Category: Your Rights

Reputed Mob Boss Found Not Guilty of Conspiracy

Many ask how they can be charged with an offense that someone else committed. If the government can’t prove that the defendant agreed to commit the criminal act with the other person, a jury may find the accused not guilty. This is what happened in a recent case where an alleged mob boss was recently found not guilty in a Federal racketeering case. The government alleged that the Defendant had conspired with others to commit a variety of crimes. You can read about the case of George Borgesi and his release from custody after 13 years by clicking here

In Federal Court, 18 U.S. Code § 371 creates an offense “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose.” In many conspiracy cases the accused must not only agree to commit the crime, but at least one of the conspirators must commit an overt act to accomplish the crime. This is not always a requirement. Furthermore, there is no requirement that the accused knows of the others involved in the conspiracy.

A conspiracy is often confused with aiding and abetting. 18 U.S. Code § 2 defines aiding and abetting as “ (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” With aiding and abetting there is no requirement that an agreement to commit the crime was reached between the accused and the actor. In such a case, if a defendant counseled, gave advice on how to commit the crime or assisted in the completion of the crime, the defendant is may be charged as though the defendant committed the actual crime.

Conspiracy as well as aiding and abetting charges may seriously effect how to best prepare a defense for your trial. Be certain to retain a lawyer to assist you with these charges. Contact Attorney Patrick Flanagan at 651-200-3484 or at if you have questions about your criminal case.

“I Can’t Drive 55” – Sammy Hagar

After a person is stopped for speeding, people will often wonder how the ticket will effect their driver’s license and insurance rates.  The Honorable Alan F. Pendleton, Judge of the 10th Judicial District in Minnesota, put together a nice chart that explains when a speeding ticket will go on your record in Minnesota.

In Minnesota, if you are in a 55 mile an hour speed zone and you are not going 10 miles per hour over the speed limit, then your ticket should not appear on your record.

Click below to read the entire chart:

I can’t drive 55

When is a Juvenile Certified as adult?

imagesParents and children under the age of 18 are surprised when they find out a person under the age of 18 can go to trial as an adult for a crime.  So, when may a juvenile be required to appear in adult court for trial?  The court may order that a juvenile who was age 14 or older at the time of the offense and who is charged with certain felonies, be certified as adult and tried in adult criminal court.

Juveniles convicted of an offense in adult court receive adult sentences. Juveniles charged with first degree murder, who were age 16 or 17 at the time of the offense, are required by Minnesota Statutes to be certified as adults and sent to adult court.

Below is a summary of a juvenile matter certified as an adult.Click here if you wish to read the entire opinion.

State v. Grigsby (SUP CT, 08-01-2012, A10-1686, Ramsey Co)

Certification, Minnesota Statute Section 260B

Defendant was 15 years of age when had a petition filed against him charging him with Murder in the second degree- Intentional and was certified to stand trial as an adult. The Complaint was then amended to include Murder in the second degree Felony Murder. Defendant was found guilty of murder in the second degree – Felony murder and manslaughter in the second degree;  and found not guilty of murder in the second degree, Intentional murder. He was sentenced to 180 months.

Defendant appeals on the ground that certification is offense specific. The Defendant argued that charges not included in the certification order cannot be charged in the adult court proceeding. The Supreme Court rejects this argument and says the juvenile court certifies proceedings and those proceedings include offenses not mentioned in the certification order.

Defendant also states that he could not be sentenced as an adult for the adult convictions because he was found not guilty of the offense that he was certified as an adult for. The Supreme Court also rejects this position holding that once a juvenile is certified to stand trial in adult court, the juvenile may be sentenced as an adult for any offenses he is convicted of in adult court.

Search warrant needed before searching cell phone contents

The Minnesota Court of Appeals finds that we do have an expectation of privacy for the contents of our cell phones.  This requires law enforcement to obtain a search warrant before looking at our cell phone’s contents.

