United States District Court, N.D. Georgia, Atlanta Division
UNITED STATES MAGISTRATE JUDGE'S ORDER AND FINAL
REPORT AND RECOMMENDATION
J. RAVERMAN UNITED STATES MAGISTRATE JUDGE
before the Court are the following pretrial motions filed by
Defendants Pauline Mediko Badiki (“Pauline”),
Ferdinand Mediko (“Fred”), and Monica Mediko
(“Monica”): (1) a motion to sever, [Doc. 31]; (2)
a motion for a Jackson-Denno hearing and to suppress
statements, [Doc. 32]; (3) a motion to suppress evidence
seized by search warrants, [Doc. 34]; and (4) a motion to
suppress evidence seized pursuant to a search for emails and
electronically stored information, [Doc. 38]. The Court held
an evidentiary hearing as to Monica's statements, [Doc.
40 (hereinafter “T”)], because only Monica made
statements that the Government intends to introduce at trial.
For the following reasons, the Court
RECOMMENDS that the motions to suppress be
DENIED and the motion to sever be
DENIED IN PART AND DEFERRED IN
PART to the District Judge.
are charged in a 37-count indictment with: (1) wire fraud
conspiracy, in violation of 18 U.S.C. §§ 1343 &
1349 (Count 1); (2) wire fraud, in violation of 18 U.S.C.
§§ 2 & 1343 (Counts 2-13); (3) theft of
government funds, in violation of 18 U.S.C. §§ 2
& 641 (Counts 14-25); and (4) Special Supplemental
Nutrition Program for Women, Infants, and Children
(“WIC”) fraud, in violation of 18 U.S.C. § 2
& 42 U.S.C. § 1760(g) (Counts 26-37). [Doc. 1 at
1-10]. The indictment also contains a forfeiture provision.
[Id. at 10-11].
Motion to Suppress Statements, [Doc. 32]
Court held a Jackson-Denno hearing on the motion to
suppress, after which the parties filed post-hearing briefs.
[Docs. 41, 42, 43, 44]. With briefing completed on the motion
to suppress statements, the undersigned turns to its merits.
motion revolves around statements Monica made during the
execution of a federal search warrant at her place of
business. On June 11, 2013, at approximately 9:30 a.m.,
United States Department of Agriculture (“USDA”)
Office of Inspector General Investigations
(“OIG”) Special Agents Frederick McCree
(“McCree”) and Douglas Bridges
(“Bridges”), four other USDA-OIG agents, and an
Atlanta Police Department (“APD”) officer
executed a search warrant at Poly-Plex Pharmacy, Inc.
(“Poly-Plex”) located in Atlanta, Georgia. T2,
4-5, 18-20. Monica was a pharmacy technician for
Poly-Plex, [Doc. 1 at 4], and was married to Fred,
Poly-Plex's Chief Executive Officer. [Id.].
Pauline is Fred's sister, and was the founding owner and
operator of Poly-Plex. [Id.].
USDA agents entered the Poly-Plex location through the front
door, while the APD officer waited and remained outside.
T21-23. The agents entered the store in a single-file line;
the first five agents were armed with handguns and the sixth
agent was armed with a shotgun. T5-6. All of the agents
carried their weapons in a low-ready position, meaning that
their weapons were pointed towards the ground. T6-7. They all
wore protective raid vests that had either
“POLICE” or “USDA” along with an
official badge indicating that the agents were law
enforcement. T5. Upon entering the 1, 000 square foot
pharmacy, the agents loudly stated that they were police and
had a search warrant. T6. Immediately upon entry, the agents
conducted a protective sweep of the premises, which took
about ten minutes. T7, 8. At the time of the execution of the
warrant, there were six Poly-Plex employees present,
including Monica. T7. Monica's 12 year old daughter also
was present, and was hysterically crying.
T31-32. During the protective sweep, the
pharmacists stayed in the pharmacy area while the other
employees were gathered on the right side of the retail area
of the store. T8.
conducting the sweep, the agents holstered their weapons.
T12. They announced that they were there to execute a search
warrant, and that the Poly-Plex employees were not under
arrest and they could stay on the premises, but if they
wanted to leave, they would not be allowed reentry while the
warrant was being executed. T7, 8, 9. Each employee elected
to remain. T9. Also, the agents announced that any customers
who needed to get a prescription filled would be allowed to
enter and then leave. T20.
