United States v. Michael Simon

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0077n.06
Case No. 12-1849
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jan 17, 2013
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
MICHAEL JOHN SIMON, ) DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
_______________________________________ )
BEFORE: BATCHELDER, Chief Circuit Judge; MERRITT and KETHLEDGE, Circuit
Judges.
ALICE M. BATCHELDER, Chief Judge. After the district court denied his motion to
suppress evidence, a jury convicted Michael John Simon of escaping from federal custody in
violation of 18 U.S.C. § 751(a). On appeal, Simon says that the district court erred by denying his
motion to suppress and that the evidence at trial was insufficient to support his conviction. For the
reasons that follow, we affirm.
On May 25, 2011, while Simon was in federal custody under sentence for a federal bank
fraud conviction, the Bureau of Prisons temporarily released him via a furlough transfer. The
Federal Correctional Institute in Elkton, Ohio, gave Simon a voucher for a Greyhound bus ticket so
he could travel from Youngstown, Ohio, to the Renaissance Residential Reentry Center (“halfway
house”) in Detroit, Michigan. Simon’s furlough required that he reach the halfway house by 4:15
PM on May 25, 2011.
No. 12-1849, United States v. Simon
But Simon had other plans, and tried to take a bus to Buffalo, New York, instead of Detroit.
At Simon’s trial, a Greyhound ticket agent from Youngstown testified that Simon presented his
voucher to her and that the voucher had “Buffalo” handwritten on it. When the agent refused to give
Simon a ticket to Buffalo because “Detroit” had already been typed on the voucher, Simon was
displeased, but ultimately took the ticket, boarded the bus, and reached Detroit at approximately 3:45
PM on May 25, 2011.
Simon did not check in at the halfway house by 4:15 PM. Instead, he called the halfway
house and advised the officials there that he would not be reporting as required but instead was going
to defect to Canada. He then went to the Canadian Embassy, but it was closed. So he spent the night
in the lobby of a Marriott Hotel and the next day, May 26, went to the Canadian Embassy again,
where he attempted to submit paperwork seeking “third-country, safe-asylum.” His ultimate purpose
was to seek “citizenship ultimately in Italy, the country of Italy.”
The Embassy officials declined to assist Simon, so he went to his mother’s home and spent
the night; his brother drove him to the halfway house the next day, May 27. Two U.S. Marshals,
Deputies Jason Richter and Amanda Seeger, arrested him there. Richter, with Seeger following in
another vehicle, drove Simon back to the federal courthouse building for questioning. Before the
deputies interviewed Simon at the courthouse, Richter read Simon his Miranda rights and then read
him a waiver of those rights, which Simon subsequently read aloud for himself and signed. Simon
then confessed to having called the halfway house on May 25 to announce that he was defecting to
Canada and that he would not be reporting there as required.
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Simon first argues that the district court erred in denying his motion to suppress his
confession. He alleges that the deputies promised him leniency and that their promises prevent his
waiver from being knowing, intelligent, and voluntary.
“When reviewing the denial of a motion to suppress, we review the district court’s findings
of fact for clear error and its conclusions of law de novo.” United States v. Terry, 522 F.3d 645, 647
(6th Cir. 2008) (citation and internal quotation marks omitted). We determine that a factual finding
is clearly erroneous when we have a “definite and firm conviction that a mistake has been
committed.” United States v. Adams, 583 F.3d 457, 463 (6th Cir. 2009) (citation and internal
quotation marks omitted). And we give great deference to a district court’s credibility
determinations regarding witness testimony. United States v. Hinojosa, 606 F.3d 875, 882 (6th Cir.
2010).
What Simon said during questioning may be used against him if he knowingly, intelligently,
and voluntarily waived his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). In
assessing whether Simon made his waiver knowingly and intelligently,
the relevant question is not whether the criminal suspect [knew] and [understood]
every possible consequence of a waiver of the Fifth Amendment privilege, but rather
whether the suspect [knew] that he [could] choose not to talk to law enforcement
officers, to talk only with counsel present, or to discontinue talking any time.
Adams, 583 F.3d at 467 (alterations in original) (citation and internal quotation marks omitted).
Applying that standard, we conclude that Simon’s claim is not credible. Simon specifically
testified that he felt he understood his Miranda rights, that he read the waiver provision before
signing it, and that he understood he was waiving his rights by signing. But Simon claims that,
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despite the waiver, his confession was involuntary because of the alleged promises of leniency the
deputies made. There are three requirements necessary for finding that the confession was
involuntary: The deputies’ activity must have been objectively coercive, the coercion in question
must have been sufficient to overbear Simon’s will, and the coercion must have been the crucial
motivator in Simon’s decision to confess. See United States v. Miggins, 302 F.3d 384, 397 (6th Cir.
2002). We have said that “a promise of lenient treatment or of immediate release may be so
attractive as to render a confession involuntary.” United States v. Wrice, 954 F.2d 406, 411 (6th Cir.
1992) (emphasis added).
The district court found that the matter came down to a question of credibility; that the
deputies’ testimony – that they had made no promises that Simon would not be prosecuted for escape
and had not acted coercively – was credible; that Simon had been “treated nicely” by the deputies;
and that Simon’s testimony to the contrary reflected, at best, Simon’s misunderstanding of whether
he could or should be prosecuted for escape. After reviewing the record, and according those
findings the deference to which they are entitled, we find no error here. The deputies’ statements
to Simon were not objectively coercive; both deputies denied promising Simon that he would not
be prosecuted; and the district court was entitled to credit the deputies’ testimony over Simon’s
assertions. Even if Simon truly believed he had to sign the waiver to obtain leniency, that belief –
in the absence of objectively coercive action by the deputies – is insufficient. Miggins, 302 F.3d at
397. The district court did not err in denying Simon’s motion to suppress.
Simon’s second argument is that the evidence at trial was insufficient to support his
conviction under 18 U.S.C. § 751(a). We review his claim by asking “whether, after viewing the
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evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979).
The crime of escaping from federal custody, 18 U.S.C. § 751(a), has three elements: “(1) that
the defendant escaped or attempted to escape; (2) from the custody of the Attorney General or his
or her appointed agent . . . ; and (3) that custody was based on . . . conviction of any offense.” United
States v. Maney, 226 F.3d 660, 663-64 (6th Cir. 2000). And while proof of intent or purpose is
unnecessary, the government must prove that the escapee “knew his actions would result in his
leaving physical confinement without permission.” United States v. Bailey, 444 U.S. 394, 408
(1980) (emphasis added). On appeal, Simon challenges only the sufficiency of evidence with respect
to his mental state.
After reviewing the record and Simon’s argument, we conclude that there is sufficient
evidence to support Simon’s conviction and, specifically, to show he acted with knowledge. The
furlough authorization form, which Simon read and signed, indicated that if Simon failed “to remain
within the extended limits of this confinement it shall be deemed an escape from the custody of the
Attorney General punishable” under 18 U.S.C. § 751. And Simon admitted that he knew that failure
to abide by the terms of the furlough would constitute escape. Simon’s awareness of the furlough’s
terms, his attempt to reach Buffalo, his informing the halfway house he intended not to report, and
his meeting at the Canadian Embassy all work together to demonstrate that he knew “his actions
would result in his leaving physical confinement without permission.” Bailey, 444 U.S. at 408.
There is sufficient evidence to support Simon’s conviction.
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For these reasons, we AFFIRM the judgment of the district court.
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