* Pursuant to 5th Cir. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-30581

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JO LYNN KOONCE,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Western District of Louisiana

No. 97-CR-20087-ALL

 

April 28, 1999

Before HIGGINBOTHAM, JONES, AND DENNIS, Circuit Judges.

PER CURIAM:*

Jo Lynn Koonce, the owner and manager of Louisiana Drug

Screening, was tried and convicted for eleven counts of fraud and

swindles under 18 U.S.C. § 1341. Koonce had contracted with

various businesses to collect urine samples, send them to

laboratories for testing, and reportq

the results. Beginning about September 1995, Koonce stopped

sending the urine samples to laboratories for testing. Instead,
2

prosecutors charged, the samples were disposed of and fictitious

test result reports were sent to the businesses, along with

fraudulent billing invoices. The indictment charged that between

September 1995 and July 1996, Koonce caused total false invoices of

$51,212.

In pretrial proceedings, Koonce sought to suppress inculpatory

statements allegedly made to FBI agents on May 20 and 24, 1997.

She alleged that she was subject to custodial interrogation during

a meeting with the agents, but was not advised of her

constitutional rights. One of the FBI agents, Randal Kevin Hicks,

testified that Koonce spoke to them voluntarily on May 20, and that

she was informed correctly that she would not be arrested during or

after the interview. On May 24, according to Hicks, he served a

grand jury subpoena for documents along with another agent and

spoke to her again. 

Koonce testified that during the first interview, Hicks told

her that if she did not cooperate, she would be brought to his

office and questioned there. She testified that she thought Hicks

was pressuring her to agree to the interview. In addition, she

said she asked three times whether she needed an attorney, and that

Hicks replied that he just wanted to ask her some questions to

clear some things up. She also testified that she believed she was

being detained, because when she stood up to retrieve a file, Hicks

initially blocked her exit, and then followed her as she retrieved

it. The events on May 24, as Koonce recounts them, were similar,
3

though Hicks recommended that she obtain an attorney at the

conclusion of the interview.

The magistrate judge recommended that the motion to suppress

be denied, finding Koonce’s testimony that the agents threatened to

take her to the FBI office if she did not cooperate not credible.

She also found that there was probable cause to arrest Konnce, but

that the officers had no subjective intent to detain her. A

reasonable person, the magistrate found, would not have believed

that she was under arrest. The district court adopted the

magistrate court’s findings and conclusions.

Two of Koonce’s grounds for appeal are based on events at

trial. First, one witness testified that she saw Koonce falsify a

lab report in January 1997. The defense objected, arguing that

this conduct was outside the scope of the indictment and was

impermissible under Federal Rule of Evidence 404(b). Second, a

witness testified that Koonce told her that Mary Lee Citizen, an

employee of Koonce’s, acted “like a nigger.” The defense moved for

a mistrial, but the motion was denied, and the court gave a

limiting instruction.

Koonce also objected to the Presentence Report’s calculation

of the amount of loss as $51,230. She asserted that the amount of

loss was only approximately $30,000. The district court overruled

the objection and sentenced her to 21 months of imprisonment and 36

months of supervised release, and ordered her to pay $51,230 in

restitution and a fine of $1,100. She timely appealed.

I
4

“A suspect is . . . ‘in custody’ for Miranda purposes when

placed under formal arrest or when a reasonable person in the

suspect’s position would have understood the situation to

constitute a restraint on freedom of movement of the degree which

the law associates with formal arrest.” United States v.

Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc). Koonce

argues that based on the court’s findings, including that Hicks had

probable cause to arrest her and that Hicks stood between Koonce

and the door when she was about to retrieve a file, a reasonable

person would infer that she was within the direct custody and

control of the agents. 

An important consideration in determining whether there was

custodial interrogation is whether the suspect was told that she

was not under arrest and was free to leave. See United States v.

