United States v. Murdock , 699 F.3d 665 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 12-1167
UNITED STATES,
Appellee,
v.
ERIC MURDOCK,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Brock D. Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and McConnell, Jr.,* District Judge.
Felicia H. Ellsworth, with whom Boyd M. Johnson III, Caitlan
W. Monahan, and Wilmer Cutler Pickering Hale and Dorr LLP were on
brief, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
November 20, 2012
*
Of the District of Rhode Island, sitting by designation.
McCONNELL, District Judge. A jury convicted Eric Murdock
of being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). Mr. Murdock was sentenced under the Armed
Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), to 216 months in
prison. On appeal, Mr. Murdock argues that the district court
erred in three ways, by (i) refusing to suppress his statement
regarding a bag containing firearms; (ii) admitting an audio
recording of a telephone call; and (iii) sentencing him under the
ACCA. Finding no error in the district court’s rulings, we affirm.
I.
Mr. Murdock challenges the district court’s denial of his
motion to suppress a statement he made to the police regarding the
color of a bag containing firearms and ammunition. Mr. Murdock
contends that his statement should have been suppressed because he
was in custody and not given Miranda warnings.
We recount the facts as supportably found by the district
court, including any inferences drawn from those facts. United
States v. Crooker, 688 F.3d 1, 3 (1st Cir. 2012). Here, those
facts and inferences are taken from the bench decision issued after
hearing Mr. Murdock’s motion to suppress, as well as testimony at
that hearing.
On August 20, 2010, Mr. Murdock was at the Eliot, Maine
police station on an unrelated charge. He was released, subject to
bail conditions prohibiting him from possessing firearms and
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requiring him to submit to searches of his home and his person. At
that time, Mr. Murdock and his wife were staying at a residence on
Young Street in South Berwick, Maine.
An agent of the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”) contacted South Berwick police officer Jeffrey
Pelkey and told him that Mr. Murdock had been released from the
Eliot police station and was headed home to South Berwick. ATF had
been told that Mr. Murdock may have received some firearms in the
mail. Concerned that those firearms were at Mr. Murdock’s
residence, the ATF agent asked Officer Pelkey to ensure that no
firearms were there. Officer Pelkey requested and received a
facsimile of the bail bond containing the firearms ban and the
requirement that Mr. Murdock submit to searches of his home and his
person.
When Officer Pelkey arrived at the Young Street residence
where Mr. Murdock was staying, Mr. Murdock and his wife already had
exited their car and started walking to the residence. Officer
Pelkey, who was in uniform, verbally ordered Mr. Murdock to stop,
but Mr. Murdock continued walking away from him. Officer Pelkey
unholstered his firearm, kept it at his side, and ordered
Mr. Murdock to stop and come back. Mr. Murdock complied. Then
Officer Pelkey reholstered his weapon, spoke to Mr. Murdock, and
patted him down. Officer Pelkey advised Mr. Murdock that officers
were searching for weapons pursuant to his bail conditions.
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Within about a minute, four additional law enforcement
officers arrived; three officers were in uniform while one was not,
but that officer had his badge and firearm. The owner of the Young
Street residence, John Belliveau, came to the front door and spoke
with Officer Pelkey. Mr. Belliveau consented to a search of the
entire residence, not just the area where Mr. Murdock was staying.
During the next forty-five minutes to an hour,
Mr. Murdock remained on the small front lawn, an area approximately
12 to 15 feet by 20 feet. Mr. Murdock spoke to his wife, used his
cell phone, sat in a chair, and drank a beverage. He was not
handcuffed or restrained, was not told that he could not leave, and
was not advised of his rights under Miranda v. Arizona, 384 U.S. 436(1966). Most of the time, one or two officers remained with
Mr. Murdock.
While Mr. Murdock was on the lawn, officers searched for
firearms. In the trunk of a car garaged on the premises, officers
found a red overnight bag containing two handguns and ammunition.
The bag was given to Officer Pelkey, who carried it from the garage
towards the front lawn, holding it on his side so it was not visible
to those on the lawn. Officer Pelkey announced that he had found
“the blue bag with your weapons in it.” Mr. Murdock interjected
that the bag was red, prompting Officer Pelkey to agree that the bag
was red.
