USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 1 of 14
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10208
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERALD SELLS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cr-00076-JB-B-1
____________________
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 2 of 14
2 Opinion of the Court 21-10208
Before NEWSOM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Jerald Sells appeals his convictions for aggravated sexual
abuse of a minor and transportation of a minor with intent to en-
gage in criminal sexual activity.
On April 12, 2019, Sells’s daughter, Maya, 1 arrived at her
middle school upset and crying. After speaking with Maya about
why she was upset, a school counselor called the Mobile County
Sheriff’s Office. Detective Sheffield responded to the call and spoke
with Maya in private. Maya disclosed to him that Sells had sexually
abused her. Sheffield then went to Sells’s house. He met Sells in
the front yard and Sells, who was already aware of the allegations,
allowed Sheffield into the house. Sells was not placed under arrest
at that point and was told he was free to terminate the conversation
at any time. Sheffield also informed Sells of his rights under Mi-
randa v. Arizona,
384 U.S. 436 (1966). When Sells mentioned need-
ing a lawyer, Sheffield ended their conversation.
A few days later, Sells called Sheffield and said that he
wanted to make a statement. Sheffield reiterated to Sells that any
statement would be voluntary, Sells did not have to make a state-
ment, and Sells would still have his Miranda rights. Sheffield met
with Sells the next day, April 25, at Sells’s house. Sheffield read
1 To protect the child’s identity, we don’t use her real name here.
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 3 of 14
21-10208 Opinion of the Court 3
Sells the Miranda warnings, Sells signed a Miranda waiver, and
then they talked about Maya’s allegations, which Sells denied. At
the end of their conversation, Sheffield offered Sells the oppor-
tunity to take a voluntary polygraph examination—to help “prove
his innocence”—which Sells later agreed to take.
On May 15, Sells voluntarily traveled to the police station to
undergo a polygraph test. After arriving at the station, Sells signed
yet another Miranda waiver form indicating that he had read and
understood his rights. He then underwent a recorded pre-poly-
graph interview conducted by Sergeant Gomien. Sells “was repeat-
edly assured that the interview was voluntary.”
During that interview, Sells admitted that he had sexually
abused his daughter. We will spare the details other than to say
that Sells’s account was, for the most part, consistent with what
Maya had previously revealed to Sheffield. Afterwards, Sells was
left in the interview room, unrestrained for about 40 minutes, be-
fore Gomien returned and told Sells that Sheffield wanted to talk
to him. Gomien then walked Sells to another room where Shef-
field interviewed him again. Sheffield did not re-Mirandize Sells
before interviewing him. And Sells made additional incriminating
statements. After the interview Sheffield arrested Sells.
A federal grand jury returned a two-count indictment
against Sells, charging him with aggravated sexual abuse of a child,
in violation of
18 U.S.C. § 2241(c), and transportation of a minor
with intent to engage in criminal sexual activity, in violation of
18
U.S.C. § 2423(a).
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 4 of 14
4 Opinion of the Court 21-10208
Before trial, Sells moved to suppress the incriminating state-
ments he made to law enforcement, alleging that they were ob-
tained in violation of the “Fourth Amendment” and were made in-
voluntarily, unknowingly, and unintelligently. Specifically, Sells
argued that he requested an attorney during the April 12 interview
but was never provided one and, additionally, that his inculpatory
statements were involuntary because they were induced by prom-
ises of family counseling made by Gomien on the condition that
Sells admit to criminal activity with his daughter. The district court
denied his motion, concluding that his confession was voluntary
and that the interviews were non-custodial, but that even if they
had been custodial—and therefore subject to Miranda—Sells had
knowingly and voluntarily waived his Miranda rights.
At trial, the district court prohibited Sells from cross-exam-
ining Gomien regarding whether Gomien’s statements about the
potential for family counseling induced an involuntary confession.
The district court held that it had already determined the legal
question of inducement in denying Sells’s motion to suppress and
that Sells was not entitled to re-litigate the voluntariness issue be-
fore the jury.
