 2005) (“[T]he

prosecution ‘may not improperly suggest that the defendant has the burden to produce

evidence.’” (quoting United States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996)).

Although the government disagrees that its comments were intended to shift the

burden to Swift, the district court had no difficulty in sustaining Swift’s objections to

the comments. The government argues in the alternative that even if its comments

were improper, Swift’s right to obtain a fair trial was not prejudiced. 

Even if the prosecutor’s comments suggested that Swift had a burden to present

certain evidence, which would have been improper, the comments were not
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prejudicial. The comments came after two days of trial testimony, and the district

court immediately instructed the jury that the burden of proof remained with the

government and that the prosecutor’s comments were an attempt “to argue . . . that the

testimony of the witness concerning statements in the interview room have been

unrebutted.” (Trial Tr. 272.) Therefore, even if the comments were improper, Swift

was not deprived of a fair trial. See Conroy, 424 F.3d at 840. 

III.

Accordingly, we affirm. 

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