USA v. Michael Dacorta

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13564
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL J. DACORTA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:19-cr-00605-WFJ-CPT-1
____________________
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2 Opinion of the Court 22-13564
Before R OSENBAUM , NEWSOM , and G RANT, Circuit Judges.
PER CURIAM:
Michael J. DaCorta appeals his convictions for conspiracy to
commit wire fraud and mail fraud, in violation of 18 U.S.C. § 1349,
knowingly engaging in an illegal monetary transaction, in violation
of 18 U.S.C. § 1957, and willfully making a false and fraudulent
statement on an income tax return, in violation of 26 U.S.C. §
7206(1).
DaCorta argues that the district court erred by concluding
that he was not in custody when law enforcement interrogated him
for more than two hours without giving him Miranda warnings.1
He also argues that the district court erred by overruling his objec-
tion to the government’s non-pattern jury instruction. DaCorta
further argues that the district court erred by refusing to give his
requested jury instructions. Finally, DaCorta argues that the dis-
trict court erred by denying his motions for a mistrial and curative
instruction.
I.
We review a district court’s denial of a motion to suppress
evidence under a mixed standard, reviewing the court’s fact-finding
for clear error and the application of the law to those facts de novo.
United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006). The
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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22-13564 Opinion of the Court 3
court’s factual findings are construed in the light most favorable to
the prevailing party. Id. “Whether a person was in custody and
entitled to Miranda warnings is a mixed question of law and fact,”
and we review the district court’s factual findings for clear error
and its legal conclusions de novo. United States v. McDowell, 250
F.3d 1354, 1361 (11th Cir. 2001).
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court held that the government may not use statements “stem-
ming from custodial interrogation of the defendant unless it
demonstrates the use of procedural safeguards effective to secure
the privilege against self-incrimination.” 384 U.S. at 444.
A defendant is “in custody” for Miranda purposes when “un-
der the totality of the circumstances, a reasonable man in his posi-
tion would feel a restraint on his freedom of movement . . . to such
extent that he would not feel free to leave.” McDowell, 250 F.3d at
1362 (quotation marks and citation omitted and alterations
adopted). “The test is objective: the actual, subjective beliefs of the
defendant and the interviewing officer on whether the defendant
was free to leave are irrelevant.” Id. A person is “in custody” for
Miranda purposes only when there is a “formal arrest or restraint
on freedom of movement of the degree associated with a formal
arrest.” United States v. Street, 472 F.3d 1298, 1310 (11th Cir. 2006)
(quotation marks and citation omitted).
Here, the district court did not err by denying DaCorta’s
suppression motion because it properly found that he was not in
custody at the time that he made his challenged statements. Under
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4 Opinion of the Court 22-13564
the totality of the circumstances, a reasonable person in DaCorta’s
position would not have felt sufficient restraint such that he was
not free to leave. McDowell, 250 F.3d at 1362.
Although law enforcement instructed DaCorta to stand out-
side while they conducted an initial protective sweep of his home,
DaCorta and his family were not handcuffed, physically restrained,
subjected to harsh language, advised that they were under arrest,
or told that they could not leave their house during this time. He
voluntarily followed the agents back into the house for an inter-
view. Although the agents never explicitly told DaCorta that the
was free to leave, DaCorta agreed to the interview after an agent
told him that he was not under arrest, that he was not obligated to
answer any questions, and that he could end the interview at any
time. See United States v. Brown, 441 F.3d 1330, 1347–48 (11th Cir.
2006). Thus, there was no “restraint on freedom of movement of
the degree associated with a formal arrest,” and DaCorta was not
“in custody” for Miranda purposes. Street, 472 F.3d at 1310.
II.
We review the legal correctness of a jury instruction de
novo, but we defer to the district court on questions of phrasing
absent an abuse of discretion. United States v. Prather, 205 F.3d 1265,
1270 (11th Cir. 2000). We review alleged errors in a jury instruc-
tion “to determine whether the court’s charge, considered as a
whole, sufficiently instruct[ed] the jury so that the jurors un-
der[stood] the issues involved and [were] not misled.” United States
v. Shores, 966 F.2d 1383, 1386 (11th Cir. 1992) (quotation marks and
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22-13564 Opinion of the Court 5
citation omitted). “The district court has broad discretion in for-
mulating a jury charge as long as the charge as a whole is a correct
statement of the law.” United States v. Schlei, 122 F.3d 944, 969 (11th
Cir. 1997) (quotation marks and citation omitted).
“[T]he law is well established that where an indictment
charges in the conjunctive several means of violating a statute, a
conviction may be obtained on proof of only one of the means, and
accordingly the jury instruction may be properly framed in the dis-
junctive.” United States v. Gutierrez, 745 F.3d 463, 473 (11th Cir.
2014) (quotation marks and citation omitted).
Here, the district court did not err by including the govern-
ment’s use of the disjunctive in the final jury instructions. It cor-
rectly advised the jury that, although the superseding indictment
charged DaCorta with conspiracy to commit wire fraud and mail
fraud, it need only find him guilty of one of the means to sustain a
conviction for conspiracy. See Gutierrez, 745 F.3d at 473. The jury’s
obligation to find that DaCorta was guilty of all the offense ele-
ments remained unchanged. Because the government’s jury in-
struction was a correct statement of law, and did not mislead the
jury, the district court correctly overruled DaCorta’s objection.
Schlei, 122 F.3d at 969; Shores, 966 F.2d at 1386. Accordingly, we
affirm as to this issue.
III.
“[A]n appellant abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without
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6 Opinion of the Court 22-13564
supporting arguments and authority.” United States v. Esformes, 60
F.4th 621, 635 (11th Cir. 2023).
Here, DaCorta’s claim that the district court erred by refus-
ing to give his requested jury instructions is raised in a perfunctory
manner. Esformes, 60 F.4th at 635. His argument is composed al-
most entirely of trial transcript excerpts and excerpts from his pro-
posed jury instructions. See id. DaCorta’s lone citation to authority
only informs this Court of the standard of review. Finally, rather
than setting forth developed arguments, DaCorta supports his
claim with only a single conclusory sentence, which states that his
requested instructions “accurately stated the law, provided helpful
and relevant guidance to the jury, and clarified the application of
the court’s instructions to the particular factual matters that arose
during trial.” Accordingly, DaCorta has abandoned his argument.
IV.
Esformes’s abandonment standard governs this issue as well.
Here, DaCorta’s claim that the district court erred by denying his
motions for a mistrial and curative instruction is, again, raised in a
perfunctory manner. Id. Again, his argument is comprised almost
entirely of trial transcript excerpts. His lone citation to authority—
again—gives us only the standard of review. Finally, his only sup-
porting argument is—again—a single conclusory sentence, which
states that the district court abused its discretion by denying his re-
quest for a curative instruction, after a government witness made
a comment to the jury that was “gratuitous” and “inflammatory.”
Accordingly, DaCorta has abandoned his argument.
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22-13564 Opinion of the Court 7
AFFIRMED.
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