On appeal, Sells makes two arguments. First, he argues that
the district court erred by denying his motion to suppress the in-
culpatory statements he made to Gomien and Sheffield. Second,
he argues that the district court abused its discretion by limiting his
cross-examination of Gomien, thereby denying him the
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 5 of 14
21-10208 Opinion of the Court 5
opportunity to introduce evidence that his inculpatory statements
were made involuntarily. We address each claim in turn.2
I
We start with whether the district court erred in denying
Sells’s suppression motion. Sells contends that his confession was
made in violation of Miranda and that his confession was involun-
tary.
Miranda protects a defendant’s Fifth Amendment right
against self-incrimination by requiring law enforcement officers to
advise a person subject to custodial interrogation of certain rights
and to respect the person’s invocation of those rights. United States
v. Woods,
684 F.3d 1045, 1055 (11th Cir. 2012). But Miranda ap-
plies only to situations of custodial interrogation.
Id. Whether an
2 We review the denial of a motion to suppress as a mixed question of law and
fact, with conclusions of law reviewed de novo and findings of fact reviewed
for clear error. United States v. Ross,
964 F.3d 1034, 1039 n.2 (11th Cir. 2020),
cert. denied,
141 S. Ct. 1394 (2021). We construe facts in the light most favor-
able to the party that prevailed in the district court.
Id. The admission of
statements in violation of Miranda is subject to harmless error review. United
States v. Arbolaez,
450 F.3d 1283, 1292 (11th Cir. 2006). The question is
whether there is a reasonable possibility that the complained-of evidence
might have contributed to the conviction.
Id. This determination requires an
inquiry into the effect of the erroneously admitted statement upon (1) the
other trial evidence and (2) the conduct of the defense.
Id. at 1293. The vol-
untariness of a confession is a question of law that we review de novo. See
United States v. Farley,
607 F.3d 1294, 1326 (11th Cir. 2010). An erroneous
admission of a coerced confession can be harmless error. Arizona v. Ful-
minante,
499 U.S. 279, 295 (1991).
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 6 of 14
6 Opinion of the Court 21-10208
interrogation was “custodial” is based on the totality of the circum-
stances, and courts look to whether an objectively reasonable per-
son in the defendant’s position would have felt a restraint on his
freedom of movement to such an extent that he would not have
felt free to leave. United States v. Brown,
441 F.3d 1330, 1347 (11th
Cir. 2006). We have stated that “the actual, subjective beliefs of the
defendant and the interviewing officer on whether the defendant
was free to leave are irrelevant.”
Id. (quotation omitted). “Under
the objective standard, the reasonable person from whose perspec-
tive ‘custody’ is defined is a reasonable innocent per-
son.”
Id. (cleaned up).
In determining whether a person in the defendant’s position
would have felt free to leave, relevant factors include the location
and length of the questioning; whether the officers brandished
weapons, touched the defendant, or used language or a tone indi-
cating that compliance with their orders could be compelled; state-
ments made during the interview; the presence of physical re-
straints during questioning; and the interviewee’s release at the end
of the questioning. Howes v. Fields,
565 U.S. 499, 509 (2012);
United States v. Luna-Encinas,
603 F.3d 876, 881 (11th Cir. 2010).
The Supreme Court has stated that an officer’s suspicions regard-
ing a suspect “may bear upon the custody issue if they are con-
veyed” to the suspect. Stansbury v. California,
511 U.S. 318, 325
(1994). However, “[e]ven a clear statement from an officer that the
person under interrogation is a prime suspect is not, in itself,
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 7 of 14
21-10208 Opinion of the Court 7
dispositive of the custody issue, for some suspects are free to come
and go until the police decide to make an arrest.”
Id.
Here, several of the relevant factors support the conclusion
that Sells was not in custody during the May 15 interviews at the
sheriff’s office. Sheffield explained to Sells that he was not required
to take a polygraph examination, and Sells voluntarily arrived at
the sheriff’s office to participate in an examination with Gomien.
