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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, Circuit

Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

A jury 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 months) in prison, to be followed by a three-year term of supervised

release, to commence at the conclusion of a sentence Chamberlain is currently serving

for a separate crime. Chamberlain appeals his conviction and sentence on a number

of
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grounds, including the admission of statements he made to state prison officials who

failed to precede their questioning with a Miranda warning. We believe that

Chamberlain’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.

While serving a prison sentence for criminal sexual conduct, Chamberlain

worked at Insight, a nonprofit corporation operating in the Minnesota state prison

facilities. Inmates in the Insight program did telemarketing and computer

programming work on contracts Insight made with various companies. The money

Insight earned on the contracts was used to fund college programs for the inmates in

the program. (Trial Tr. 49-50.) Chamberlain had his own office within the Insight

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 lists of children’s names and addresses,

and an optical disk which they suspected contained child pornography, in

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 statements

Chamberlain sought to suppress on Miranda grounds were made during two interviews

in which Chamberlain was questioned by investigators. The Miranda issue turns on

the circumstances 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 interviews took place in the Insight offices, inside the prison. Special

investigator Mark Freer conducted Chamberlain’s first interview. Because the Insight
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offices were secured during the investigation, any inmate brought in for an interview

had to be escorted to the offices. (Pretrial Mot. Hr’g Tr. 111.) During the pretrial

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 offices

himself or had another officer bring them down. Freer would then usually meet the

officer halfway. (Pretrial Mot. Hr’g Tr. 95.) The interview took place in an office

located near Chamberlain’s own office. The door to the room was closed but

unlocked. Chamberlain was not restrained in any way, and Freer displayed no

weapons. (Pretrial Mot. Hr’g Tr. 95-97.) At no time during this interview, or the

interview which followed later, did any investigator give Chamberlain a Miranda

warning.

Towards the end of the interview, Freer asked Chamberlain about the child lists

found in Chamberlain’s office. Chamberlain denied any knowledge of the lists. (Trial

Tr. 138.) Later the same day, however, in a second interview conducted by Steven

Ayers, another special investigator employed by the Department of Corrections,

Chamberlain admitted that he lied to Freer in the earlier interview and admitted

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 the

Stillwater Correctional Facility. The Stillwater facility is a higher-level security

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.) 

Chamberlain filed a pretrial motion to suppress the statements he made

regarding the child lists. A magistrate judge, believing that Chamberlain was not “in

custody” for Miranda purposes, recommended denying the motion, and the District

Court adopted the recommendation. Tapes of Chamberlain’s interviews were played

for the jury at Chamberlain’s trial, including portions of the interviews related to the

child lists. (Trial Tr. 135, 159.) Additionally, the government discussed the lists in its

closing argument. (Trial Tr. 894-95.) Chamberlain argues on appeal that the

statements should not have
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been admitted into evidence because the statements were made during a custodial

interrogation not preceded by a Miranda warning.

II.

We review the District Court’s findings concerning custody under a clearly

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 the

entire record we are left with a firm and definite conviction that a mistake has been

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 custodial

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 any

significant way.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). An individual

already in prison on another matter at the time of questioning is not necessarily,

however, “in custody” for Miranda purposes. The mere fact of incarceration does not

ipso facto render an interrogation custodial. Leviston v. Black, 843 F.2d 302, 304 (8th

Cir. 1988) (citing Flittie v. Solem, 775 F.2d 933, 944 (8 Cir. 1985) (en banc)). A

th

number of other circuits have a similar rule. See United States v. Menzer, 29 F.3d

1223, 1231 (7 Cir. 1994) (citing cases). This does not mean, however, that the fact th

of incarceration is irrelevant. “The relevant inquiry is whether a reasonable man in the

suspect’s position would have understood himself to be in custody.” Leviston, 843

F.2d at 304 (citing Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). That inquiry

must include consideration of the fact of incarceration. The Supreme Court has

indicated that when the individual being questioned is already in prison, “[q]uestioning

by captors, who appear to control the suspect’s fate, may create mutually reinforcing
The Court in Perkins held that undercover questioning of an inmate did not

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require a Miranda warning because the suspect did not know he was talking with a

government agent. Perkins, 496 U.S. at 297. Chamberlain, however, knew he was

talking with prison officials.

Leviston was given a Miranda warning, but only after he made a “potentially

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incriminating . . . statement.” Leviston, 843 F.2d at 303.

