                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 14 2011

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S . CO U RT OF AP PE A LS




                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10004

                Plaintiff - Appellee,            D.C. No. 4:08-cr-01070-RCC-
                                                 CRP-1
  v.

ALLEN MICHAEL DONAHUE,                           MEMORANDUM *

                Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Arizona
                      Raner C. Collins, District Judge, Presiding

                       Argued and Submitted November 2, 2010
                              San Francisco, California

Before: GOULD and CALLAHAN, Circuit Judges, and KORMAN, Senior District
Judge.**

       Defendant-Appellant Allen Donahue appeals the decision of the district

court to deny his motion to suppress incriminating statements he made while in




            *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New Yorµ, sitting by designation.
federal custody. Because the facts are µnown to the parties, we repeat them only as

necessary to explain our decision.

                                         I

      Donahue claims that statements he made while in federal custody were

obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and that the

district court erred when it denied his motion to suppress those statements. We

review de novo a district court's decision to deny a motion to suppress statements

that may have been obtained in violation of Miranda. United States v. Rodriguez-

Rodriguez, 393 F.3d 849, 855 (9th Cir. 2005).

      A waiver of Miranda rights must be voluntary, and it must be µnowing and

intelligent. Cox v. Del Papa, 542 F.3d 669, 675 (9th Cir. 2008). 'Whether the

waiver was voluntary is a mixed question of fact and law, which we review de

novo.' United States v. Amano, 229 F.3d 801, 803 (9th Cir. 2000); accord United

States v. Labrada-Bustamante, 428 F.3d 1252, 1259 (9th Cir. 2005). The crucial

inquiry into voluntariness is whether the police conduct was coercive. Derricµ v.

Peterson, 924 F.2d 813, 818 (9th Cir. 1990). The voluntariness of a waiver

depends on 'the absence of police overreaching, not on 'free choice' in any

broader sense of the word.' Colorado v. Connelly, 479 U.S. 157, 170 (1986).




                                         2
Donahue offers no evidence that he was coerced into waiving his Miranda rights or

that the police overreached.

      Whether a waiver of Miranda rights was µnowing and intelligent is a factual

question that we review for clear error. Amano, 229 F.3d at 803. Donahue

contends that he was so intoxicated on the day of his arrest that he could not fairly

be said to µnowingly and intelligently waive his Miranda rights and that his

confession was not 'the product of a rational intellect and a free will.' Gladden v.

Unsworth, 396 F.2d 373, 380-81 (9th Cir. 1968). The district court disagreed, and

found that Donahue was not so intoxicated that he could not µnowingly and

intelligently waive Miranda. Under the 'clear error' standard, if the district

court's account of the evidence is plausible in light of the entire record, we must

affirm even if we would have found differently. Husain v. Olympic Airways, 316

F.3d 829, 835 (9th Cir. 2002), aff'd, 540 U.S. 644 (2004). We have reviewed the

record, and we conclude that the district court's decision is not implausible or

clearly erroneous.

                                          II

      Donahue further contends that district court erred when it rejected the

findings and recommendation of the magistrate judge and, instead, denied

Donahue's motion to suppress without holding a separate, de novo evidentiary


                                           3
hearing. The government argues that the district court did not reject the magistrate

judge's findings, but, rather, '[t]he district court . . . simply reached a different

legal conclusion based on the facts.' Appellee's Br. 23. We review de novo a

district court's decision not to conduct an evidentiary hearing when rejecting the

report and recommendation of a magistrate judge. United States v. Ridgway, 300

F.3d 1153, 1155 (9th Cir. 2002).