USDA agents solicited each employee for an interview. T8, 9,
10. None refused to be questioned. T10. Monica was the
first person approached for an interview. T15. In requesting
an opportunity to question her, Monica was advised by McCree
that, “[i]f you don't mind we'd like to talk to
you, you're not obligated to talk to us, and I just want
to ask you a few questions, ” to which statement Monica
responded affirmatively. T16.
was questioned in a private office in the back of the
premises, which room was located next to the restroom. T11,
33-34. Monica was positioned in the chair furthest from the
door during the interview, while McCree and Bridges sat
closest to the door. T14. There is no evidence that the
seating arrangement was anything but happenstance. T14,
The door to the office was, for the most part, left ajar
during the interview, except for when the adjacent restroom
was in use. T14.
demeanor of the interview was cordial and conversational.
T33. Although their firearms created a bulge under their
shirts, McCree or Bridges did not unholster their weapons
during the interview. T51-53. They still wore their body
armor and vests labeled with law enforcement insignia. T11.
Monica was not promised anything in return for her
cooperation, nor was she threatened or physically touched in
anyway. T53-54. The entire interview lasted two hours. T54.
the interview, McCree spoke of the existence of an undercover
video that purported showing Monica engaging in an illegal
transaction. T23, 36. The interview was broken up into two
segments due to McCree going back to the USDA office to
retrieve the video in order show Monica its contents. T23,
36, 54. During this intermission, Monica was not
handcuffed nor restrained in any way. T55. She was allowed to
reenter the main store area where she and other store
employees were watched, for safety reasons, by another agent.
T55, 67. McCree testified that when he came back to
Poly-Plex, he recalled asking Monica if she wanted to go to
the backroom to watch the video. T56. However, Bridges could
not recall if she was ordered back to the interview room for
the second part of the interview. T81.
interview was not recorded by the agents, but instead,
Bridges took notes of the interview. T56, 69. These notes
were compiled to produce a Memorandum of Interview to support
the agents' version of the events that transpired. T34.
agents did not read Monica her Miranda warnings before
conducting the interview, T15-16, since they did not consider
her to be under arrest. T17, 59. Monica never requested an
attorney, nor asked to terminate the interview. T17, 59-60.
Neither Monica nor any other person at Poly-Plex was arrested
that day. T18.
argues that based on the totality of circumstances she was in
custody and therefore needed to be read her Miranda
warnings before being interrogated. [Doc. 41 at 11 (citing
United States v. Street, 472 F.3d 1298, 1309
(11th Cir. 2006); United States v. Brown,
441 F.3d 1330, 1347, 1349 (11th Cir. 2006))]. She
contends that an interview being in a police-dominated
atmosphere is a factor in favor of a finding that the
interview was custodial. [Id. (citing United
States v. Matcovich, 522 Fed.Appx. 850, 852
(11th Cir. July 3, 2013))]. In support, she argues
that the execution of the search warrant of Poly-Plex
entailed a police-dominated atmosphere for the following
reasons: the pharmacy was only 1, 000 square feet, and yet
was crammed with six armed agents in raid gear; one of the
six agents was holding a shotgun; the agents took control of
the pharmacy through screaming and brandishing of their
weapons; Monica's daughter was crying hysterically; she
could not leave the pharmacy since she would not be allowed
to return; and she could not ask questions to the agents
without first being subjected to an interview. [Id.
at 11-12]. She also argues that there was no corroborating
evidence, such as written notes, memoranda, or video, to
support the agents' testimony that the interview was
consensual, [id.], stating that the only evidence
the government has produced has been oral testimony from the
agents and the Memorandum of Interview. [Id. at 17].
The Memorandum of Interview, however, did not state how the
agents approached her for the interview, and whether the
agents advised her that she does not have to speak with
them―two key facts that must be known in a
determination of custody. [Id.]. She also points out
that the agents were not able to recall certain key facts
that would be relevant in the custody inquiry, such as:
whether the agents checked her lab coat for weapons and
patted her down prior to the interview; whether she was
ordered to sit in the seat furthest from the door during the
interview; and whether the agents told her that she could
stop the interview at any time or request an attorney.
[Id. at 13-14]. She contends that even though she was
never formally arrested, there are facts to support that her
freedom was restrained to a degree similar to formal arrest.