Click here to read the case in its entirety.

State v Barajas (Minnesota Court of Appeals, 07-23-2012, A11-0983, Clay Co)

The Police went to a vacant apartment and found Defendant trespassing on the property.  After search, Police found methamphetamine in the apartment, a cell phone on the kitchen counter and two cell phones on the defendant’s person.   Police took the cell phones and looked at the photographs on the cell phone without first obtaining a search warrant.  After finding the photographs, law enforcement then decided to seek a signed consent to search, a waiver of the search warrant requirement.

At the trial, the prosecution was allowed to introduce photographs taken from the cell phones.  The photographs showed defendant with a lot of money. Defendant was convicted and sent to prison for First Degree possession with intent to sell.

Defendant appealed the decision.  The Court of Appeals decided that Defendant has an expectation of privacy in the contents of the phone.   This does not end the analysis as to whether a search warrant is required.  The Court then considers whether that expectation of privacy is recognized as reasonable by society. The Court analyzes that while the Defendant did not have an expectation of privacy as to himself since he was a trespasser, he still had an expectation of privacy in the concealed contents of the phone.  In other words, the discovery of the telephones does not need a search warrant, but in order to look at the telephone’s contents, a warrant is required.  The Court says a cell phone that conceals its contents is consistent with constitutionally protected containers. Therefore, the police were required to get a search warrant to get the photographs.

The Court then discussed the Consent to search element.  Consent to search is an exception to the warrant requirement. The State argued and the trial court found that the unlawful search of the telephone without a warrant was cured by the consent the Defendant signed. The Appellate court disagreed with the trial court and found that the consent was not freely and voluntarily given in these circumstances.

This is all great news for making the sure the government does not invade our privacy without their actions being reviewed and not allowing the government to violate our 4th amendment Rights.  However, it was not enough for Defendant Barajas to have his conviction overturned, as the Court found there was enough other evidence to convict him.


Insanity Defense for killing wife’s lover

There have been some infamous cases surrounding the insanity defense.  One of the first occurred in 1859 and involved Defendant New York Congressman and Civil War General Dan Sickles, and victim Washington D.C. District Attorney Philip Barton Key, the son of poet Francis Scott Key who wrote the Star Spangled Banner.  The temporary insanity defense worked, Defendant Sickles was found not guilty and applauded by the community at the time for protecting the women from an adulterer the likes of victim Key.  Click here to read the details of this case.

An insanity defense is admitting to the physical act of the crime, but then the defendant asserts they are not responsible for their actions due to mental health problems.  This assertion takes place at the trial to a jury.  Minnesota does not recognize an insanity defense, but instead does allow for a defense of mental illness or deficiency.  There are differences between the two forms of defense.  The burden is on the Defendant to prove the mental illness or deficiency to the jury by a preponderance of the evidence.  The actual defense, if the case goes to trial, and notice requirements are noted in Criminal Rules of Procedure 9.02, subd. 1(5).

Minnesota Rule of Criminal Procedure 20.01 and 20.02 cover acts the defendant claims are the result of mental health issues.  Rule 20.01 covers whether a person is competent to participate in the proceedings, or assist in their defense. If a person is not competent to proceed and the case is a felony or gross misdemeanor, the case is then stayed for a period of time to see if competency is restored.  If competency is restored, the case then proceeds to trial.  If competency is not restored, the government must file a motion within the time lines prescribed to extend the commitment of the Defendant pursuant to the rule.  Rule 20.01, is about whether the case can proceed.

Rule 20.02, addresses the issue of proceeding to trial on the defense of mental illness or deficiency.  This rule covers the medical examination reports and the commitment proceedings if a person is found not guilty by mental illness or deficiency.

