FILED
NOT FOR PUBLICATION
APR 09 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10143
Plaintiff-Appellee, D.C. No.
2:14-cr-00678-DGC-1
v.
JOSEPH S. MARTIN, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10147
Plaintiff-Appellee, D.C. No.
2:14-cr-00678-DGC-2
v.
CHRISTOPHER J. HEIKKILA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted January 12, 2018
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: WALLACE, RAWLINSON, and WATFORD, Circuit Judges.
Appellants Joseph Martin (Martin) and Christopher Heikkila (Heikkila)
(collectively, Appellants) appeal their convictions for sexual abuse and abusive
sexual contact.
1. The district court properly determined that Miranda1 warnings were
not warranted because, under the totality of the circumstances, neither Martin nor
Heikkila was in custody when interviewed by military investigators.2 See United
States v. Cazares, 788 F.3d 956, 980 (9th Cir. 2015) (considering “the totality of
the circumstances surrounding the interrogation” in determining whether the
defendant was in custody).
The military investigator informed Martin that he was not under arrest and
that he did not have to answer any questions. Although located in a secure military
installation, the physical surroundings were not otherwise coercive. The military
investigator did not confront Martin with any evidence of guilt or utilize any
pressure or coercive tactics. While the interview was lengthy, Martin voluntarily
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
The record in this case is unsealed to the extent discussed in this
disposition.
2
typed a statement and acknowledged that he understood that he was free to leave at
any time and was not required to answer the military investigator’s questions.
Similarly, Heikkila acknowledged that he never asked to leave, never asked
for the questioning to stop, was informed that he could refuse consent to search his
cellphone, that he was “treated fine during the interview,” and that he answered
questions voluntarily.
2. Martin and Heikkila were not in custody when they consented to the
search of their cellphones. They freely and voluntarily gave consent, and
acknowledged that they understood that they could decline consent and that they
were not under arrest. See United States v. McWeeney, 454 F.3d 1030, 1033-34
(9th Cir. 2006) (“Consensual searches are allowed because it is reasonable for law
enforcement agents to conduct a search after receiving consent. . . .”) (citation
omitted). Under plain error review, there was no Fourth Amendment violation.
See United States v. Diaz, 876 F.3d 1194, 1196 (9th Cir. 2017) (delineating plain
error standard).
3. The district court properly denied Appellants’ motion to suppress
messages obtained from social media accounts pursuant to the Stored
Communications Act (SCA), 18 U.S.C. § 2703. There was no evidence that any of
Appellants’ social media messages were stored on a foreign server. As a result, the
3
territorial reach of the SCA was not at issue. In any event, any error was harmless
because the evidence obtained from Appellants’ cellphones and from their
statements adequately established their involvement. See United States v. Job, 871
F.3d 852, 865 (9th Cir. 2017), as amended (applying harmless error review).
4. The district court did not plainly err in instructing the jury on
co-conspirator liability. The district court properly instructed the jury in
accordance with Pinkerton v. United States, 328 U.S. 640, 646-47 (1946), as well
as 9th Circuit Model Criminal Jury Instruction 8.25. Reversal under plain error
review is unwarranted because Appellants were acquitted of the conspiracy charge
and found guilty only on the substantive counts. See United States v. Plunk, 153
F.3d 1011, 1027 (9th Cir. 1998), overruled on other grounds by United States v.
Hankey, 203 F.3d 1160, 1169 n. 7 (9th Cir. 2000) (observing that “the fact that the
jury rendered a mixed verdict . . . suggests that it reviewed the evidence rationally
and independently”) (citation, alterations, and internal quotation marks omitted).
5. Although the district court utilized the collective term “defendants” in
some of its instructions, the district court specifically instructed the jury of its
obligation to “decide the case of each defendant on each crime charged against that
defendant separately.” This instruction comports with 9th Circuit Model Criminal
Jury Instruction 1.13 and “we presume that jurors follow their instructions.”
4
United States v. Smith, 831 F.3d 1207, 1215 (9th Cir. 2016) (citation omitted).3
AFFIRMED.
3
Martin mentions a challenge to the sufficiency of the evidence supporting
his convictions in his opening brief but fails to provide any supporting arguments.
As a result, he has waived this claim. See Oracle USA, Inc. v. Rimini Street, Inc.,
879 F.3d 948, 957 (9th Cir. 2018) (“[O]n appeal, arguments not raised by a party in
its opening brief are deemed waived.”) (citation and footnote reference omitted).
5