[Id. at 14-15]. That is, she was under the
agents' dominion for the following reasons: the agents
seized the pharmacy and exercised control over who would be
allowed to come in or out; she was placed in a small backroom
where she was questioned by two agents; the door of the
interview room was blocked by the agents; and she was placed
under guard by a different agent during the break in the
interview. [Id. at 14-15]. Monica contrasts this
case with other Eleventh Circuit cases that found the
defendants in those cases to not be in custody, pointing out
that those cases involved either a situation where the
defendants scheduled the date and time for agents to come and
interview the defendants at their place of business or a
situation where the agents unambiguously communicated to the
defendants that they were free to leave at any time during
the interview. [Id. at 15-16 (citing United
States v. Lazarus, 552 Fed.Appx. 892 (11th
Cir. Jan. 13, 2014); United States v. Maldonado, 562
Fed.Appx. 859 (11th Cir. Apr. 7, 2014);
Matcovich, 522 Fed.Appx. at 852)].
also argues that the Government has the burden to demonstrate
that the interview was not the product of custodial
interrogation. [Id. at 16-17 (citing United
States v. Matlock, 415 U.S. 164, 178 (1974))]. She
submits that the totality of circumstances lead to a finding
that she was in custody and had to be advised of her
Miranda rights. [Id. at 18].
response, the Government argues that Monica's motion
should be denied. [Doc. 42 at 6]. It asserts that she was not
in custody because the agents told her she was free to leave,
never restrained her movement, conducted the interview in the
neutral setting of her workplace, maintained their weapons in
holsters during the interview, and arrested no one on the day
of the search. [Id.].
Government also argues that the defendant has the burden of
establishing that she was held in custody during this
interview, [id. (citing United States v.
Blocker, No. 1:14-CR-228-AT-AJB, 2016 WL 3281018, at *16
(N.D.Ga. Feb. 29, 2016), adopted by, No.
1:14-CR-228-AT, 2016 WL 3259096 (N.D.Ga. June 14, 2016))];
and contends that her citation to Matlock for the
proposition that the Government bears the burden of proving
that an interview was not custodial is inapposite, since
Matlock never addressed the issue of custodial
interrogations, but instead addressed the issue of consent to
search a premises. [Id. (citing Matlock,
415 U.S. at 178)].
totality of the circumstances, the Government asserts,
establishes that Monica's questioning was not a custodial
interrogation because: (1) the interview took place at her
workplace; (2) she was told she was free to leave; (3) she
was not physically restrained or handcuffed during the
interview; (4) the agents did not brandish weapons during the
interview; (5) the interview was not excessively long in
duration; (6) the agents questioned her in a normal tone of
voice and did not touch her during the interview; and (7) no
one was arrested at the conclusion of the interview or
search. [Id. at 7-8]. It further submits that courts
are much less likely to find the circumstances custodial when
the interrogation occurs in familiar or at least neutral
surroundings of the defendant. [Id. at 8 (citing
Matcovich, 522 Fed.Appx. at 851; Brown, 441
F.3d at 1348)]. It posits that the backroom of the pharmacy
is a familiar or at least neutral surrounding.
[Id.]. The Government also states that she was
unambiguously told that she was free to leave and was not
under arrest, a powerful factor in the custody inquiry.
[Id. at 9 (citing Matcovich, 522 Fed.Appx.
at 851)]. The agents told all employees after the protective
sweep that they were free to leave and no one was under
arrest. [Id. at 9]. The agents also told Monica that
she was not obligated to speak to them, and instead, she
voluntarily chose to stay. [Id. at 9-10]. The
Government also points out that Monica was never handcuffed,
and although she claims that the interview was custodial
because the environment was police-dominated, courts have
recognized that such temporary physical restraint for officer
safety during a search warrant execution does not mean that
occupants are in custody. [Id. at 10-11 (citing
Matcovich, 522 Fed.Appx. at 852; United States
v. Young, No. 316-CR-00006-TCB-RGV, 2017 WL 653556, at
*5 (N.D.Ga. Jan. 25, 2017))].
argues that the coercive environment that exists in virtually
every interview by a police officer is not sufficient to
establish a custodial interrogation. [Id. at 7
(citing Matcovich, 522 Fed.Appx. at 851; United
States v. Muegge, 225 F.3d 1267, 1270 (11th
Cir. 2000))]. The Government also argues that the temporary
detention of occupants during a search warrant does not
automatically transform the search into a custodial
interrogation. [Id. at 12 (citing Michigan v.