If you have any questions as to how mental illness is addressed in our Courts, please give me a call at 651-200-3484


Former wrongfully Convicted Inmate creates Foundation to help other wrongfully convicted inmates

In 2012 Jeff Deskovic was released from prison after serving 15 years for a crime he did not commit.  Mr. Deskovic reached an $8 million dollar settlement for his wrongful incarceration against the State.  Mr. Deskovic then set up a foundation to help other wrongfully convicted inmates.  Click here to read about an inmate Mr. Deskovic’s foundation assisted and caused a Federal Judge to state: “The result is that a likely innocent man has been in prison for over 23 years. He should be released with the state’s apology,” the judge wrote.

Knowledge that you are carrying a gun into a public place required before a conviction

Most people assume that in order to commit a crime the person must have knowledge that their act is criminal.  This criminal intent is known as mens rea in Latin.  Without such knowledge, the crime is essentially strict liability.  Do the act, even if you had no idea that you were committing a criminal act, and you are guilty.    While this does not seem fair, our legislature to show they are tough on crime has created several crimes where knowledge of a certain element is not required for a conviction.  In the Minnesota Supreme Court case of State v. Ndikum, The Court noted that such statutes that do not require criminal intent are disfavored.  Furthermore, where a statute does not specifically exclude criminal intent, then the State is required to prove knowledge of the criminal act with proof beyond a reasonable doubt before a Defendant may be convicted.  Read below for a summary of this case and click here to read the entire opinion.

State v Ndikum (SUP CT, 07-11-2012, A10-1728, Hennepin Co)

Possession of Pistol, Elements, Knowing Possession, MS 624.714

Defendant is an attorney who lawfully purchased a pistol. As instructed, he only carried the pistol between office and home. However, one day he went to court and the pistol was in his briefcase.

At trial, the Defendant said he didn’t know the pistol was in the briefcase.  The Defendant asked for a jury instruction that required the State to prove he had knowledge that the gun was in his briefcase when he brought the brief case to court.

The Trial court granted the jury instruction on the felony count, but refused to give the instruction on the gross misdemeanor count.  After jury deliberations, the Defendant was found not guilty on the felony, but guilty on the gross misdemeanor count.

On appeal, the court of appeals reversed the conviction and the State appealed the reversal to the State Supreme Court.  The Minnesota Supreme Court affirmed the  reversal of conviction. In their Opinion, the Minnesota Supreme Court notes that offenses that do not require no mens rea are disfavored.   (As a side note, Mens Rea means “guilty mind” Latin.  In more common language, As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and willfulness.) In making its decision, The Minnesota Supreme Court also notes that when a statute is silent as to mens rea, as the statute is here, that is not enough to not require mens rea as an element for the State to prove beyond a reasonable doubt at trial.

How do I earn acceptance of responsibility to reduce my federal sentence?

One way to receive a lower sentence in Federal Court is to receive “acceptance of responsibility” from the Court.  Acceptance of responsibility may result in a 2 or 3 level decrease in the sentence guideline calculation.  However, it is important to remember that simply entering a guilty plea does not necessarily mean that the Court will grant the acceptance of responsibility decrease.  See the summary below and link to the complete case on how acceptance of responsibility works in federal sentencing.


United States v. Noel Jackson, No: 09-3433 Western District of


Syllabus: Guilty verdict to two counts of bank robbery and one count of
brandishing a firearm during a crime of violence. Sentenced to 420 months.
Jackson argues procedural err in denial of his request for a two level
reduction for acceptance of responsibility and declining to depart from the
career-offender Guideline. Jackson entered into the plea agreement only on
the morning of trial. The probation who interviewed Jackson for the PSR
testified Jackson denied committing one of the bank robberies.