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pressures that . . . will weaken the suspect’s will.” Illinois v. Perkins, 496 U.S. 292,

297 (1990).1

Leviston established that incarceration does not necessarily render an

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 the

interviews, he was incarcerated on an unrelated matter. During Leviston’s

conversations with the police, and prior to any Miranda warning, Leviston made

statements which were later introduced at his trial for the robbery. The District Court

found that Leviston initiated the interviews with the police, voluntarily went to the

interview room, was free to end the conversations at any time, and was allowed to

leave 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 adhere to the rule set forth in Leviston that a Miranda warning is not

automatically required when questioning an inmate. Chamberlain’s situation, however,

differs from Leviston’s because Chamberlain did not initiate the conversations with

Freer and Ayers. We therefore proceed to examine the other relevant circumstances.

III.

In determining whether Freer’s and Ayers’s conversations with Chamberlain

amounted to custodial interrogation, we are “concerned with the suspect’s subjective
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belief that ‘his freedom of action is curtailed to a degree associated with formal arrest’

and whether that belief is objectively reasonable under the circumstances.” Griffin,

922 F.2d at 1349 (citing Berkemer, 468 U.S. at 439, quoting California v. Beheler, 463

U.S. 1121, 1125 (1983)). A determination of how a reasonable person would have felt

in this situation – 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) 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.
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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 this list exhaustive. See id. The custody

issue ultimately “focuses upon the totality of the circumstances.” Jenner v. Smith, 982

F.2d 329, 335 (8 Cir. 1993). th

The District Court apparently adopted the magistrate judge’s recommended

finding that “[Chamberlain] was not brought to the interview room under force, or

escort.” (Report and Recommendation 27.) This finding is not supported by the

record. Although it may be unclear exactly how Chamberlain arrived for, or was

brought to, the interview, there is no doubt that someone did escort Chamberlain to the

interview.

Both Freer and Ayers testified at the pretrial motion hearing that they did not

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 down. When the officer brought them down, “most of the time” Freer would

meet the officer halfway. (Pretrial Mot. Hr’g Tr. 95.) Freer further testified, on crossexamination, that the area in which they conducted the interviews was a “secure area”

and anybody entering the area “be it civilian or an inmate, would be escorted.”

(Pretrial Mot. Hr’g Tr. 111.) Ayers testified that he himself did not go get

Chamberlain, but that Chamberlain was “summoned” to the interview. (Pretrial Mot.

Hr’g Tr. 142-43.) Chamberlain may have had the freedom to move around within

some areas of the prison, but Freer and Ayers conducted the interviews in a secure

area, which Chamberlain could not have entered on his own. (Pretrial Mot. Hr’g Tr.

111, 137.) There is no indication that any inmate interviewed by Freer or Ayers during

the Insight investigation walked to the interview room of his own accord, without

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
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Chamberlain that the questioning was voluntary or that he was free to leave the

interview at any time. In fact, if Chamberlain had refused to appear for the interview

or had left the interview without permission, he would have violated prison rules.

During Ayers’s cross-examination at the pretrial motion hearing, Ayers testified

regarding violation of prison rules:

Mr. Kushner (for the defense): And when someone who

works 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 corrections 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 he

did not answer the questions Freer and Ayers asked him during the interviews, he

would have been in violation of prison rules. And Chamberlain could reasonably have

construed his situation as one in which he was “deprived of his freedom of action

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 we

construe the record, prison guards escorted Chamberlain to the interview. The

interview was conducted by DOC investigators. Additionally, at the end of

questioning, Chamberlain was transferred from the medium-security facility to a closecustody facility, and then to a segregation unit. (Pretrial Mot. Hr’g Tr. 140-42.)

Although Chamberlain was not “placed under arrest” (he was already under arrest), his
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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 violated

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 charged with possession of, and conspiracy to distribute, child pornography.

Chamberlain admitted, in the statements in question, that the lists, which contained

names, addresses, and descriptions of children in the Minnesota area, belonged to him.

The government introduced the lists during trial and discussed the lists, in some detail,

in its closing argument. (Trial Tr. 370-76, 894-95.) Other evidence against

Chamberlain was also introduced at trial – evidence that Chamberlain possessed child

pornography (Trial Tr. 277) – but Chamberlain’s statements about the lists identified

the lists as his. Without Chamberlain’s statements, the testimony and closing

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 his

arguments relate to evidentiary issues: first, that the child lists were inadmissable

under Rule 404(b) of the Federal Rules of Evidence because the lists were not relevant

to the alleged child pornography offenses; second, that there was insufficient evidence

to convict him of conspiracy; and third, that prison disciplinary hearing findings were

wrongly excluded. Chamberlain tried to introduce findings from the prison

disciplinary hearings which resulted from the Insight investigation. The prison

disciplinary committee found Chamberlain not guilty, but the District Court did not

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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 not

allow Chamberlain to ask Couture about child sex abuse fantasy stories on the hard

drive of Couture’s computer. Finally, Chamberlain argues that the District Court erred

in applying upward adjustments to his offense levels under the federal Sentencing

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 warning

prior to a custodial interrogation, the statements made during that interrogation

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.