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## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1564MN

_____________ United States of America, * * Appellee, * * On Appeal from the United v. * States District Court * for the District of * Minnesota. George Gerald Chamberlain, * * Appellant. *

___________ Submitted: October 20, 1998 Filed: December 24, 1998

___________ Before BOWMAN, Chief Judge, BRIGHT and RICHARD S. ARNOLD, Circui t Judges.

___________ RICHARD S. ARNOLD, Circuit Judge.

Ajury convicted George Gerald Chamberlain of conspiracy to distribute child pornography, in violation of 18 U.S.C. § 371, and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Chamberlain was sentenced to seven years and three months (87 month s) in prison, to be followed by a three-year term of supervised release, to commence at the concl usion of a sentence Chamberlain is currently serving for a separate crime. Chamberlain appeals his conviction and sentence on a numbe r of-2-

grounds, including the admission of statements he made to state prison officials who failed to p recede their questioning with a Miranda warning. We believe tha t Chamber lain’s statements were made while he was in custody for Miranda purposes. We therefore reverse on the Miranda issue and remand for a new trial.

I.

Wh ile serving a prison sentence for criminal sexual conduct, Chamberlai n worked at Insight, a nonprofit corporation operating in the Minnesota state priso n facilities. Inmates in the Insight program did telemarketing and compute r program ming work on contracts Insight made with various companies. The mone y Insight earned on the contracts was used to fund college programs for the inmates in the prog ram. (Trial Tr. 49-50.) Chamberlain had his own office within the Insigh t offices in the prison, as well as his own computer. (Trial Tr. 41.) In November 1994,
a news report alleging financial misconduct within the Insight program resulted in an administrative investigation of the program. During a search of the Insight offices , Department of Corrections investigators found l ists of children’s names and addresses,
an d an optical disk which they suspected contained child pornography, i n Chamberlain’s office. (Trial Tr. 45-46.)

As part of the investigation, investigators interviewed all of the prison inmates taking part in the program, including Chamberlain. (Trial Tr. 43.) The statement s Chamberlain sought to suppress on Miranda grounds w ere made during two interviews in which Chamberlain was questioned by investigators. The Miranda issue turns o n the circu mstances of these interviews – on whether Chamberlain was “in custody” as defined by Miranda

and its progeny. We therefore state in some detail the facts related to the interviews, culled from both the pretrial motion hearing and the trial itself.

The intervi ews took place in the Insight offices, inside the prison. Specia l investigator Mark Freer conducted Chamberlain’s first interview. Because the Insight-3-

offices were secured during the investigation, any inmate brought in for an interview had to b e escorted to the offices. (Pretrial Mot. Hr’g Tr. 111.) During the pretria l motion hearing Freer testified that although he did not recall how Chamberlain arrived for his interview, Freer generally either brought the inmates down to the office s himself o r had another officer bring them down. Freer would then usually meet th e offic er halfway. (Pretrial Mot. Hr’g Tr. 95.) The interview took place in an offic e located near Chamberlain’s own office. The door to the room was closed bu t unlocked. Chamberlain was not restrained in any way, and Freer displayed n o weapons. ( Pretrial Mot. Hr’g Tr. 95-97.) At no time during this interview, or th e interview which followed later, did any investigator give Chamberlain a Mirand a warning.
Towards the end of the interview, Freer asked Chamberlain about the child lists found in Chamberlain’s office. Chambe rlain denied any knowledge of the lists. (Trial Tr. 138 .) Later the same day, however, in a second interview conducted by Steve n Ayers, another special investigator employed by the Department of Corrections , Chamberl ainadmitted that he lied to Freer in the earlier interview and admitte d knowledge of the lists. (Trial Tr. 155.) After the interview, Ayers told Chamberlain that he was going to be placed in administrative segregation and transferred to th e Stillw ater Correctional Facility. The Stillwater facility is a higher-level securit y facility than the Lino Lakes facility, where Chamberlain was then imprisoned. (Trial Tr. 21.) Chamberlain then indicated that he wanted to contact an attorney and was no longer willing to conduct further interviews. (Pretrial Mot. Hr’g Tr. 125.)

Chambe rlainfiled a pretrial motion to suppress the statements he mad e regarding the child lists. A magistrate judge, believing that Chamberlain was not “in custody ” for Miranda

purposes, recommended denying the motion, and the Distric t Court adop ted the recommendation. Tapes of Chamberlain’s interviews were played for the jury at Chamberlain’s trial, including portions of the interviews related to th e child lists. (Trial Tr. 135, 159.) Ad ditionally, the government discussed the lists in its closi ng argument. (Trial Tr. 894-95.) Chamberlain argues on appeal that th e statements should not have-4-

been admitted into evidence because the statements were made during a custodia l interrogation not preceded by a Miranda warning.

II.

We review the District Court’s findings concerning custody under a clearl y erroneous standard. See United States v. Griffin , 922 F.2d 1343, 1347 (8 Cir. 1990). th And we will affirm that decision “unless the decision . . . is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or in light of th e entire re cord we are left with a firm and definite conviction that a mistake has bee n made.” Id . at 1348 (quoting United States v. Jorgensen , 871 F.2d 725, 728 (8 Cir

. th 1989)). We believe, in this case, that a mistake has been made.