Held: Affirmed. (1) a defendant is not entitled to the reduction “as a
matter of right” simply because he enters a guilty plea. “The key issue is
whether the defendant has shown a recognition and affirmative
responsibility for the offense and sincere remorse.” United States v.
Wineman, 625 F.3d 536, 539 (8th Cir. 2010). District court did not err in
denying Jackson acceptance credit because evidence showed that Jackson
never fully accepted responsibility for one of the robberies. In his PSR
interview Jackson said he entered his plea “not because he acknowledged his
guilt but because he lacked confidence in his attorney’s trial skills.”
Court also properly considered Jackson’s delay in pleading guilty until the
day of trial after the government had prepared for trial. (2) No appellate
review of a district court’s “denial of a request for a downward departure
unless the district court ‘had an unconstitutional motive in denying his
request’ or failed to ‘recognize[] that it had the authority to depart
downward.’ United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir. 2009).”
Jackson made neither argument. Careful review of the sentencing record
reveals no unconstitutional motive by the district court or failure to
recognize its discretionary authority to depart.


Click here to read the entire opinion

Memorial Day – Thank our service men and women and veterans

Happy Memorial Day.

Be sure to remember our serving military and veterans today. See below for a link to an interview with 107 year old Doughboy William J. Lake who served in World War I. I have also included the Bill of Rights which our service men and women protect every day.

107-year-old William J. Lake, one of several dozen American WWI
William J. Lake, 107, one of several dozen American WWI veterans Richard Rubin interviewed in the last decade. (Source: YouTube)

This is an excerpt from Richard Rubin’s ‘The Last of the Doughboys: The Forgotten Generation and Their Forgotten World War‘, the story of a decade-long odyssey to recover the stories of the forgotten world war.

Rubin interviewed dozens of American World War I veterans for the book, including William J. Lake, a private in the U.S. Army’s 91st (“Wild West”) Division who was drafted in 1917 and served with a machine gun crew in France.

At the time of the interview, in October 2003, Lake was 107; he died in June 2004.

The Last of the Doughboys is being published this week by Houghton Mifflin Harcourt.

Click here to see and read more.

Thank a Veteran today for protecting your Bill of Rights:

The Bill of Rights

Ratified December 15, 1791

Amendment I
Freedoms, Petitions, Assembly
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II
Right to bear arms
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III
Quartering of soldiers
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
Search and arrest
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
Rights in criminal cases
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
Right to a fair trial
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment VII
Rights in civil cases
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VIII
Bail, fines, punishment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
Rights retained by the People
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Amendment X
States’ rights
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Miranda only required for in custody interviews

One thing our Veterans have done for us is to protect our Right to Remain Silent and our Right to An attorney before speaking to the government. In other countries, you really do not have a choice. You will speak to the government, or you will be taken in and forced to speak. The requirement that the government notify you of your right to an attorney arises out of the Miranda warning. However, Miranda is not required every time law enforcement speaks to a suspect. Instead, Miranda is only required for in custody interviews.
In the case below, Mr. Lowen learned that inviting officers in to his home is not an in custody interview requiring Miranda. There are several factors that go into the analysis as to whether the statement is given while in custody. In this case, the Court Ruled that A reasonable person in defendant’s position would have felt at liberty to terminate the interrogation and cause the officers to leave, and, as a result, defendant was not in custody at the time of his interrogation and his statements,
made without Miranda warnings, were admissible.

647 F.3d 863 (2011)
UNITED STATES of America, Appellee,
Edward Joseph LOWEN, Appellant.
No. 10-3668.
United States Court of Appeals, Eighth Circuit.
Submitted: June 15, 2011.
Filed: July 29, 2011.
Katherine M. Menendez, AFPD, argued, Minneapolis, MN, for Appellant.
James Lackner, AUSA, argued, St. Paul, MN, Kevin Ueland, AUSA, on the brief, Minneapolis, MN, for Appellee.
Before LOKEN, BEAM, and GRUENDER, Circuit Judges.