Summers, 452 U.S. 692, 701-02 (1981))].
the Government claims the fact that no guns were brandished
during the interview is a factor weighing against a finding
of custody. See Street, 472 F.3d at 1309. Courts
have long recognized that brandishing firearms upon entry in
a search warrant execution does not make subsequent
questioning custodial if the weapons are holstered during the
interview. [Id. at 12 (citing Matcovich,
522 Fed.Appx. at 852; United States v. Luna-Encinas,
603 F.3d 876, 881-82 (11th Cir. 2010))]. The
Government maintains that the ambiguity of whether after the
protective sweep the shotgun remained visible during
Defendant's interview should be construed in its favor
since it is Defendant's burden to prove that she was in
custody. [Id. at 13 (citing Blocker, 2016
WL 3281018, at *17)].
Government also contends that the questioning was not
lengthy, since the interview lasted two hours, citing T16-17,
54, 56; and noting that courts have had cases last much
longer than that, upwards of seven hours, but yet still find
that the defendants in those cases were not in custody. [Doc.
42 at 13 (citing Howes v. Fields, 565 U.S. 499, 515
(2012); United States v. McDowell, 250 F.3d 1354,
1363 (11th Cir. 2001); Muegge, 225 F.3d
at 1269, 1271)]. The Government also indicates that Defendant
took a break during the interview, and chose to stay and be
re-interviewed when Agent McCree came back with the
undercover video. [Id. at 13-14]. It also submits
that the agents not touching Monica or using an aggressive
tone to compel her compliance also lead to a conclusion that
this was not a custodial interrogation. [Id. at 14
(citing Street, 472 F.3d at 1309;
Luna-Encinas, 603 F.3d at 881)].
the Government contends that the fact that Monica was not
formally arrested after the interview further demonstrates
that she was not in custody. [Id. at 14-15 (citing
Howes, 565 U.S. at 509; Matcovich, 522
Fed.Appx. at 852; United States v. Herron, No.
2:14-CR-23-FtM-38DNF, 2015 WL 867309, at *17 (M.D. Fla. Feb.
4, 2015))]. It submits that the totality of circumstances
shows that Monica was not in custody, and that this interview
was merely routine questioning incident to the execution of a
search warrant, and therefore the agents had no need to read
Monica her Miranda rights. [Id. at 15-16].
Government also contends that Monica voluntarily made her
statements to the agents as evidenced by the lack of any
coercion, physical force, or promises, and her clear
understanding of the agents' questions in this
non-custodial setting. [Id. at 6]. It notes that in
Blocker, the court found that the defendant's
statements were voluntary based on the facts that: (1) the
defendant's intelligence was demonstrated by his computer
science degree; (2) the length of questioning was only two to
four hours with no indication that the defendant was
unwilling to answer questions; (3) any physical force was
limited to grabbing the defendant to remove him from the
house; (4) the defendant volunteered to assist the agents
during questioning; (5) law enforcement did not communicate
any sort of promises or inducements; and (6) the agents did
not trick or deceive the defendant in any way. [Id.
at 17 (citing Blocker, 2016 WL 3281018 at *19)]. The
Government argues that this case is very similar to
Blocker, in that: Monica's intelligence is
demonstrated by her occupation as a pharmacy assistant, a job
that requires the ability to assist pharmacists and respond
intelligently to patients' questions, [id. at
17]; Monica was only questioned for two hours with an
hour-long break, and she never asked to terminate the
interview nor ever requested an attorney. [Id. at
18]. The Government maintains that she was never physically
touched throughout the interview. [Id.]. The agents
never promised nor threatened Monica. [Id.]. It
additionally argues that there is no evidence that the agents
engaged in any trickery or deceit in approaching her for an
interview. [Id.]. Indeed, the Government points out
that Monica actively assisted the agents during the interview
by volunteering to show agents material in her email account
on the computer. [Id.]. The Government concludes
that in totality the record supports that Monica gave her
statements voluntarily. [Id. at 18].
reply, Monica contends that the familiar setting of the
interview does not matter if it is drowned out by a
police-dominated atmosphere as the case is here. [Doc. 43 at
5]. She argues that the record, including the Memorandum of
Interview, fails to support the Government's assertion
that she was unambiguously advised that she was free to
leave. [Id. at 8]. Monica also contends that she was
a target pursuant to a USDA investigation, [id. at
9], and that a reasonable person under government
investigation would feel compelled to stay for the interview
and watch the content of Agent McCree's video to offer a
rebuttable explanation. [Id.].
