FILED
NOT FOR PUBLICATION
NOV 03 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10405
Plaintiff-Appellee, D.C. No.
1:14-cr-00013-RVM-1
v.
FLOYD MAFNAS MENDIOLA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of the Northern Mariana Islands
Ramona V. Manglona, Chief Judge, Presiding
Argued and Submitted October 20, 2016
Honolulu, Hawaii
Before: WALLACE, FARRIS, and WATFORD, Circuit Judges.
1. The district court properly denied Floyd Mendiola’s motion to suppress
the statements he made during the April 2014 meeting with the FBI. Mendiola was
not in custody during the interview, so there was no need to advise him of his
Miranda rights.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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This court uses five factors to determine whether someone is in custody: “(1)
the language used to summon the individual; (2) the extent to which the defendant
is confronted with evidence of guilt; (3) the physical surroundings of the
interrogation; (4) the duration of the detention; and (5) the degree of pressure
applied to detain the individual.” United States v. Kim, 292 F.3d 969, 974 (9th Cir.
2002) (quoting United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir. 2001)).
While the second and fourth factors arguably favor Mendiola, we conclude that the
other three factors weigh against a finding of custody.
When a suspect voluntarily agrees to meet with police with an understanding
that questioning will ensue, the first Kim factor weighs against a finding of
custody. See United States v. IMM, 747 F.3d 754, 766 (9th Cir. 2014). That is the
situation here. FBI Agent McDoulett testified that he “asked Mr. Mendiola if he
would come to [the FBI] office to listen to some recordings,” and Mendiola
testified that he voluntarily went to the FBI office in response to this request.
Although Mendiola had been admonished to abide by the FBI’s instructions as a
condition of his cooperation, that does not undermine the voluntariness of
Mendiola’s compliance with Agent McDoulett’s request.
Turning to the third Kim factor, Mendiola was in the same conference room
he had been in during previous meetings with FBI agents, so the surroundings were
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familiar. He was not isolated from the outside world: He had access to his cell
phone and access to the door, which was not blocked. We conclude that the
surroundings also weigh against a finding of custody.
As to the fifth Kim factor, the FBI acknowledged that it put pressure on
Mendiola briefly during questioning, but the district court could properly find that
the pressure exerted did not rise to the level associated with detention. Mendiola
was not patted down, handcuffed, or otherwise restrained, and the FBI agents were
wearing plainclothes and had concealed any weapons they were carrying.
Under the totality of the circumstances, we conclude that Mendiola was not
restrained in a way that is associated with a formal arrest, California v. Beheler,
463 U.S. 1121, 1125 (1983) (per curiam), especially when his previous meetings
with the FBI are considered. He testified that he went to these meetings
voluntarily (during which he was told that he was not under arrest) and that on
each occasion he was able to leave freely after the meetings ended.
The Third Circuit’s decision in United States v. Jacobs, 431 F.3d 99 (3d Cir.
2005), is distinguishable. There, Jacobs was told to come to the FBI offices
immediately, and when she asked why, the agent declined to answer. Id. at 106.
The court noted that the pressure Jacobs felt to comply with this order was
increased by the fact that her handler had, over the course of their ten-year
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relationship, paid her for information and used his position to influence the
criminal justice system to help her. Id. When Jacobs arrived at the FBI offices she
had to wait for thirty minutes in a room where suspects are interviewed, processed,
and detained, and then had to leave her five-year-old son in the interview room
while she met with the FBI agent. Id. at 103. Lastly, the court in Jacobs found
that she was questioned in a way that was confrontational and intimidating. Id. at
107. None of those facts is present here.
2. The district court correctly concluded that Mendiola’s statements were
voluntary. His status as a confidential informant cannot be said to have overcome
his will, especially since he was familiar with law enforcement techniques and
testified that he had been advised that his decision to cooperate was voluntary. It is
true, as Mendiola notes, that the FBI promised to inform prosecutors about
Mendiola’s cooperation, but Agent McDoulett made clear that the FBI could not
promise him immunity from prosecution. As a result, this promise did not render
Mendiola’s statement involuntary. See United States v. Leon Guerrero, 847 F.2d
1363, 1366 (9th Cir. 1988). Nor does the fact that Agent McDoulett failed to
inform Mendiola that the FBI had decided to stop using him as a confidential
informant render his statements involuntary. While the agent’s tactics undoubtedly
amounted to deception, we have held that deception does not render a confession
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involuntary. United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993).
Because the agent never promised Mendiola that his statements would not be used
against him, the Third Circuit’s decision in Jacobs is again distinguishable. 431
F.3d at 110.
3. Even though Mendiola has been released from prison and his supervised
release term is set by statute, his challenge to the district court’s refusal to grant
him a reduction for minor role is not moot. See United States v. Montenegro-Rojo,
908 F.2d 425, 431 n.8 (9th Cir. 1990). We conclude that the district court did not
abuse its discretion in denying the reduction. The court permissibly concluded that
Mendiola’s behavior of bringing together the buyer and seller, arranging the price
and location of the buys, and allowing use of his residence for one of the buys, did
not warrant a minor role reduction. The district court incorrectly recited language
from the commentary to U.S.S.G. § 3B1.2 that has since been removed by
amendment, but that language related to the reduction for minimal role and its
removal from the Guidelines does not call into question the district court’s denial
of a reduction for minor role.
AFFIRMED.