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Officer Pelkey also spoke to Mr. Murdock about a trailer
that was on the property. The trailer belonged to Mr. Murdock and
the officers wanted to search it. It had two separate doors that
were padlocked, and Mr. Murdock gave the officers a wad of keys to
see if any would fit in the locks. When none of the keys worked,
the officers told Mr. Murdock that they would probably be breaking
one of the locks. Mr. Murdock requested that the officers break the
smaller lock as it was less expensive to replace. The officers
broke the smaller lock.
Ultimately, Officer Pelkey informed Mr. Murdock that
Mr. Belliveau did not want him staying at the Young Street residence
any more. Mr. Murdock called his son, and then his son came and
picked him up.
Before trial, Mr. Murdock moved to suppress his statement
regarding the color of the bag. He argued that he was in custody
and not given his Miranda warnings, so the statement should be
suppressed. After hearing testimony and argument, the district
court ruled that Mr. Murdock was not in custody for Miranda purposes
and denied the motion to suppress. The district court reached this
conclusion by conducting an objective analysis of the following
circumstances: the location and duration of the encounter; the
number of officers; the officers’ activities; Mr. Murdock’s behavior
on the lawn; and the brief drawing of one firearm by an officer when
Mr. Murdock did not comply with an order.
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We review de novo a district court’s ultimate legal
decision to deny a motion to suppress, and review for clear error
the district court’s underlying factual findings. United States v.
Lawlor, 406 F.3d 37, 41 (1st. Cir. 2005). “Deference to the
district court’s findings of fact reflects our awareness that the
trial judge, who hears the testimony, observes the witnesses’
demeanor and evaluates the facts first hand, sits in the best
position to determine what actually happened.” United States v.
Young, 105 F.3d 1, 5 (1st Cir. 1997). For Mr. Murdock to succeed
in his challenge to the denial of his motion to suppress, he “must
show that no reasonable view of the evidence supports the district
court’s decision.” United States v. Dunbar, 553 F.3d 48, 55 (1st.
Cir. 2009) (quoting United States v. Morales-Aldahondo, 524 F.3d
115, 119 (1st Cir. 2008)).
For Miranda rights to arise, an individual need not be
under arrest but must be in custody. Crooker, 688 F.3d at 10-11
(quoting United States v. Guerrier, 669 F.3d 1, 6 (1st Cir. 2011)).
To ascertain whether someone was in custody for Miranda purposes,
a district court “examines the circumstances surrounding the
questioning and then it sees whether those circumstances would cause
a reasonable person to have understood his situation to be
comparable to a formal arrest.” Guerrier, 669 F.3d at 6. This
analysis is guided by several factors, including “where the
questioning occurred, the number of officers, the degree of physical
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restraint, and the duration and character of the interrogation.”
Id. (quoting United States v. Teemer, 394 F.3d 59, 66 (1st Cir.
2005)).
Mr. Murdock contends that he was in custody when he
rebutted Officer Pelkey’s characterization of the bag as blue. He
argues that a reasonable person in his situation would not have felt
free to leave and therefore he was in custody. Mr. Murdock focuses
primarily on the initial stop, the number of officers present, his
constant monitoring by one or two officers, that he was the target
of the search, his confinement to a “very small” front lawn for
nearly an hour, and that he was not told that he was not under
arrest.
Our review reaches the same conclusion as the district
court. Mr. Murdock responded to the “blue bag” comment while he was
in familiar surroundings, where questioning generally is considered
less intimidating. United States v. Hughes, 640 F.3d 428, 435-36
(1st Cir. 2011). Five officers were present, with one or two
keeping an eye on Mr. Murdock most of the time and the others
searching the premises. This number of officers is not
overwhelming. See id. at 436. While Mr. Murdock remained on the
small lawn, he stood, sat, drank a beverage, and used his phone.
Mr. Murdock was not handcuffed or arrested. See id. (finding no
custody where defendant was confined to a small area, but nothing
suggests his personal space was invaded and no meaningful restraint
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was applied to defendant). Although Officer Pelkey drew his
firearm, he did so only once and briefly when Mr. Murdock did not
comply with his order to stop. See Crooker, 688 F.3d at 11 (finding
no custody where officers holstered guns after house was cleared).