[ 647 F.3d 865 ]

GRUENDER, Circuit Judge.
A jury found Edward Lowen guilty of one count of bank robbery, a violation of 18 U.S.C. § 2113(a). Lowen appeals, and for the reasons that follow, we affirm.
On February 26, 2010, a man wearing aviator-style sunglasses, a baseball cap, white tennis shoes, work-style gloves, and a camouflage jacket entered the First National Bank of Walker in Akeley, Minnesota, and approached teller Janet Sheets. The bank’s surveillance camera footage showed the man hand a duffel bag to Sheets while pointing a gun at her. Sheets testified that the man demanded money and said “I’m not kidding.” Sheets placed approximately $2,525 into the duffel bag from her cash drawer and watched the man exit the bank and drive away in a dark blue Chevrolet Tahoe. Lori Robbins and Joyce Farrington, two other employees on duty that day, provided similar accounts of the robber, describing him as wearing a black baseball cap, aviator-style sunglasses, a camouflage jacket, and white tennis shoes.
Seeking tips as to the robber’s identity, law enforcement released a still image of the robber from the bank’s surveillance camera footage to the media. Tammy Jo Eischens, a woman married to Lowen’s ex-wife’s cousin, viewed the surveillance image in the Park Rapids Enterprise newspaper and informed law enforcement, and later testified at trial, that she recognized the man in the image to be Lowen. Eischens had known Lowen for fifteen years and saw him in person three to four times per year, including two weeks prior to the robbery. Law enforcement officers investigating the robbery also discovered that Lowen was the registered owner of a dark blue Chevrolet Tahoe.
Based on these tips, five law enforcement officers, including Investigator Colter Diekmann and Special Agent Chad Museus, traveled to Lowen’s residence in Park Rapids, Minnesota. Upon arriving, the officers noticed a dark blue Chevrolet Tahoe parked in Lowen’s driveway. Investigator Diekmann and Special Agent Museus approached the residence and knocked on the door, but there was no answer. Soon after, Investigator Diekmann and Special Agent Museus approached a man walking near the road leading to Lowen’s residence, identified themselves as law enforcement investigating a bank robbery, and inquired as to the man’s identity. The man confirmed that he was Lowen. Investigator Diekmann asked Lowen if he would speak with law enforcement, to which Lowen responded that he would. After Lowen allowed the officers into his home, Investigator Diekmann and Special Agent Museus questioned Lowen around his dinner table. Lowen denied owning a camouflage jacket or white tennis shoes and admitted that he was unemployed and having financial difficulties. Officers asked Lowen if they could search the Chevrolet Tahoe and his residence, and Lowen agreed to both. Upon searching the vehicle, officers discovered a dark-colored baseball cap, a pair of work-style gloves, and a pair of aviator-style sunglasses. Upon searching the wooded area near Lowen’s home, they also recovered a pair of white tennis shoes.
Based on this evidence, two of the officers left the premises to obtain a search warrant while another officer read Lowen his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter, Lowen requested the assistance of counsel. Officers executed the search warrant and, from inside of Lowen’s home, seized a photograph of Lowen wearing camouflage clothing, a black fleece duffel bag similar
[ 647 F.3d 866 ]

