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United States v. Swan

United States Court of Appeals, First Circuit

November 21, 2016

UNITED STATES OF AMERICA, Appellee,
v.
CAROLE SWAN, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. John A. Woodcock, Jr., U.S. District Judge

          Darla J. Mondou, with whom Mondou Law Office was 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.

          Before Howard, Chief Judge, Torruella and Barron, Circuit Judges.

          HOWARD, Chief Judge.

         Defendant-Appellant Carole Swan, former selectperson for the Town of Chelsea, Maine, appeals her convictions for Hobbs Act extortion, 18 U.S.C. § 1951(a), tax fraud, 26 U.S.C. § 7206(1), and making false statements to obtain federal worker's compensation, 18 U.S.C. § 1920. The sole issue raised on appeal is the district court's denial of a motion to suppress incriminating statements made during Swan's interview with two sheriff's deputies. Swan argues that suppression was required because her statements were obtained through a custodial interrogation without the benefit of a Miranda warning. See Miranda v. Arizona, 384 U.S. 436 (1966). Alternatively, she claims that her incriminating statements were not made voluntarily. See Blackburn v. Alabama, 361 U.S. 199 (1960). We affirm.

         I.

         The citizens of Chelsea, Maine (the "Town"), elected Swan to serve as a selectperson, and she held that position for nineteen years. During the course of her tenure, however, Swan came under investigation for allegedly using her public office to profit at the Town's expense. In early 2011, a deputy from the Kennebec County Sheriff's Office ("KCSO") met with Frank Monroe, a local businessman. Monroe told the deputy that Swan had instructed him to over-bill the Town for sand delivery and pay her a $10, 000 kickback.

         After receiving this information, the KCSO set up a sting operation. Under the direction of the sheriff's office, Monroe submitted an inflated bill to the Town for the amount indicated by Swan. The invoice was subsequently approved and a check to Monroe was issued. On February 3, 2011, Swan collected the check from the Town and instructed Monroe to pick it up from the mailbox located at the end of her driveway. Monroe picked up the check, while being watched by two KCSO deputies, Lieutenant Ryan Reardon and Detective David Bucknam. Reardon and Bucknam then gave Monroe a bag of money, with directions to deliver it to Swan. Monroe met Swan and gave her the kickback. After accepting the funds, Swan drove to the parking lot of a nearby laundromat. The deputies followed Swan and parked behind her.

         As Swan made her way towards the laundromat, the deputies stepped out of their vehicle and approached her. Reardon, displaying his badge, called out "Carole, " and told her, "I want my money back." Swan responded that Monroe owed her money. Reardon reiterated that he wanted the money back. Swan returned to her vehicle, retrieved the bag of money, and handed it to Reardon. She asked whether she was in trouble. The deputies suggested that they discuss the issue at the sheriff's office, rather than in the parking lot. Swan assented and - accompanied by Bucknam - drove herself to the station. At some point during the encounter in the parking lot, Bucknam came into possession of Swan's phone.

         At the sheriff's office, Swan met with Reardon and Bucknam in an interview room. The deputies assured Swan that she was "not under arrest, " that she was free to leave "[a]t any point, " and that it was "fine" if she did not "want to have [a] conversation" with them. Despite these assurances, Swan stayed and spoke with the deputies. The deputies initially maintained possession of Swan's cellphone. When Swan asked whether she could have the phone back, Bucknam told her that he would return it soon, explaining that he was only keeping the phone so that Swan would not get distracted. Shortly thereafter, Swan's phone rang and she reached for it, saying that it was her husband. Bucknam told Swan that he was "just gonna to hit the thing" and send the call "to voicemail." Swan responded, "All right."

         Over the course of her hour-and-a-half conversation with deputies, Swan made numerous incriminating statements, including an admission that she had received approximately $25, 000 in kickbacks. Towards the end of the interview, Swan told the deputies that she needed to call her husband. The officers returned her phone, offered to let her step outside to make the call, and, ultimately - when Swan opted to stay put - left the room. After speaking with her husband, Swan told the officers that they could come back in and resume the conversation. She retained her phone for the rest of the interview and, when it ended, thanked the officers.

         A federal grand jury subsequently indicted Swan on multiple counts of Hobbs Act extortion, as well as tax fraud and making false statements to obtain federal worker's compensation. The district court severed the charges, allowing Swan to receive two separate jury trials: one for extortion and a second for the remaining counts.

         Before trial, Swan moved to suppress the statements that she had made at the sheriff's office. Following an evidentiary hearing, a magistrate judge recommended denying Swan's motion, concluding that she had not been subjected to a custodial interrogation and that her ...


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