Mr. Murdock remained on the lawn for forty-five minutes to an hour,
a relatively short period of time. See id. at 5, 12 (finding no
custody where a multiple-hour search was conducted); see also
Hughes, 640 F.3d at 437 (finding no custody where defendant was
interviewed for ninety minutes). Finally, Mr. Murdock’s
interactions with Officer Pelkey appear to have been courteous and
compendiary: his comment regarding the red bag was brief; he
negotiated regarding which lock on the trailer would be broken; and
he responded to the news that Mr. Belliveau wanted him to leave by
phoning his son. See Hughes, 640 F.3d at 437 (finding no custody
where “the ambiance was relaxed and non-confrontational”).
The familiar surroundings, few officers, lack of physical
restraint, short time period, and nature of the verbal exchanges
lead us to conclude that Mr. Murdock was not in custody for Miranda
purposes. The fact that Mr. Murdock did not receive warning of his
Miranda rights therefore was not a constitutional violation and the
district court did not err in denying Mr. Murdock’s motion to
suppress.
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II.
Mr. Murdock next challenges the district court’s
admission of an audio recording of a telephone call to South Berwick
Police Chief Dana Lajoie. He argues that the district court abused
its discretion by admitting the recording because the government
introduced insufficient evidence from which the jury could have
concluded that Mr. Murdock was the caller.
“The admissibility of voice recordings and voice
identifications is left to the sound discretion of the trial judge.”
United States v. Santana, 898 F.2d 821, 823 (1st Cir. 1990). We
review the district court’s admission of the telephone call for
abuse of discretion. See United States v. Díaz, 597 F.3d 56, 64
(1st Cir. 2010).
Before trial, Mr. Murdock moved in limine to exclude the
audio recording. The district court found “from the transcript that
the jury could circumstantially reach a conclusion on authentication
from the contents of the call.” Although the government offered to
present witnesses who could identify Mr. Murdock’s voice, the
district court declined to hear any as it was “content that there
is enough, because of the transcript, to deny [the] motion in limine
. . . .”
During the call, the caller identified himself as Eric
Murdock, named his wife and provided her maiden name, explained that
he was a felon but his wife was not, recited facts regarding two
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firearms arriving in South Berwick by mail, and indicated that the
firearms were taken by a SWAT team. Chief Lajoie responded that
those firearms were in the possession of the South Berwick police
department. When the caller explicated that the firearms were a
gift for his stepson and he wanted him to have them, Chief Lajoie
told the caller to provide a written statement that the firearms
were a gift. In addition, Chief Lajoie explained that ATF had to
complete a trace process, and it would take some time. When the
caller asked if he could get a call back when the firearms were
ready, Chief Lajoie said yes, and asked the caller for his name and
number. The caller replied that he was Eric Murdock, saying and
spelling both names, and provided a phone number.
To authenticate evidence, “the proponent must produce
evidence sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a). “If the court
discerns enough support in the record to warrant a reasonable person
in determining that the evidence is what it purports to be, then
Rule 901(a) is satisfied and the weight to be given to the evidence
is left to the jury.” United States v. Paulino, 13 F.3d 20, 23 (1st
Cir. 1994). Focusing on conversations, it is unnecessary for
someone familiar with the caller’s voice to identify it prior to the
evidence being admitted. United States v. Ingraham, 832 F.2d 229,
236 (1st Cir. 1987); see also United States v. DeSimone, No. 11-
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1996, 2012 WL 5458440, at *9 (1st Cir. Nov. 9, 2012). Conversations
may be authenticated by circumstantial evidence. Id.Mr. Murdock contends that the mere assertion of identity
by the caller is insufficient evidence of authentication. Absent
confirming circumstances, we do not disagree. However, the district
court did not rely on only the assertion of identity, but also on
the contents of the call. The caller expressed knowledge of
numerous precise details regarding Mr. Murdock, his wife, the
arrival and seizure of the firearms, as well as his son. Under
these circumstances, we discern no abuse of discretion.
III.