Sells sat in a chair next to the door and was left alone in the room
with the door open for about 12 minutes before the interview be-
gan, was not restrained, was informed that he could refuse the pol-
ygraph or stop it at any time, and was allowed to leave for bath-
room breaks—all of which demonstrate that there was no restraint
on his freedom of movement and that his compliance could not be
compelled. See Howes,
565 U.S. at 509; Luna-Encinas,
603 F.3d at
881. And Sells, in fact, left the room for a bathroom break and was
left alone with the door open for about four minutes when he re-
turned, further indicating that there was no restraint on his free-
dom during the pre-polygraph examination. Gomien was not
wearing a gun or handcuffs, did not arrest Sells at any point during
or after the pre-polygraph interview, and testified that Sells was
free to leave after the interview. Luna-Encinas,
603 F.3d at 881.
Moreover, Sells was again left alone in the room with the door par-
tially closed for about 40 minutes between the pre-polygraph inter-
view and the subsequent interview with Sheffield, during which
time he was still unrestrained. During his interview with Sheffield,
Sells remained unrestrained and moved freely about the interview
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 8 of 14
8 Opinion of the Court 21-10208
room. And Sheffield never placed Sells under arrest during the in-
terview or gave Sells any indication that he was prohibited from
leaving. Sheffield arrested Sells only after the interview.
Even if Sells was in custody, he knowingly waived his Mi-
randa rights prior to making the inculpatory statements. A defend-
ant may waive his Miranda rights if the waiver is made voluntarily,
knowingly, and intelligently. United States v. Bernal-Benitez,
594 F.3d 1303, 1318 (11th Cir. 2010). The waiver must be made
with full awareness of the nature of the rights being waived and the
consequences of that decision.
Id. A court may conclude that a
person waived his Miranda rights only if the totality of the circum-
stances demonstrates both a free choice and the requisite level of
comprehension.
Id. Here, Gomien advised Sells of his Miranda
rights, and Sells executed a Miranda waiver form prior to question-
ing about Maya’s allegations. And Sells does not argue that his Mi-
randa waiver prior to the pre-polygraph interview was invalid.
Sheffield’s failure to reiterate the Miranda warnings before
interviewing Sells did not render Sells’s confession involuntary and
unknowing. We have held that there is no requirement that a sus-
pect be continually reminded of his Miranda rights once he has in-
telligently waived them. Biddy v. Diamond,
516 F.2d 118, 122 (5th
Cir. 1975) (collecting cases and concluding that a re-administration
of the Miranda warnings would have been “needlessly repetitious”
where the defendant was fully warned during a prior contact with
law enforcement 12 days earlier); Ballard v. Johnson,
821 F.2d 568,
571–72 (11th Cir. 1987) (concluding that re-administration of
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 9 of 14
21-10208 Opinion of the Court 9
Miranda warnings was not required where there was a same-day
break in questioning during which the defendant was transported
from a local police station to the county sheriff’s office); United
States v. Barner,
572 F.3d 1239, 1244–45 (11th Cir. 2009) (holding
that, because the defendant had earlier been advised of his Miranda
rights, there was no need to reiterate the Miranda warnings 12 days
later at a subsequent interview that he initiated).
The approximately 40 minutes between the interview with
Gomien and the interview with Sheffield is significantly shorter
than the time periods of up to 7 or 12 days that this Court has up-
held as not requiring new or reiterated Miranda warnings. See
Biddy,
516 F.2d at 122; Martin v. Wainwright,
770 F.2d 918, 930–31
(11th Cir. 1985), opinion modified in unrelated part on denial of
reh’g,
781 F.2d 185 (11th Cir. 1986). Based on the totality of the
circumstances, the district court did not err in finding that Sells re-
mained aware of his Miranda rights when he spoke with Sheffield.
Even though the interviews did not violate Miranda, we
must determine whether Sells’s confessions were voluntary.
