     Case: 10-50966     Document: 00511630022         Page: 1     Date Filed: 10/12/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 12, 2011
                                     No. 10-50966
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DARYL RAY MCNAIR, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:10-CR-130-1


Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Daryl Ray McNair, Jr., appeals his conviction for
distribution and receipt of child pornography and possession of a computer
containing child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B).
His prosecution arose out of an investigation into a file-sharing network that led
agents to McNair through a username associated with his internet protocol (IP)
address. McNair’s home was searched by FBI agents, during the course of which
he made several admissions regarding his collection, downloading, and trading

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-50966      Document: 00511630022    Page: 2   Date Filed: 10/12/2011

                                  No. 10-50966

of child pornography via the file-sharing network. In addition, a computer
forensics expert recovered thousands of images of child pornography from a
computer and a thumb drive found in McNair’s bedroom, and agents found hand-
drawings of child pornography that McNair admitted making. McNair, now
serving a total term of 240 months in prison, challenges the denial of a motion
to suppress the statements he made during the interview at his home as well as
the sufficiency of the evidence linking him to the child pornography. Finding no
error as to either issue, we affirm.
      With respect to the suppression motion, McNair contends that because he
was in custody when he was interrogated, the admissions he made during the
search of his home were subject to the requirements of Miranda v. Arizona, 384
U.S. 436 (1966). Whether a suspect is in custody is an objective determination
by the district court based on (1) the circumstances surrounding the
interrogation, and (2) whether, given the circumstances, “a reasonable person
[would] have felt he or she was at liberty to terminate the interrogation and
leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). We review the court’s
determination of custody de novo, see United States v. Paul, 142 F.3d 836, 843
(5th Cir. 1998), viewing the evidence in the light most favorable to the prevailing
party, in this case, the government, see United States v. Ibarra, 493 F.3d 526,
530 (5th Cir. 2007).
      Our review of the record satisfies us that McNair’s interrogation was not
custodial for purposes of Miranda. McNair was in his home when the detention
occurred, and an agent testified that McNair was told he was free to leave. We
have held that under such circumstances, a reasonable person does not suffer
the restraints associated with an arrest. United States v. Harrell, 894 F.2d 120,
124-25 (5th Cir. 1990). Further, an agent testified that McNair was told that he
was not under arrest and would not be arrested that day, which also weighs
against a finding of custody. See United States v. Howard, 991 F.2d 195, 200
(5th Cir. 1993). In addition, agents told McNair that it was his decision whether

                                        2
   Case: 10-50966    Document: 00511630022       Page: 3   Date Filed: 10/12/2011

                                   No. 10-50966

to talk to them, and McNair agreed to cooperate and signed a consent form that
allowed agents to use his online identities and passwords.
      Although the initial presence of numerous armed FBI agents wearing raid
vests may have been intimidating, that alone is not enough. See Howard, 991
F.2d at 200. Further, the fact that McNair’s interrogation lasted for almost two
hours does not mean that the interrogation was per se custodial. See Harrell,
894 F.2d at 124 & n.1.       In short, we find no error in the district court’s
determination that McNair was not in custody. See United States v. Crawford,
52 F.3d 1303, 1307-09 (5th Cir. 1995).
      With respect to his sufficiency challenge, McNair contends that there was
no direct or physical evidence linking him with the child pornography, and that
someone else could have gained access to his computer. He also points to his
trial testimony, in which he denied several of the admissions he had made to
agents.
      In reviewing the evidence for sufficiency, we determine whether, “viewing
all the evidence in the light most favorable to the verdict, a rational trier of fact
could have found that the evidence established the essential elements of the
offense beyond a reasonable doubt.” United States v. Villarreal, 324 F.3d 319,
322 (5th Cir. 2003). Although the government asserts that McNair is subject to
a more stringent standard because he raised different sufficiency grounds in the
district court than he does on appeal, we need not resolve this question because
the evidence was sufficient under the ordinary standard, which is “highly
deferential to the verdict.” United States v. Redd, 355 F.3d 866, 872 (5th Cir.
2003) (internal quotation marks and citation omitted).
      McNair was the only person who lived at the residence. The username
that had been used to trade child pornography via the file-sharing network was
traced to McNair’s IP address. A computer forensics expert recovered 3,866
images of child pornography and 39 videos of child pornography from McNair’s
computer hard drive, and 3,167 images of child pornography from the thumb

                                         3
   Case: 10-50966   Document: 00511630022     Page: 4   Date Filed: 10/12/2011

                                 No. 10-50966

drive found in McNair’s bedroom. In addition, agents found hand-drawings of
child pornography in the home.
      McNair’s contention that the pornography could have come from some
outside source is speculative and unsupported by the evidence. In fact, the FBI
forensics expert testified that he found no evidence of any such unauthorized
access. Further, McNair gave detailed statements to agents admitting that he
had saved images of child pornography on his computer and a thumb drive; that
he distributed pornography via the file-sharing network; that the username in
question was his; that a number of images that had been downloaded from his
file-sharing account were his; and that he created the hand-drawings of child
pornography found in the house. Although at trial, McNair broadly denied the
charges and denied having made specific admissions, he also admitted making
several incriminating statements to the agents.
      The jury is responsible for weighing the evidence and making credibility
determinations. See United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006).
When the evidence in this case is viewed “in the light most favorable to the
government with all reasonable inferences and credibility choices made in
support of a conviction,” a rational trier of fact could have found McNair guilty
beyond a reasonable doubt. Redd, 355 F.3d at 872.
      AFFIRMED.




                                       4