voluntariness, Monica argues that the issue of voluntariness
is determined by examining the totality of the circumstances
and the burden is on the Government to establish, that a
statement is voluntary. [Id. at 14-15 (citing
United States v. Lall, 607 F.3d 1277, 1285
(11th Cir. 2010))]. She argues that she was
surprised at her place of employment by agents with a
warrant, where the agents indicated to her before the
interview that she was the focus of their investigation. She
contends that she did not voluntarily participate in this
interview. [Id. at 15].
sur-reply, the Government argues that Monica's assertion
that in order to be a voluntary statement a defendant must
speak to the Government is incorrect. [Doc. 44 at 1]. It
points out that Monica cited no case law in support of this
proposition, and whether she spoke unprovoked by law
enforcement officials is irrelevant in the voluntariness
inquiry. [Id. at 1-2 (citing United States v.
Gonzalez, 71 F.3d 819, 828 (11th Cir.
1996))]. The Government also argues that Defendant is
incorrect in stating that it is relevant in the voluntariness
calculus when the agents told her that if she left the
pharmacy she could not come back until after the search
warrant is complete. [Id. at 2]. The Government
argues that offering the option to stay or leave for good
during the execution of a search warrant should not factor
into whether she was exposed to a coercive setting.
[Id. at 2 (citing Young, 2017 WL 653556, at
*2, 6)]. Finally, the Government argues that Monica's
contention that her interview was involuntary due to her
being the target of the investigation is incorrect because
there will always be coercive aspects to any law enforcement
interview, but that does not mean that conduct is egregious
enough where the interview would be involuntary.
[Id. at 2-3 (citing Oregon v. Mathiason,
429 U.S. 492, 495 (1977))].
motion to suppress raises two issues: (1) whether she was in
custody at the time of the questioning, and thus the agents
were required to advise her of the Miranda warnings
before questioning her; and (2) whether her statements were
made voluntarily, and not the product of coercion by law
Fifth Amendment provides that “[n]o person shall be . .
. compelled in any criminal case to be a witness against
himself.” U.S. Const. Amend. V. Based on this Fifth
Amendment right against self-incrimination, the Supreme Court
adopted a rule in Miranda v. Arizona, 384 U.S. 436
(1966), that “certain warnings must be given before a
suspect's statement made during custodial interrogation
could be admitted in evidence.” Dickerson v. United
States, 530 U.S. 428, 431-32 (2000).
right to Miranda warnings attaches when custodial
interrogation begins.” United States v.
Acosta, 363 F.3d 1141, 1148 (11th Cir. 2004).
Thus, Miranda does not apply “outside the
context of the inherently coercive custodial interrogations
for which it was designed.” Minnesota v.
Murphy, 465 U.S. 420, 430 (1984). A defendant is in
custody for Miranda purposes when “there is a
‘formal arrest or restraint on freedom of movement'
of the degree associated with a formal arrest.”
Maryland v. Shatzer, 559 U.S. 98, 112 (2010)
(quoting New York v. Quarles, 467 U.S. 649, 655
(1984)). “[W]hether a suspect is ‘in custody'
is an objective inquiry.” J.D.B., 564 U.S. at
270; see Street, 472 F.3d at 1309 (holding that the
custody inquiry is an objective standard from the perspective
of a reasonably innocent person). Thus, the actual,
subjective beliefs of the defendant and the interviewing
officer on whether the defendant was free to leave are
irrelevant, and the reasonable person from whose perspective
“custody” is defined is a reasonable innocent
person. United States v. Brown, 441 F.3d 1330, 1347
(11th Cir. 2006) (quotations, citations,
alteration, and emphasis omitted). Therefore, “[a]
policeman's unarticulated plan has no bearing on the
question whether a suspect was ‘in custody' at a
particular time; the only relevant inquiry is how a
reasonable [person] in the suspect's position would have
understood his [or her] situation.” Berkemer v.
McCarty, 468 U.S. 420, 442 (1984).
defendant bears the burden of demonstrating that she was
subjected to custodial interrogation. United States v. de
la Fuente, 548 F.2d 528, 533 (5th Cir. 1978)
(“[I]f a defendant shows that a confession was obtained
while he was under custodial interrogation, the government
then has the burden of proving that the defendant voluntarily
waived his privilege against
self-incrimination.”); see also United States v.
Peck, 17 F.Supp.3d 1345, 1353-54, 1362 (N.D.Ga. 2014)
(Totenberg, J., adopting Baverman, M.J.) (lengthy
discussion that de le Fuente still requires
defendant to first carry the burden in showing he was in
custody and that Miranda warnings are necessary).
