                                                                            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                           NOT FOR PUBLICATION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