United States v. Lall,
607 F.3d 1277, 1285 (11th Cir. 2010). The de-
termination of a confession’s voluntariness also requires an exami-
nation of the totality of the circumstances and ultimately requires
an inquiry into whether the statement was “the product of an es-
sentially free and unconstrained choice.” Hubbard v. Haley,
317 F.3d 1245, 1252–53 (11th Cir. 2003) (quotation marks omitted).
We consider a number of factors, and the presence of one alone is
not determinative.
Id. at 1253. The relevant factors include “the
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 10 of 14
10 Opinion of the Court 21-10208
defendant’s intelligence, the length of his detention, the nature of
the interrogation, the use of any physical force against him, or the
use of any promises or inducements by police.”
Id.
The district court correctly found that Sells’s inculpatory
statements were voluntary. Contrary to Sells’s contention, the rec-
ord, when viewed in the light most favorable to the government,
does not support a conclusion that Sheffield misrepresented to him
that passing a polygraph examination would prove his innocence
in court. See Lall,
607 F.3d at 1285–86. Rather, Sheffield told Sells
that a polygraph would be an easy way to convince everybody in
his office that Sells was innocent. 3 Additionally, Sells was not im-
properly induced by Gomien’s statements as to family counseling.4
During the pre-polygraph interview, Gomien stated that
3 Even if Sheffield’s statements misled Sells regarding the admissibility and
helpfulness of polygraph evidence, those statements were harmless because
Sells never actually took the polygraph test. Sells confessed while being inter-
viewed by Gomien before Gomien started administering the test. And Sells
made statements during his interview with Sheffield demonstrating that he
knew he was confessing—not proving his innocence. For instance, Sells
stated: “I was raised up never to lie . . . and I knew the truth was probably
going to end up coming out . . . I’m sorry I lied to you in the first place because
I was scared . . . and I didn’t realize it was ever going to turn into something
like this.”
4Even if Sells was misled by Gomien’s statements, misrepresentations of fact
by law enforcement are generally insufficient to undermine the voluntary na-
ture of a confession. See Frazier v. Cupp,
394 U.S. 731, 739 (1969). Unlike in
Lall, where the police assured the defendant his statements wouldn’t be used
against him, Gomien never made any such promise. Lall,
607 F.3d at 1285–
86.
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 11 of 14
21-10208 Opinion of the Court 11
counseling was a possibility. But, Gomien did not make any prom-
ises to Sells during the interview, regarding family counseling or
otherwise.
Moreover, Sells knew that he was being interviewed about
sexually abusing his daughter, he had a GED education level, was
not detained, was free to refuse cooperation or stop the interview
at any time, and no physical force was used against him—all of
which weigh in favor of finding his confession voluntary. See Hub-
bard,
317 F.3d at 1252–53.
* * *
In sum, the district court did not err in denying Sells’s mo-
tion to suppress. Sells was not in custody when he made incrimi-
nating statements to police officers. Further, even if Sells had been
in custody, he knowingly waived his Miranda rights prior to mak-
ing inculpatory statements. Moreover, based upon the totality of
the circumstances, Sells’s statements were voluntary.
II
We next address whether the district court erred in limiting
Sells’s cross examination of Gomien. Normally, we review chal-
lenges to the district court’s rulings on the admission of evidence
for an abuse of discretion. United States v. Jiminez,
224 F.3d 1243,
1249 (11th Cir. 2000). However, when a party raises a claim of ev-
identiary error for the first time on appeal, we review it only for
plain error. United States v. Jernigan,
341 F.3d 1273, 1280 (11th Cir.
2003). Under plain-error review, we may correct an error where
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 12 of 14
12 Opinion of the Court 21-10208
(1) an error occurred; (2) it was plain; (3) it affected substantial
rights; and (4) it “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.”
Id. (quotation omitted).