in appearance to the duffel bag used by the robber to carry the stolen money from the bank, a money order dated March 1, 2010, in the amount of $1,100, and an instruction manual for an air pistol similar in appearance to the weapon used by the robber.
During the investigation that followed, law enforcement officers discovered that, on February 28, Lowen used $1,500 in cash to purchase chips at the Northern Lights Casino in Walker, Minnesota. A casino manager testified that Lowen played blackjack for approximately ten hours on February 28 and March 1. Officers also determined that Lowen had purchased an air pistol on February 15— eleven days before the robbery—at a Wal-Mart store in Park Rapids, Minnesota. The instruction manual recovered at Lowen’s home matched the model Lowen had purchased.
Lowen moved to suppress his statements made during his questioning prior to receiving the Miranda warnings, including his denial that he owned camouflage clothing or white tennis shoes and his admission that he “could use some money.” A magistrate judge1 concluded that Lowen was not in custody at the time of the questioning and recommended denying the motion. The district court2 adopted the magistrate judge’s report and recommendation and denied Lowen’s motion, and Lowen proceeded to trial. At trial, Lowen stipulated that he owed the State of Minnesota $7,713.20. At the conclusion of the Government’s case, Lowen moved for a judgment of acquittal pursuant to Fed. R.Crim.P. 29, and the district court denied the motion. Lowen renewed his motion for judgment of acquittal after the jury was charged, and the district court again denied the motion. The jury found Lowen guilty of one count of bank robbery. The district court sentenced Lowen to 71 months’ imprisonment. Lowen appeals his conviction, challenging the denial of his motion to suppress, the sufficiency of the evidence, and the admission of Sergeant Cory Aukes’s identification testimony.
A. Motion to Suppress
Lowen first argues that the district court should have suppressed the statements he made to Investigator Diekmann and Special Agent Museus because he was in custody and was not advised of his Miranda rights. “Miranda requires that law enforcement agents provide certain prescribed warnings before conducting an interrogation of a suspect who is in custody.” United States v. New, 491 F.3d 369, 373 (8th Cir.2007). “The Supreme Court in Miranda stated that warnings are required when interrogation is `initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'” Id. (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). “When reviewing the denial of a motion to suppress, we review the district court’s factual findings for clear error….” United States v. Muhlenbruch, 634 F.3d 987, 995 (8th Cir.2011). “We review de novo the district court’s legal conclusion that [the defendant] was not `in custody’ at the time of his interview.” Id.
The question “whether a suspect is `in custody’ is an objective inquiry.” J.D.B. v. North Carolina, 564 U.S. ___,
[ 647 F.3d 867 ]

131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011). “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave,” id. (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), “or in this case, to terminate the interrogation and cause the [officers] to leave,” New, 491 F.3d at 373. “Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” J.D.B., 131 S.Ct. at 2402 (quoting Thompson, 516 U.S. at 112, 116 S.Ct. 457); see also United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc).
“Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to `examine all of the circumstances surrounding the interrogation.'” J.D.B., 131 S.Ct. at 2402 (quoting Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). In the instant case, both the parties and the district court relied heavily on the six non-exclusive factors expounded by our court in United States v. Griffin, 922 F.2d 1343 (8th Cir.1990), for evaluating whether an individual is in custody for purposes of Miranda.3 “There is no requirement… that the Griffin analysis be followed ritualistically in every Miranda case.” United States v. Czichray, 378 F.3d 822, 827 (8th Cir.2004). “When the factors are invoked, it is important to recall that they are not by any means exclusive, and that `custody’ cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly.” Id. at 827. “The ultimate inquiry must always be whether the defendant was restrained as though he were under formal arrest.” Id. at 828; see also LeBrun, 363 F.3d at 720.
Lowen asserts that the district court clearly erred when it made certain factual findings regarding the interrogation. Lowen concedes that he was “not physically restrained” but argues that he was “physically controlled” because Investigator Diekmann and Special Agent Museus determined where Lowen would be questioned and “asked him to strike certain poses for photographs.” We disagree. It is undisputed that Diekmann and Museus asked Lowen if he would speak with them and, later, if they could enter Lowen’s home in order to continue their questioning and that Lowen consented to both of these requests. Although Diekmann and Museus questioned Lowen around his dinner table, Lowen was not confined to any portion of his home during the questioning. Also, the record reveals that
[ 647 F.3d 868 ]