Collins, 972 F.2d 1385, 1405 (5th Cir. 1992). An interview of a

suspect by law enforcement officers inevitably will have coercive

aspects because officers are part of a system that may ultimately

charge the suspect with a crime, but Miranda warnings are required

only when the coercive nature of the situation rises to the level

of restricting a person’s freedom such that they are held in

custody. See id. at 1406. 

Based on the totality of the circumstances, the district court

did not err in concluding that a reasonable person would not have

deemed the interviews with the FBI to constitute a restriction on

movement equivalent to being taken into custody or arrested. Even

though Koonce testified that she believed she would have to go
5

downtown if she did not cooperate, the district court’s finding

that no such threat was made is not clearly erroneous.

II

Federal Rule of Evidence 404(b) provides that evidence of

other crimes, wrongs, or acts is not admissible to prove the

character of the accused and that she acted in conformity with that

character in the conduct charged. Evidence of other acts is

intrinsic when it is “inextricably intertwined” with the crime

charged or part of a “single criminal episode.” United States v.

Coleman, 78 F.3d 154, 156 (5th Cir. 1996) (citation omitted). Such

evidence does not implicate Rule 404(b).

The evidence concerning falsification of lab reports in

January 1997 was intrinsic. “Evidence of an uncharged offense

arising out of the same transactions as the offenses charged in the

indictment is not extrinsic evidence within the meaning of Rule

404(b), and is therefore not barred by the rule.” United States v.

Maceo, 947 F.2d 1191, 1199 (5th Cir. 1991). Though the indictment

covered a period of time excluding January 1997, falsification of

lab reports was part of the very scheme for which Koonce was

convicted.

III

A district court’s refusal to grant a mistrial based on the

admission of prejudicial evidence is reviewed for an abuse of

discretion. See United States v. Limones, 8 F.3d 1004, 1007 (5th

Cir. 1993). A new trial is required only if there is a significant

possibility that the prejudicial evidence had a substantial impact
6

upon the jury verdict, viewed in light of the entire record. See

id. at 1007-08. The district court’s assessment of a remark’s

prejudicial effect is entitled to considerable weight. See United

States v. Nguyen, 28 F.3d 477, 483 (5th Cir. 1994). 

The district court did not abuse its discretion in denying

Koonce’s motion for a mistrial based on the prosecution witness’s

testimony that Koonce had used a racial epithet. The prosecution

had not solicited the remark, and both the prosecution and the

defense admonished the jury that the case was not about race.

Indeed, the case had no racial overtones, and given the paper trail

Koonce had left, the case did not turn on credibility

determinations. Finding a mistrial here would be tantamount to

creating a bright-line rule requiring mistrials given the

occurrence of such statements before a jury. 

IV

A district court does not have to make a precise determination

of the amount of loss for sentencing purposes, but may make a

reasonable estimate based on available evidence that has sufficient

indicia of reliability. See United States v. Vital, 68 F.3d 114,

120 (5th Cir. 1995). The PSR is considered reliable evidence for

sentencing purposes. When the defendant does not present rebuttal

evidence, a district court may adopt facts contained in the PSR

without further inquiry. See United States v. Puig-Infante, 19

F.3d 929, 943 (5th Cir. 1994). Unsupported objections to the PSR

are not competent rebuttal evidence. See United States v. Lowder,

148 F.3d 548, 552 (5th Cir. 1998).
7

Koonce asserts that services other than drug screenings were

provided to customers and that the amount of loss was lower than

the PSR’s calculation. In her objections to the PSR, Koonce

asserted that she had records and documents that would show that

the total amount of the loss was about $30,000. The court

overruled her objections, finding that the indictment charged her

with fraud totaling approximately $51,212 and that she was

convicted of this. Although this statement seems to indicate that

the court relied on the evidence at trial to support the amount of

loss, the court also overruled the objection to the PSR, indicating

its reliance on that document. Koonce’s unsupported assertion that

this amount was incorrect is insufficient to show that this

information was inaccurate or unreliable. See Lowder, 148 F.3d at

553.

AFFIRMED.