FILED
NOT FOR PUBLICATION
MAY 05 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50483
Plaintiff - Appellee, D.C. No. 3:13-cr-00668-WQH-1
v.
MEMORANDUM*
ROBERT KHETHER MCKANY,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted March 9, 2016
Pasadena, California
Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.
Robert Khether McKany appeals the denial of his motions to suppress
evidence relating to his conviction, pursuant to a conditional guilty plea, of two
counts of violating 18 U.S.C. § 2252. McKany also appeals the district court’s
denial of his motion to vacate one of his two convictions, for receipt of child
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pornography and possession of child pornography, on double jeopardy grounds.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse in part, affirm
in part, and remand for further proceedings.
We reverse the district court’s denial of McKany’s motion to suppress his
statements to law enforcement officers during a search of his home. The 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. Before any
interrogation that occurs in a custodial setting, a suspect must be advised of his or
her Fifth Amendment rights as required by Miranda v. Arizona, 384 U.S. 436,
444–45 (1966). The parties do not dispute that Homeland Security officers
interrogated McKany in his home without advising him of his Miranda rights.
The government argues that the officers were not required to advise McKany
of his Miranda rights because he was not in custody at the time of the
interrogation. We disagree. In United States v. Craighead, 539 F.3d 1073, 1083
(9th Cir. 2008), we held that the “benchmark for custodial interrogations in
locations outside of the police station” is whether or not the interrogation occurred
in a “police-dominated atmosphere.” In the present case, the atmosphere was
plainly police-dominated. Officers swarmed into McKany’s home at 6:30 a.m. in
full tactical gear and with guns drawn. In Craighead, there were eight law
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enforcement officers conducting the search; in the present case, eight to ten
officers initially entered the house, and fourteen officers were ultimately involved
in executing the search warrant. See id. at 1085. McKany was handcuffed prior to
the interrogation, and officers had to help him into a pair of pants while he was
handcuffed, since he was not fully dressed. When McKany told the officers that he
needed to use the bathroom, they escorted him to his father’s bathroom and
watched him through the open door. See Craighead, 539 F.3d at 1085–86.
McKany was also isolated from others: his father was not permitted to go inside
when the officers first arrived (although he then left voluntarily), and the officers
closed the door of the bedroom where McKany was being interviewed.
The officers informed McKany that he was free to leave or terminate the
interview, but, as the court in Craighead pointed out, “[i]f a reasonable person is
interrogated inside his own home and is told he is ‘free to leave,’ where will he go?
The library? The police station? . . . . To be ‘free’ to leave is a hollow right if the
one place the suspect cannot go is his own home.” Id. at 1083. In addition,
McKany initially expressed some hesitation about speaking with the officers. The
officer’s advisal that McKany was free to leave occurred in the context of a
fourteen-agent search where McKany was initially handcuffed and his movements
were closely monitored and controlled. Considering the totality of the
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circumstances, a reasonable person in McKany’s position would not have felt free
to leave. See United States v. Brobst, 558 F.3d 982, 995 (9th Cir. 2009). Thus, we
hold that McKany was in police custody at the time of the interrogation. Because
the officers failed to inform McKany of his Miranda rights prior to the
interrogation, the district court erred in denying McKany’s motion to suppress his
statements to the officers.
McKany also argues that the district court should have suppressed evidence
obtained pursuant to a search warrant that provided for a ninety-day window for
officers to search McKany’s computers after imaging. The officer responsible for
searching the computers waited ninety-one and ninety-two days after imaging
McKany’s three computers before requesting an extension of time, which was then
granted. The officers were diligent in executing the search of McKany’s
computers and seeking extensions of the warrants, and McKany has not
demonstrated that he was prejudiced as a result of any violation of Federal Rule of
Criminal Procedure 41. See United States v. Martinez-Garcia, 397 F.3d 1205,
1213 (9th Cir. 2005). In addition, the rule violation does not rise to a
“constitutional magnitude.” Id. Thus, the district court did not err in denying
McKany’s motion to suppress the evidence obtained from McKany’s computers.
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Next, McKany contends that his convictions for possession and receipt of
child pornography violate the Double Jeopardy Clause. See U.S. Const. Amend.
V. The offense of possessing child pornography is a lesser included offense of the
receipt of child pornography, and defendants may not be punished twice when
these offenses are supported by “the same conduct.” United States v. Davenport,
519 F.3d 940, 947 (9th Cir. 2008). Here, McKany pleaded guilty to separate
conduct underlying each charge. Specifically, McKany’s conviction for possession
of child pornography was premised on his possession of at least 180 videos and
2,338 images that were not included in the receipt charge. Because McKany
pleaded guilty, there is no potential uncertainty as to which images or videos
McKany was convicted of possessing. See United States v. Overton, 573 F.3d 679,
695–98 (9th Cir. 2009). The district court did not err in concluding that McKany’s
convictions did not violate the Double Jeopardy Clause.
For the foregoing reasons, we reverse the denial of McKany’s motion to
suppress his statements to the officers during the search of his home. We affirm
the denial of his motion to suppress evidence obtained pursuant to an extended
search warrant, and we affirm the district court’s refusal to vacate one of
McKany’s convictions on double jeopardy grounds. We remand to the district
court for further proceedings consistent with this disposition.
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REVERSED in part, AFFIRMED in part, and REMANDED.
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