United States District Court, N.D. Georgia, Atlanta Division
MAGISTRATE JUDGE'S REPORT AND
RUSSELL G. VINEYARD UNITED STATES MAGISTRATE JUDGE.
Matthew Harrell (“Harrell”) is charged in a
thirty-two count indictment, along with three co-defendants,
with conspiracy to commit healthcare fraud, in violation of
18 U.S.C. § 1349; healthcare fraud, in violation of 18
U.S.C. § 1347; and aggravated identity theft, in
violation of 18 U.S.C. § 1028A. [Doc. 1].Harrell has filed
pretrial motions to suppress statements. [Docs. 44 &
On May 15, 2018, an evidentiary hearing was held on
Harrell's motions to suppress, and the parties indicated
that there was no need for further briefing on the motions to
suppress statements. See [Doc. 63]. For the reasons
that follow, it is RECOMMENDED that
Harrell's motions to suppress statements, [Docs. 44 &
53], be DENIED.
STATEMENT OF FACTS
October 2014, Investigator Ralph D. Harper (“Inv.
Harper”), of the Georgia Medicaid Fraud Control Unit,
was investigating Harrell and his company, Revive Athletics,
Inc. (“Revive Athletics”), which purportedly
provided counseling services to Medicaid recipients in
Georgia, after receiving a referral that identified certain
“discrepancies in the billing with Revive Athletics as
it pertained to a practitioner that was rendering services
for mental health.” (Tr. at 2-4); [Doc. 1 at 3 ¶
10]. As part of his investigation, Inv. Harper conducted a
site visit to Revive Athletics on October 21, 2014, and
discovered that the office was closed, the door was locked,
and no one was present. (Tr. at 4). Inv. Harper spoke with a
neighboring tenant, who provided him the name of the building
manager, and after speaking with the building manager, he
received a phone call from Harrell, who had been notified by
the building manager that Inv. Harper was trying to get in
touch with him. (Tr. at 4-5). During this conversation,
Harrell informed Inv. Harper that he was in the process of
closing down the Medicaid portion of his business but that he
was still going to operate as a non-profit, and Inv. Harper
asked if he could call Harrell back if needed, and Harrell
said that he could. (Tr. at 5).
receiving a voice mail message from Harrell on October 23,
2014, Inv. Harper returned Harrell's phone call the
following day, and during this call, which was not recorded,
Harrell again explained that he was closing the Medicaid
portion of his business, and Inv. Harper told him that he
would like to meet with him to discuss some documents he had,
and the two agreed to meet that day. (Tr. at 5, 12). Harrell
also inquired as to whether he needed an attorney, and Inv.
Harper said that “bringing an attorney was entirely his
decision” and that if Harrell “met with [him] he
was not going to be arrested, and he was free to leave at any
time.” (Tr. at 5-6).
approximately 1:00 p.m. on October 24, 2014, Inv. Harper met
with Harrell in a large conference room at the offices of the
Georgia Medicaid Fraud Control Unit. (Tr. at 6). Chief
Investigator Johnny Brooks (“Inv. Brooks”) and
Investigator Lee Thompson (“Inv. Thompson”) also
were present for the meeting. (Tr. at 6, 17-18). Harrell was
not accompanied by an attorney. (Tr. at 6). During this
meeting, which lasted two and a half hours and was not
recorded, Harrell made several incriminating statements,
which led Inv. Harper to “believe that Medicaid had
been billed for services that hadn't been provided which
[was] Medicaid fraud.” (Tr. at 8-16). At some point
during the interview, Inv. Harper left the room for a couple
of minutes to take a phone call. (Tr. at 8, 18-19). At this
time, Harrell asked Inv. Brooks and Inv. Thompson what he
could get in return for his statements, and Inv. Brooks
advised him that he “could not make any deals, that he
just needed to be honest[.]” (Tr. at 18-19). Also,
during the interview, Robin Dykes, an Assistant Attorney
General, entered the conference room and Harrell proceeded to
make additional statements. (Tr. at 10).
interview was conducted in a “normal conversation tone,
” and no one told Harrell he could not leave, and in
fact, he was advised that he was free to leave at any time.
(Tr. at 8-9, 16, 19-20). The investigators did not display
any firearms or use force or physically restrain Harrell in
any way, nor did they make any threats or promises to Harrell
to induce him to make any statements. (Tr. at 7, 9, 19, 21).
Harrell appeared to understand the questions being asked of
him, did not appear to be under the influence of any drugs or
alcohol, and did not appear to have any mental or physical
disability. (Tr. at 7-8, 19). At the conclusion of the
interview, Harrell was not arrested and left the offices of
the Georgia Medicaid Fraud Control Unit. (Tr. at 11, 16, 22).
moves to suppress any statements he made to the
investigators, arguing that he was “essentially both in
custody and [that] to a reasonably prudent person in this
position would consider himself in custody.” (Tr. at
23). Specifically, Harrell argues that he was
“[e]ssentially led into a trap where he walk[ed] into a
conference room” and there was a “raid against
him” and that it was therefore “not a voluntary
interview.” (Tr. at 24-25). In response, the government
argues that Harrell made “a free and voluntary choice
to participate in the interview on October 24th” and
that he was simply not in custody. (Tr. at 26).
initially argues that he was “in custody” for
purposes of Miranda advisements. (Tr. at 24).
