United States v. Joseph Martin ( 2018 )


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  •                                                                             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    NOT FOR PUBLICATION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