Lastly, Mr. Murdock challenges the district court’s
determination that he fell within the purview of the ACCA. The ACCA
mandates a 15-year minimum sentence for a person convicted of
certain federal crimes, including being a felon in possession of a
firearm, upon a showing that the defendant was previously convicted
of three predicate offenses. 18 U.S.C. § 924(e). Specifically,
Mr. Murdock challenges the sufficiency of the materials submitted
to support predicate convictions in Virginia and Florida.1 He
1
Although Mr. Murdock argued in the district court that his
prior conviction for assault and battery with a dangerous weapon in
Massachusetts did not categorically qualify as a predicate offense
under the ACCA, Mr. Murdock does not argue that here. After his
sentencing but before the filing of his appellate brief, this Court
held that a conviction for Massachusetts assault and battery with
a dangerous weapon qualifies as a predicate offense under the ACCA.
See United States v. Hart, 674 F.3d 33,44 (1st Cir. 2012). Eric B.
Murdock is the name of the defendant in a document submitted in
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argues that the government did not satisfy its preponderance of the
evidence burden to show that he is the same person as the person
previously convicted of those two crimes.
“We review the determination that a defendant is subject
to an ACCA sentencing enhancement de novo, but we review the
district court's factual findings underlying the determination for
clear error.” United States v. Bennett, 469 F.3d 46, 49 (1st Cir.
2006) (internal citations omitted). As Mr. Murdock’s challenge to
the sufficiency of the evidence supporting his prior convictions is
a factual one, “due deference” is given to the district court’s
findings and we reverse only for clear error. United States v.
Diaz, 519 F.3d 56, 67 (1st Cir. 2008). “[A] district court’s choice
between two plausible, but conflicting, interpretations of a factual
scenario cannot amount to clear error.” United States v. Bryant,
571 F.3d 147, 156 (1st Cir. 2009) (quoting United States v.
Carrasco, 540 F.3d 43, 49 (1st Cir. 2008)).
To support the 1979 Virginia robbery conviction, the
government submitted three documents from the Circuit Court for the
City of Newport News; one was a certified copy of a document that
the district court concluded was a judgment. All three documents
indicate that the Virginia robbery defendant was Erick Ben Murdock,
support of the Massachusetts conviction.
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with a “k” in Erick and the middle name “Ben.”2 In addition, the
certified document contains a sentence in the middle of it naming
the defendant as “Garry Wayne Vickers.”
To support the 2007 Florida aggravated assault
conviction, the government submitted certified copies of several
documents from the Clerk of the Circuit Court in Pinellas County,
Florida. The Florida documents contain the name Eric Murdoch, with
an “h” in Murdoch.
Regarding the spelling of the defendant’s name and the
use of a middle name, the district judge overruled Mr. Murdock’s
objections. The district court noted that there was not a serious
challenge to identity and spelling is often mistaken. The district
court stated that a name misspelled by a single letter or the use
of a middle name was not a basis to ignore the convictions.
Regarding the inclusion of a Mr. Vickers in the midst of a Virginia
document, the district court examined that document and the other
Virginia documents and determined that the inclusion of Mr. Vickers
was a “scrivener’s error.” The district court was satisfied that
Virginia robbery defendant was the same Mr. Murdock appearing before
it.
2
At sentencing, Mr. Murdock objected to the Presentence
Investigation Report using the name Eric B. Murdock. He noted that
the indictment in this matter named him as Eric Murdock with no
middle initial. The district court overruled this objection
because it did not hear a sufficient challenge to the identity of
the defendant.
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On appeal, Mr. Murdock argues that the district court
committed clear error when it found that the government had proved
the fact of prior conviction for these two predicate offenses. We
disagree. The district judge carefully considered Mr. Murdock’s
arguments, but nevertheless ruled in favor of the government.
For the ACCA to apply, a sentencing judge “need only find
prior convictions by a preponderance of the evidence.” Diaz, 519
F.3d at 67. “The Government may satisfy its burden by producing a
certified copy of the conviction or an equivalent proffer.” United
States v. McKenzie, 539 F.3d 15, 19 (1st Cir. 2008). Moreover,
docket reports, charging documents, written plea agreements, and
other comparable judicial records may be used as evidence to support
prior convictions. Id.; see also United States v. Sumrall, 690 F.3d
42, 44 n.2 (1st Cir. 2012).
Based on our review of the record, the district court’s
reading of the Florida and Virginia records was plausible. We do
not find clear error in the district court’s determination that the
Mr. Murdock before it was the same individual convicted of robbery
in Virginia and aggravated assault in Florida.
Affirmed.
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