In Lego v. Twomey, the Supreme Court noted that a de-
fendant is free “to familiarize a jury with circumstances that attend
the taking of his confession, including facts bearing upon its weight
and voluntariness,” and that the jury may choose to “disregard con-
fessions that are insufficiently corroborated or otherwise deemed
unworthy of belief.”
404 U.S. 477, 485–86 (1972). However, it es-
tablished that once a district court has determined the voluntari-
ness of a confession, it needn’t allow the defendant to relitigate the
issue at trial.
Id. at 489–90.
Here, the district court did not abuse its discretion in limit-
ing Gomien’s testimony as to the voluntariness of Sells’s inculpa-
tory statements. The voluntariness of Sells’s confession was a
purely legal question that the district court was entitled to decide.
See Crane v. Kentucky,
476 U.S. 683, 688 (1986). And because the
district court had already ruled on the confession’s voluntariness
when it denied Sells’s pretrial motion to suppress, Sells was not per-
mitted to relitigate the voluntariness of his confession at trial. See
Lego,
404 U.S. at 489–90.
In Crane, the Supreme Court held that evidence regarding
the circumstances under which the police obtained a defendant’s
confession could be submitted to the jury even though the trial
court had already determined that the confession was voluntary.
476 U.S. at 690. It stated that because this evidence bears on the
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 13 of 14
21-10208 Opinion of the Court 13
reliability and credibility of the confession, the jury should hear it.
Id. at 688. Although the voluntariness of a confession is a purely
legal question, the Court reasoned that “[c]onfessions, even those
that have been found to be voluntary, are not conclusive of guilt.”
Id. at 689. The Supreme Court explained that
regardless of whether the defendant marshaled the
same evidence earlier in support of an unsuccessful
motion to suppress, and entirely independent of any
question of voluntariness, a defendant’s case may
stand or fall on his ability to convince the jury that the
manner in which the confession was obtained casts
doubt on its credibility.
Id.
Thus, Sells was permitted to present evidence to the jury as
to the manner in which Gomien obtained his confession because
that might have borne on its weight, credibility, and accuracy.
Lego,
404 U.S. at 485–86; Crane,
476 U.S. at 689. But, in the district
court, Sells objected only to the limitation of Gomien’s testimony
as it related to the voluntariness of his confession, not as it related
to the credibility of his confession. Doc. 146 at 6–7 (Sells requested
to cross examine Gomien to “address the voluntariness of [Sells’s]
confession with the jury”). And the offer of proof that Sells made
while questioning Gomien outside of the jury’s presence went only
to the voluntariness of his confession, not its credibility. Plain-error
review applies because Sells did not object to the exclusion of evi-
dence bearing on the weight and accuracy of his confession that
USCA11 Case: 21-10208 Date Filed: 12/20/2021 Page: 14 of 14
14 Opinion of the Court 21-10208
would cast doubt on its credibility. See Jernigan,
341 F.3d at 1280.
The district court’s decision wasn’t plain error.
Moreover, in light of Maya’s trial testimony and the other
evidence admitted by the government at trial—including a video
recording of the interviews—the proffered testimony was “unim-
portant in relation to everything else the jury considered” and
therefore harmless. United States v. Pon,
963 F.3d 1207, 1227 (11th
Cir. 2020); see also United States v. Roy,
855 F.3d 1133, 1178 (11th
Cir. 2017) (en banc). Evidence of overwhelming guilt cuts against
a finding that an error was constitutionally harmful. Pon, 963 F.3d
at 1227. Even though the district court did not permit Sells to cross-
examine Gomien about inducing Sells’s confession, the jury had
the opportunity to listen to interactions between Sells and Gomien
and observe their demeanors during the pre-polygraph interview
when weighing the credibility of Sells’s confession. Any error by
the district court in limiting Gomien’s testimony regarding Sells’s
confession was harmless beyond a reasonable doubt.
* * *
The district court did not abuse its discretion in denying
Sells’s suppression motion. Nor did it commit plain error in refus-
ing to allow Sells to cross-examine Gomien regarding Sells’s con-
fession.
AFFIRMED.