The Eleventh Circuit considers several factors in applying
this objective test, “including whether the officers
brandished weapons, touched the suspect, or used language or
a tone that indicated that compliance with the officers could
be compelled.” Street, 472 F.3d at 1309
(internal quotation marks omitted); United States v.
Long, 866 F.2d 402, 405 (11th Cir. 1989);
see also Howes, 565 U.S. at 508 (citations omitted)
(identifying some factors to consider, including location of
the questioning, its duration, the types of statements made
during the questioning, the presence of physical restraints,
and the release of the suspect at the end of the
questioning); Brown, 441 F.3d at 1348-49 (holding
that defendant was not in custody in part because he was in a
familiar setting-his girlfriend's house-and because,
“[a]lthough an officer accompanied him throughout the
house for safety reasons, he was free to eat, smoke, use the
phone, and move about as he wished”).
case, Monica did not establish that she was subject to
custodial interrogation. Here, every factor that courts have
considered in a custody analysis point away from a finding of
custody. “The circumstances before the court fall
outside the Miranda paradigm[, ] that is,
interrogation of a suspect at the police station, or similar
circumstances establishing the functional equivalent of an
arrest requiring Miranda warnings.” United
States v. Toumasian, No. 1:10-CR-0291-TCB-JFK-3, 2011 WL
3798223, at *10 (N.D.Ga. July 19, 2011) (internal citation
and quotation marks omitted), report and recommendation
adopted, No. 1:10-CR-291-TCB-3, 2011 WL 3738980 (N.D.Ga.
Aug. 22, 2011).
the questioning not only occurred at her place of work, but
also in a private office. T11, 33-34. “[C]ourts are
much less likely to find the circumstances custodial when the
interrogation occurs in familiar or at least neutral
surroundings, such as the [defendant]'s home.”
Brown, 441 F.3d at 1348 (alteration and internal
quotation marks omitted); see also Luna-Encinas, 603
F.3d at 882 (same); United States v. Lazarus, 552
Fed.Appx. 892, 894 (11th Cir. Jan. 13, 2014)
(defendant not in custody when interviewed “at a
neutral location, an office at her workplace”);
United States v. Sosa, No. 1:15-cr-20170-KMM, 2015
WL 6751062, at *3 (S.D. Fla. Nov. 5, 2015) (finding no
custody and stating, “The interview took place at
Sosa's place of business, a factor which is particularly
relevant to the custody analysis.”) (citing
Brown, 441 F.3d at 1348); United States v.
Basil, 268 F.Supp. 1018, 1020 (S.D. Fla. 1967) (finding
no custody where defendant was questioned in his own office,
with his wife and employees present on the premises).
the questioning only lasted two hours and over a third of
this time was not spent actually questioning, but just
waiting for the session to proceed again. T54. Similar
periods of questioning have found to not constitute custody
for Miranda purposes. Muegge, 225 F.3d at
1269-71 (two-and-a-half hours); Yarborough v.
Alvarado, 541 U.S. 652, 655-58 (two hours).
the agents told Monica that she was not under arrest and
could leave the premises. T7. The Court finds the agents'
testimony credible on this point despite Bridges not
including it in his Memorandum of Interview.
“Unambiguously advising a defendant that he is free to
leave and is not in custody is a powerful factor in the mix,
and generally will lead to the conclusion that the defendant
is not in custody absent a finding of restraints that are
‘so extensive that telling the suspect he was free to
leave could not cure the custodial aspect of the
interview.' ” Brown, 441 F.3d at 1347
(quoting Muegge, 225 F.3d at 1271). Further, McCree
asked Monica if she would like to be questioned, T10, 15, 16,
and advised her that she was not obligated to speak to them.
T16. Such a statement was found to be proof of no custody in
Matcovich, 522 Fed.Appx. at 852.
the agents did not promise Monica any benefit for answering
questions, nor did they threaten nor physically touch her in
anyway. T53-54. Fifth, Monica was never handcuffed, T55, nor
did the agents ever brandish their weapons at her. T51-53;
see United States v. Moya, 74 F.3d 1117, 1119
(11th Cir. 1996) (“[n]o handcuffs [being]
employed, and no guns [being] drawn” is a factor that
disfavors a finding of custody); see also United States
v. Colon, 579 Fed.Appx. 791, 793-94 (11th
Cir. Sept. 2, 2014) (finding defendant not in custody where
he was interrogated in his home, was told he was not under
arrest and did not have to talk to the agents, ...