Lowen voluntarily agreed to be photographed. Lowen contends that the district court clearly erred when it determined that officers did not use deceptive techniques because Diekmann and Museus never informed Lowen that he was their only suspect. This determination was not clearly erroneous. The record reveals that Diekmann and Museus informed Lowen that they were investigating the robbery of the First National Bank and that his vehicle and physical description matched that of the robber. As such, the district court did not clearly err when determining the factual setting of the interrogation.
Given these circumstances, we conclude that a reasonable person in Lowen’s position would have felt at liberty to terminate the interrogation and cause the officers to leave. Lowen voluntarily acquiesced to Investigator Diekmann’s and Special Agent Museus’s requests to respond to questioning. Only two of the five officers present questioned Lowen, and the questioning occurred in Lowen’s home. “When a suspect is interrogated in the comfort and familiarity of his home, a court is less likely to find the circumstances custodial.” United States v. Axsom, 289 F.3d 496, 502 (8th Cir.2002). Moreover, Lowen’s freedom of movement was not restrained by handcuffs or any other means. The officers also did not confine Lowen during the questioning and did not arrest him upon the completion of the questioning. Diekmann and Museus’ failure to inform Lowen that he was not under arrest is not dispositive, see United States v. Flores-Sandoval, 474 F.3d 1142, 1147 (8th Cir.2007), as the touchstone of our inquiry remains whether Lowen was restrained as though he were under formal arrest, see LeBrun, 363 F.3d at 720.
In light of the totality of the circumstances surrounding Lowen’s questioning, we agree with the district court that Lowen’s freedom of movement was not restrained to the degree associated with a formal arrest. See J.D.B., 131 S.Ct. at 2402. Thus, he was not in custody at the time he made the relevant statements. See United States v. Lawson, 563 F.3d 750, 753 (8th Cir.2009) (determining that the defendant was not in custody because he “was not restrained, he was interviewed in his own home, … he was not physically threatened, and he was interviewed for less than one hour”). Accordingly, the district court did not err when it denied Lowen’s motion to suppress.
B. Motion for Judgment of Acquittal
Lowen also asserts that the district court erred when it denied his motion for judgment of acquittal pursuant to Fed.R.Crim.P. 29, arguing that the Government presented insufficient evidence on which the jury could find him guilty. “We review the denial of a motion for acquittal de novo.” United States v. Donnell, 596 F.3d 913, 924 (8th Cir.2010) (quoting United States v. Thropay, 394 F.3d 1004, 1005 (8th Cir.2005)), cert. denied, 562 U.S. ___, 131 S.Ct. 994, 178 L.Ed.2d 831 (2011). “Where a party challenges the evidence underlying his conviction, the standard of review is very strict, and the jury’s verdict is not to be lightly overturned.” United States v. Finch, 630 F.3d 1057, 1060 (8th Cir.2011) (quoting United States v. Hayes, 391 F.3d 958, 961 (8th Cir.2004)). “In reviewing the sufficiency of the evidence on appeal, the court views the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury’s verdict.” Id. (quoting United States v. Bates, 77 F.3d 1101, 1104-05 (8th Cir.1996)). “[W]e will reverse only if no reasonable jury could have found the defendant guilty beyond a
[ 647 F.3d 869 ]