“‘Miranda warnings are required before
any statement may be admitted into evidence at trial which
was elicited from a person in custody through
interrogation.'” United States v. Dudley,
Criminal No. 1:10-CR-075-CAP-RGV, 2011 WL 1100607, at *4
(N.D.Ga. Feb. 3, 2011), adopted by 2011 WL 1060659, at *1
(N.D.Ga. Mar. 24, 2011) (quoting United States v.
Adams, 1 F.3d 1566, 1575 (11th Cir. 1993)).
“Custody for purposes of triggering Miranda
advisements occurs when there has been a formal arrest or
restraint on freedom of movement of the degree associated
with a formal arrest.” Id. (citation and
internal marks omitted). “Whether or not a suspect is
in custody prior to his formal arrest depends on whether
under the totality of the circumstances, a reasonable man in
his position would feel a restraint on his freedom of
movement to such extent that he would not feel free to
leave.” Id. (citation and internal marks
omitted). “The standard is objective in that the actual
subjective beliefs of [the] officer and defendant are
irrelevant: custody exists only if a reasonable person under
the same set of circumstances would not feel free to
leave.” Id. (citation omitted). “Thus,
[t]he mere fact that an investigation has focused on a
suspect does not trigger the need for Miranda warnings in
noncustodial settings.” Id. (alteration in
original) (citation and internal marks omitted).
voluntarily appeared for the interview with the
investigators, who had no authority to arrest him, and
Harrell was advised he was free to leave at any point, could
bring an attorney if he wanted, and that Inv. Harper would
not be arresting him if he met with him. (Tr. at 6, 22).
Harrell voluntarily came to the Medicaid Fraud Control Unit
Office after Inv. Harper received Harrell's voice mail
message and returned his call, and they agreed to meet. (Tr.
at 4-7, 11, 16, 22). Harrell was not physically restrained
nor was his movement restricted in any way during the
interview, which took place in a large conference room with
windows on two sides of the walls. (Tr. at 6-7, 9, 19, 21).
No. threats or promises were made to Harrell to induce him to
make any statements. (Tr. at 7, 9, 19, 21). At the conclusion
of the interview, Harrell was not arrested and permitted to
leave without hindrance. (Tr. at 11, 16, 22).
is simply no evidence that [Harrell] was in any manner
physically restrained or told that he had to stay until the
questioning had been completed, ” and “the Court
concludes that [Harrell's] freedom of movement was not
restrained during [the] interview to the degree associated
with a formal arrest. United States v. Donaldson,
493 F.Supp.2d 998, 1004 (S.D. Ohio 2006); see also United
States v. Kidd, CRIMINAL No. 1:16-CR-00172-AT-JFK, 2016
WL 10704429, at *6 (N.D.Ga. Dec. 7, 2016), adopted by 2017 WL
6520539, at *1 (N.D.Ga. Dec. 19, 2017) (citations omitted)
(finding “[n]one of the statements made by the agents
during the interview would have led Defendant, who was not
physically restrained, to believe that he was in custody,
” where “[t]he agents did not threaten Defendant
and did not refer to or brandish firearms” and
“Defendant, who the court [found] voluntarily appeared
for the interview, was not told that he was not free to leave
but nonetheless could have left at anytime and was advised
that he would not be arrested that day and would be contacted
in the future about possible charges, ” and he
“was not arrested and, in fact, was not arrested until
several months later”). Thus, after consideration of
the totality of circumstances, the Court finds that Harrell
voluntarily appeared and participated in the meeting and was
not in “custody” for purposes of Miranda
advisements. Dudley, 2011 WL 1100607, at *5; see
also United States v. Williams, No.
3:09-cr-19-MEF, 2010 WL 2595001, at *1 (M.D. Ala. June 24,
2010); United States v. Hargroves, 628 F.Supp. 168,
170 (D. Kan. 1986) (finding defendant was not in custody
where he “was summoned by letter and a follow-up phone
call, ” “came to the meeting voluntarily and left
freely, ” “was never placed under arrest, nor was
he threatened with arrest, ” and “[t]he statement
he gave was in his own words, and there [was] no allegation
that it was ‘suggested' to him”).
United States Supreme Court's ruling in Jackson v.
Denno, 378 U.S. 368 (1964), governs the voluntariness of
confessions, and provides in pertinent part:
It is now axiomatic that a defendant in a criminal case is
deprived of due process of law if his conviction is founded,
in whole or in part, upon an involuntary confession, without
regard for the truth or falsity of the confession, and even
though there is ...