A Miranda

warning must precede any custodial interrogation. A custodia l interrogation involves “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in an y signif icant way.” Miranda v. Arizona , 384 U.S. 436, 444 (1966). An individua l alr eady in prison on another matter at the time of questioning is not necessarily , however, “in custody” for Mira nda purposes. The mere fact of incarceration does not ipso facto render an interrogati on custodial. Leviston v. Black , 843 F.2d 302, 304 (8 th Cir

. 1988) (citing Flittie v. Solem , 775 F.2d 933, 944 (8 Cir. 1985) (en banc)). A th numbe r of other circuits have a similar rule. See United States v. Menzer , 29 F.3 d 1223, 1231 (7 Cir. 1994) (citing cases). This does not mean, however, that the fact

th of incarceration is irrelevant. “The relevan t inquiry is whether a reasonable man in the suspect’s position would have understood himself to be in custody.” Leviston , 84 3 F.2d at 304 (citing Berkemer v. McCarty , 468 U.S. 420, 442 (1984)). That inquir y must include consideration of the fact of incarceration. The Supreme Court ha s indicated that when the individual being quest ioned is already in prison, “[q]uestioning by captors, who appear to control the suspect’s fate, may create mutually reinforcingThe Court in Perkins held that undercover questioning of an inmate did no t 1 require a Miranda

warning because the suspect did not know he was talking with a gover nment

agent. Perkins , 496 U.S. at 297. Chamberlain, however, knew he wa s talking with prison officials. Leviston was given a Miranda warning, but only after he made a “potentiall y 2 incriminating . . . statement.” Leviston , 843 F.2d at 303. -5- pressures that . . . will weaken the suspect’s will.” Illinois v. Perkins , 496 U.S. 292, 297 (1990). 1

Levi ston established that incarceration does not necessarily render a n interrogation custodial. But in that case, Leviston asked to speak to the police about
a robbery for which he was later convicted. At the time Leviston initiated th e int erviews, he was incarcerated on an unrelated matter. During Leviston’ s conv ersations with the police, and prior to any Miranda warning, Leviston mad e statements which were l ater introduced at his trial for the robbery. The District Court found that Leviston initiated the interviews with the police, voluntarily went to th e interview room, was free to end the conversations at any time, and was allowed t o le ave upon request. Leviston was therefore not “in custody” during questioning, and
no Miranda

warning was required. Leviston , 843 F.2d at 303-04. 2

We ad here to the rule set forth in Leviston that a Miranda warning is no t automatically required when questioning an inmate. Chambe rlain’s situation, however, dif fers from Leviston’s because Chamberlain did not initiate the conversations with Freer a nd Ayers. We therefore proceed to examine the other relevant circumstances.

III.

In de termining whether Freer’s and Ayers’s conversations with Chamberlai n amounte d to custodial interrogation, we are “concerned with the suspect’s subjective-6-

belief that ‘his freedom of action is curtailed to a degree associated with formal arrest’ and w hether that belief is objectively reasonable under the circumstances.” Griffin , 922 F.2d at 1349 (citing Berkemer , 468 U.S. at 439, quotin g California v. Beheler , 463 U.S. 1121, 1125 (1983)). A determination of how a reas onable person would have felt in this situa

tion – whether a reasonable person would have thought he was in custody – requires close consideration both of how Chamberlain got to the interview room and of the atmosphere of the interviews once Chamberlain arrived for, and during , questioning.

The six factor analysis set out in United States v. Griffin provides guidance in making this determination:

(1) whet her the suspect was informed at the time of questionin g that the questioning was voluntary, that the suspect was free t o lea ve or request the officers to do so, or that the suspect was no t considered under arrest; (2) whether the suspect possessed unrestrained freedom o f movement during questioning; (3) whether the suspect initiated contact with authorities o r voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems wer e employed during questioning; (5) whether the atmosphere of the questioning was polic e dominated; or, (6) whether the suspect was pla ced under arrest at the termination of the questioning.-7-

Griffin , 922 F.2d at 1349. All six of these factors need not be present for a finding of custody requiring a Miranda warning. Nor is th is list exhaustive. See id . The custody issue ultimately “focuses upon the totality o f the circumstances.” Jenner v. Smith , 982 F.2d 329, 335 (8 Cir. 1993). th

The District Court apparently adopted the magistrate judge’s recommende d fi nding that “[Chamberlain] was not brought to the interview room under force, o r escort.” (Report and Recommendation 27.) This finding is not supported by th e record. A lthough it may be unclear exactly how Chamberlain arrived for, or wa s brought to, the interview, there is no doubt that someone did escort Chamberlain to the interview.