reasonable doubt.” United States v. Brewer, 624 F.3d 900, 906 (8th Cir.2010) (quoting United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir.2010)), cert. denied, 563 U.S. ___, 131 S.Ct. 1805, 179 L.Ed.2d 670 (2011).
Lowen’s central contention is that the Government failed to present sufficient evidence that he was, in fact, the bank robber because none of the bank tellers was able to positively identify him as the robber, law enforcement did not find the weapon used by the robber or any cash in Lowen’s home, and a number of the articles found in Lowen’s home and vehicle did not match exactly the items worn by the robber. We disagree. Eischens, who had known Lowen for fifteen years and saw Lowen two weeks prior to the robbery, testified that Lowen was the man in the surveillance image. While Lowen contends that Eischens was not credible because she is an employee of the Hubbard County Sheriff’s office and is related through marriage to Lowen’s ex-wife, we have made it clear that a jury’s credibility determinations are “virtually unassailable on appeal,” Brewer, 624 F.3d at 906 (quoting United States v. Nguyen, 608 F.3d 368, 376 (8th Cir.2010)), and “we must presume that the trier of fact resolved any conflicts in favor of the Government,” id. at 906-07 (quoting United States v. Littlewind, 595 F.3d 876, 882 (8th Cir.2010)).
The Government presented additional identity evidence that could lead a reasonable jury to conclude that Lowen was the robber. Lowen’s white tennis shoes, aviator-style sunglasses, work-style gloves, and dark-colored baseball cap all match the attire of the robber described by witnesses. Lowen argues that he “raised substantial questions” regarding whether the clothing worn by the robber matched the clothing recovered from Lowen’s residence and vehicle, but we must assume that the jury resolved these conflicts in favor of the Government. See id. The Government presented to the jury a photograph of Lowen wearing camouflage clothing and a black fleece duffel bag recovered from Lowen’s residence similar in appearance to the duffel bag used by the robber. Moreover, Lowen did not answer truthfully when Diekmann and Museus asked him if he owned camouflage clothing or white tennis shoes. See United States v. Van, 543 F.3d 963, 965 (8th Cir.2008) (“Van’s lie to the police about how long he was in Barthol’s apartment … w[as] additional evidence supporting the jury’s verdict….”). Additionally, the Government presented evidence that Lowen purchased an air pistol similar in appearance to the weapon used in the robbery just eleven days before the robbery occurred and that Lowen spent a total of $2,600 in cash—just $75 more than what the robber stole from the First National Bank—within days of the robbery despite owing more than $7,700 to the state of Minnesota. Finally, the Government showed that Lowen owned a dark blue Chevrolet Tahoe like the vehicle described by witnesses as the one used by the robber to flee the bank. We conclude that the evidence was sufficient for a reasonable jury to conclude that Lowen was guilty of robbing the First National Bank. Consequently, the district court properly denied Lowen’s motion for judgment of acquittal.
C. Admission of Sergeant Aukes’s Testimony
Lowen also argues that the district court abused its discretion by improperly applying Fed.R.Evid. 7014 when it
[ 647 F.3d 870 ]

allowed Sergeant Cory Aukes—a witness called by Lowen—to testify, on cross-examination by the Government, that he believed Lowen “absolutely looks like the person on the videotape.” Sergeant Aukes’s only previous encounter with Lowen was a brief one, while Lowen was in custody awaiting trial. Lowen suggests that the district court abused its broad discretion because Sergeant Aukes had no greater familiarity with Lowen than the jury and had no dealings with the defendant prior to his arrest. See United States v. Cruz, 285 F.3d 692, 700 n. 4 (8th Cir. 2002) (“An identification witness’s testimony must be rationally based on the perception of the witness, and is admissible if there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is the jury.” (internal citations and quotation marks omitted)).
Assuming, without deciding, that it was error to admit Aukes’s testimony, we conclude that the error was harmless. “An error is harmless if we conclude that no substantial rights of the defendant were affected and that the error did not influence or had only a very slight influence on the verdict.” United States v. Tenerelli, 614 F.3d 764, 771 (8th Cir.2010) (quoting United States v. Eagle, 498 F.3d 885, 888 (8th Cir.2007)), cert. denied, 562 U.S. ___, 131 S.Ct. 1589, 179 L.Ed.2d 488 (2011). “An error in admitting testimony may be harmless if the testimony is corroborated by independent sources, or if it amounts to cumulative evidence on matters already before the jury.” United States v. Melecio-Rodriguez, 231 F.3d 1091, 1094 (8th Cir.2000) (per curiam). In this case, as we have discussed, the Government presented ample identification evidence from independent sources, including the testimony of Eischens, who knew Lowen for fifteen years and saw Lowen two weeks before the robbery, as well as the items of clothing discovered at Lowen’s residence that matched the clothing worn by the robber. Thus, we conclude that Sergeant Aukes’s additional identification was cumulative and had no more than a slight influence on the verdict. Accordingly, any error in admitting Aukes’s testimony was harmless.
For the foregoing reasons, we affirm Lowen’s conviction.