United States v. Gregorio Garcia , 521 F. App'x 71 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-1866
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UNITED STATES OF AMERICA
v.
GREGORIO GARCIA,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 1-09-cr-00380-004
District Judge: The Honorable Christopher C. Conner
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 22, 2013
Before: McKEE, Chief Judge, SMITH, and GREENAWAY, JR., Circuit Judges
(Opinion Filed: March 28, 2013)
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OPINION
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SMITH, Circuit Judge.
Gregorio Garcia pleaded guilty in accordance with a conditional plea
agreement to conspiring to possess with the intent to distribute at least 100
kilograms of marijuana in violation of 21 U.S.C. § 846. The conditional plea
agreement preserved Garcia’s right to challenge the denial of his motion to
suppress certain statements. The United States District Court for the Middle
District of Pennsylvania sentenced Garcia to 108 months of imprisonment. This
timely appeal followed, challenging the District Court’s denial of Garcia’s motion
to suppress. 1 We will affirm.
On September 9, 2009, Drug Enforcement Agent Keith Kierzkowski,
Franklin County Detective Jayson Taylor, and several other local law enforcement
agents executed a search warrant at the home of Garcia’s brother-in-law Ricardo
Preciado-Rodriguez. Garcia, his mother, and his girlfriend, Brittany Martin,
arrived at his sister’s home as the search was almost finished. When Garcia
entered the home, Kierzkowski recognized him as an individual involved in
narcotics trafficking. Kierzkowski and Taylor asked Garcia if they could talk with
him, Garcia agreed, and the three men went up a flight of stairs to a landing.
Kierzkowski advised Garcia that he was not under arrest, but that he knew Garcia
was involved in drug trafficking. Kierzkowski and Taylor did not advise Garcia of
his Miranda 2 rights, however, because neither of them considered Garcia to be in
1
The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291.
2
See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
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custody. Garcia admitted his involvement in certain unlawful conduct, including
transporting marijuana from Winchester, Virginia, to Chambersburg, Pennsylvania.
At the conclusion of their discussion, the men came downstairs and by Garcia’s
account, Garcia went outside with Martin and remained there until the law
enforcement agents left. A week later, on September 16, 2009, Garcia was
arrested. After receiving his Miranda warnings, Garcia again spoke with the law
enforcement agents about his involvement in drug trafficking.
Thereafter, an indictment charged Garcia with violating 21 U.S.C. §§ 841and 846. Garcia sought to suppress the statements he uttered on September 9 to
Kierzkowski and Taylor, contending that he was in custody at the time and had not
been given Miranda warnings. See Dickerson v. United States, 530 U.S. 427, 443-
44 (2000) (declining to overrule Miranda and reaffirming that “unwarned
statements [given during custodial interrogation] may not be used as evidence in
the prosecution’s case in chief”). According to Garcia, the circumstances
demonstrated that he was not free to leave the interrogation. He noted that
Kierzkowski and Taylor, who were in “full police ‘raid’ gear,” separated him from
the other individuals in the house by grabbing his arm and directing him up a
staircase to a landing. He claimed that he was never advised that he was free to
leave. He argued that the interrogation was lengthy and coercive, as evidenced by
the detailed DEA-6 form completed by Kierzkowski, reflecting the contents of
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Garcia’s conversation with the agents. Garcia also moved to suppress his
statements on September 16 as fruit of the poisonous tree. See Wong Sun v. United
States, 371 U.S. 471, 487-88 (1963).
After a hearing, which presented conflicting testimony by Kierzkowski,
Taylor, Garcia, and Martin, the District Court credited the testimony of
Kierzkowski and Taylor. The Court recognized that advising a suspect of his
culpability is a factor that tends to support the custodial nature of questioning. See
United States v. Jacobs, 431 F.3d 99, 105 (3d Cir. 2005). Nonetheless, the Court
concluded that all of the other circumstances weighed in favor of finding that
Garcia was not in custody when questioned on September 9. It specifically noted
that there was no display of firearms. Indeed, Garcia testified that he “never took
notice” if Kierzkowski and Taylor had firearms. The Court also found that there
were no threats or violence against Garcia and that Garcia felt free to leave the
house with Martin after speaking with Kierzkowski and Taylor. Having
determined that the questioning did not occur in a custodial setting, the Court
concluded that Miranda warnings were not required and denied the motion to
suppress.
“On appeal from the denial of a motion to suppress, we review a district
court’s factual findings for clear error, and we exercise de novo review over its
application of the law to those factual findings.” United States v. Pavulak, 700
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F.3d 651, 660 (3d Cir. 2012). “Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985). This is particularly true
“[w]hen findings are based on determinations regarding the credibility of witnesses
. . . for only the trial judge can be aware of the variations in demeanor and tone of
voice that bear so heavily on the listener’s understanding of and belief in what is
said.” Id. at 575.
After reviewing the record, which contains evidence to support the District
Court’s factual findings, we conclude that the District Court did not err in its
determination that Garcia was not in custody and that Miranda warnings were not
required. Accordingly, there was no basis for suppressing Garcia’s statements.
We will affirm the judgment of the District Court.
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