Both F reer and Ayers testified at the pretrial motion hearing that they did no t remember how Chamberlain got to the interview room. Freer testified that he brought many of the inmates down to the office for interviews himself or had an officer bring them d own. When the officer brought them down, “most of the time” Freer woul d meet the officer halfway. (Pretrial Mot. Hr’g Tr. 95.) Freer further testified, on crossexamination, that the area in whi ch they conducted the interviews was a “secure area” and any body entering the area “be it civilian or an inmate, would be escorted. ” (Pr etrial Mot. Hr’g Tr. 111.) Ayers testified that he himself did not go ge t Chamberlain, b ut that Chamberlain was “summoned” to the interview. (Pretrial Mot. Hr’g Tr. 142 -43.) Chamberlain may have had the freedom to move around withi n some a reas of the prison, but Freer and Ayers conducted the interviews in a secur e area, which Chamberlain could not have entered on his own. (Pretrial Mot. Hr’g Tr. 111, 137.) There is no indication that any inmate inter viewed by Freer or Ayers during the I nsight investigation walked to the interview room of his own accord, withou t escort from one of the investigators or a prison guard. Other circumstances also suggest that Chamberlain was the subject of a custodial interrogation. At no time did Freer, Ayers, or any other prison official, tell-8-

Chamberlain that the questioning was voluntary or that he was free to leave th e intervi ew at any time. In fact, if Chamberlain had refused to appear for the interview
or had lef

t the interview without permission, he would have violated prison rules

. Durin g Ayers’s cross-examination at the pretrial motion hearing, Ayers testifie d regarding violation of prison rules:

Mr. Kushner (for the defense): And when someone wh o work s for the Department of Corrections asks an inmate to do something then they have to do it, right? Ayers: Yes. Q: If they don’t do something that a correcti ons staff person or official tells them to do that could be a rule violation , right, it’s called disobeying a direct order?
A: Correct.
(Pretrial Mot. Hr’g Tr. 137.) Chamberlain could reasonably have believed that if h e did not a nswer the questions Freer and Ayers asked him during the interviews, h e would have been in violation of prison ru les. And Chamberlain could reasonably have constru ed his situation as one in which he was “deprived of his freedom of actio n in . . . [a] significant way.” Miranda , 384 U.S. at 444. Chamberlain was not free to leave, or, at least, not free to leave without risking the consequences.

In addition , the atmosphere of the questioning was police dominated. As w e constru e the record, prison guards escorted Chamberlain to the interview. Th e int erview was conducted by DOC investigators. Additionally, at the end o f questioning, Chamberlain was transferred fromthe medium-security facility to a closecustod y facility, and then to a segregation unit. (Pretrial Mot. Hr’g Tr. 140-42. ) Although Chamberlain was not “placed under arrest” (he w as already under arrest), his-9-

transfer to a more confined situation was clearly the result of the investigation

. Overall, the facts indicate to us that Chamberlain was “in custody” during questioning. The failure to precede the questioning with a Miranda warning therefore violate d Chamberlain’s Fifth Amendment rights, and his statements during the interview should have been excluded from evidence. The government argues that even if the admission of Chamberlain’s statements about the child lists was error, that error was harmless. We do not agree. Chamberlain
was char ged with possession of, and conspiracy to distribute, child pornography

. Chamberlai n

admitted, in the statements in question, that the lists, which containe d names, addresses, and descriptions of children i n the Minnesota area, belonged to him. The government introduced the lists during trial and discussed the lists, in some detail, in i ts closing argument. (Trial Tr. 370-76, 894-95.) Other evidence agains t Chamberlain was also introdu ced at trial – evidence that Chamberlain possessed child pornography (Trial Tr. 277) – but Chamberlain’s statements about the lists identified the l ists as his. Without Chamberlain’s statements, the testimony and closin g arguments the jury heard related to the lists would have been far less compelling. The admission of Chamberlain’s statements regarding his knowledge of the child lists , therefore, can not be considered harmless error.

IV.
Chamberlain raises a number of other issues in his appeal. Three of hi s arguments relate to evidentiary issues: first, that the child lists were inadmissabl e under Rule 404(b) of the Federal Rules of Eviden ce because the lists were not relevant to the alleged child pornography of fenses; second, that there was insufficient evidence to convict him of conspiracy; and third, that prison disciplinary hearing findings were
wro ngly excluded. Chamberlain tried to introduce findings from the priso n di sciplinary hearings which resulted from the Insight investigation. The priso n discipli nary committee found Chamberlain not guilty, but the District Court did no t allow-10-

Chamberlain to introduce the findings. Chamberlain also argues that he did not have sufficient opportunity

to confront and cross-examine William Couture, an inmate who worked with Chamberlain at Insight and a government witness. The Court did no t allow Chamberlain to ask Couture about child sex abuse fantasy stories on the har d drive of Couture’s computer. Finally, Chamberla in argues that the District Court erred in appl ying upward adjustments to his offense levels under the federal Sentencin g Guidelines.

The District Court did not err on any of these issues, and we therefore reverse only on the Miranda

issue. Because Chamberlain was not given a Miranda warnin g prior to a custodial interrogation, the statements made during that interrogatio n regarding the child lists should not have been admitted at trial.

Reversed and remanded for a new trial. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.