                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 17 2009

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-50180

             Plaintiff - Appellant,              D.C. No. 3:08-cr-03366-JM-1

  v.
                                                 MEMORANDUM *
BRADLEY JOHN DIERKING,

             Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Southern District of California
                    Jeffrey T. Miller, District Judge, Presiding

                     Argued and Submitted December 9, 2009
                              Pasadena, California

Before: THOMPSON and SILVERMAN, Circuit Judges, and BOLTON, **
District Judge.

       The government appeals the district court’s order granting Bradley

Dierking’s motion to suppress his confession. We have jurisdiction under 18

U.S.C. § 3731. In accordance with that provision, the government certified that


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Susan R. Bolton, District Judge, sitting by designation.
                                         -2-
this appeal was not taken for purpose of delay and that the evidence suppressed

constituted substantial proof of a fact material to the proceeding. The certification

was signed by an Assistant United States Attorney as “Acting United States

Attorney.” Because someone other than the United States Attorney signed the

certificate, it should have been accompanied by documentation establishing that

person’s authority to sign on behalf of the United States Attorney. United States v.

Wallace, 213 F.3d 1216, 1219 (9th Cir. 2000).

       The government’s noncompliance with the certification requirement does

not deprive the court of jurisdiction. United States v. Gantt, 194 F.3d 987, 997

(9th Cir. 1999). The government has supplemented the record with documentation

proving that the AUSA had authority to sign on behalf of the United States

Attorney at the time he filed the notice of appeal. “[T]hough the government’s

oversight has led to a considerable waste of judicial resources, the defendant has

suffered no prejudice.” Id. Dismissal is therefore unwarranted. At oral argument,

AUSA Bruce R. Castetter assured the court that his office has rectified this

problem and that it will not happen again. With that understanding, we are content

to leave it at that.

       Turning to the custody determination, Dierking was not subject to “‘formal

arrest or restraint on freedom of movement’ of the degree associated with a formal
                                         -3-
arrest.” United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir. 2004) (en banc)

(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). At the

time Dierking confessed, the agents had assured him on three separate occasions

that he was not under arrest, that they would not arrest him that day, and indeed

they did not. See id. at 1059. Dierking demonstrated that he knew he was not in

custody when he asked the agents if anything he might say would result in his

arrest that day.

      Dierking did not face anywhere near the degree of restraint and isolation

faced by the suspect in United States v. Craighead, 539 F.3d 1073, 1085–87 (9th

Cir. 2008). The agents ensured that Dierking was dressed and Dierking got

himself a glass of water from his kitchen before the interview started. Only then

did the agents ask Dierking if he wanted to sit at his kitchen table, where the

interview began. The evidence does not support the district court’s finding that the

agents “told” Dierking where to sit. Nor was he isolated in a storage room with the

door blocked by an agent, as had happened in Craighead. Id. at 1078. No agents

blocked him from retreating outside his apartment or to elsewhere in the apartment

where he could be by himself. The agents repeatedly explained that he was free to

obtain a lawyer if he wanted one.
                                           -4-
      Significantly, there is no contention whatsoever that Dierking’s confession

was involuntary or anything other than entirely consensual. The record clearly

shows that there was nothing oppressive, coercive, deceptive, or overbearing in the

agents’ questioning. See United States v. Bassignani, 575 F.3d 879, 884 (9th Cir.

2009). To the contrary, the tone of the conversation was friendly and cordial. A

reasonable innocent person under the circumstances would have felt free to

terminate the questioning, Craighead, 539 F.3d at 1082, so Dierking was not in

custody and the need for Miranda warnings did not attach. Thus, the district court

erred in suppressing the confession.

      The district court did not address the parties’ arguments regarding the

validity of the warrant. We therefore remand for the district court to consider the

validity of the warrant in the first instance.

      REVERSED and REMANDED.