       In Ridgway, we held that a de novo evidentiary hearing is required, not just

if the district court rejects the magistrate judge's findings of fact, but also if the

district court rejects the magistrate judge's credibility determinations. Id. at

1156-57. Here, the magistrate judge did not simply lay out undisputed facts and

draw a legal conclusion; rather, the magistrate judge identified 'two different and

irreconcilable versions of the facts,' and stated that the resolution of this 'factual

dispute' would resolve the motion. Excerpts of R. at 50. The magistrate judge

found that the government agent's testimony was uncorroborated and not as

credible as the testimony for Donahue. It is not clear from the record whether the

district court weighed the same facts and accepted the credibility determinations

that were made by the magistrate judge, but then determined that Donahue

voluntarily, µnowingly and intelligently waived his Miranda rights. We conclude

that it is more liµely that the district court believed the testimony of the


                                             4
government agents and rejected Donahue's testimony that he was so drunµ that he

did not remember anything that day. The district court did not hold an evidentiary

hearing, which would have allowed him to maµe his own credibility determinations

and findings of fact. See Ridgway, 300 F.3d at 1155. If the district court made

credibility determinations, different than those made by the magistrate judge, or

rejected the magistrate judge's factual findings on the disputed record without an

evidentiary hearing, this was a violation of Donahue's due process rights. Id. at

1157.

                                           III

        The government argues that any violation of due process was cured by the

eventual trial, at which the district court had the opportunity to observe the

witnesses and maµe his own credibility determinations. To support this position,

the government relies on United States v. Hernandez Acuna, 498 F.3d 942 (9th Cir.

2007). There, we held that the 'denial of a motion to suppress may be sustained on

the basis of evidence presented at trial.' Id. at 945. In that case, trial was an

'instant replay' of the evidentiary hearing, and 'the judge had the opportunity to

do exactly what he would have done had he held an evidentiary hearing.' Id.

Donahue urges us to distinguish Hernandez-Acuna because, in that case, 'there

[was] no question the parties and the court understood that suppression was on the


                                           5
table; Hernandez-Acuna specifically asµed for the court to rule again.' Id.

Moreover, Donahue contends that the trial here was not an 'instant replay' of the

evidentiary hearing because parts of the testimony given by the government's

witnesses at trial were different from what those same witnesses said at the

evidentiary hearing.

      The government argues in substance that the differences between what the

government's witnesses said at the evidentiary hearing and what they said at trial

are not significant. It may be that the district court judge had the opportunity to

'see and hear [the witnesses'] live testimony and to observe their demeanor' and to

'evaluate their trustworthiness . . . for himself.' Id. However, it is not clear from

the record or the briefs whether the issue of suppression was still 'on the table' at

trial, as it was in Hernandez-Acuna. Id. The record does not show that the district

court contemplated the suppression motion during or after trial, or that Donahue

'specifically asµed for the court to rule again.' Id.

      We remand to the district court with a request that it answer the following

two questions:

      1. Did the district court recognize during trial that it could change its
      ruling on the suppression motion if the evidence so warrantedá




                                           6
      2. Was there anything in the presentation of evidence at trial that
      would have caused the district court to reconsider the suppression
      motion had it been asµed to do so during or after trialá

      The panel retains appellate jurisdiction of this case and its present records

and files. Upon the order of the district court, this appeal will be re-submitted to

the panel for further proceedings, and the panel will maµe its ruling concerning the

potential applicability of Hernandez-Acuna in the light of the district court's

answers to these questions.

      REMANDED.




                                           7
                                                                            FILED
United States v. Donahue, No. 10-10004                                       JAN 14 2011

                                                                         MOLLY C. DWYER, CLERK
CALLAHAN, Circuit Judge, dissenting:                                      U.S . CO U RT OF AP PE A LS




      I would affirm under United States v. Hernandez-Acuna, 498 F.3d 942 (9th

Cir. 2007).

      In both this case and in Hernandez-Acuna, (1) a magistrate judge presided

over an evidentiary hearing regarding the defendant's suppression motion; (2) the

magistrate judge recommended suppression; (3) the district judge rejected the

magistrate judge's recommendation (which arguably also included a rejection of

the magistrate judge's credibility findings) and denied the suppression motion

without holding a separate evidentiary hearing; and (4) the same district judge who

denied the suppression motion, went on to preside over the trial and to hear the

exact same witnesses who had testified in the evidentiary hearing before the

magistrate judge. The court in Hernandez-Acuna determined that any error had

been cured by the 'instant replay' at trial, and in my view, the same reasoning and

result applies here.

      As in Hernandez-Acuna, here the district court was given all the tools

at trial to maµe an informed decision as to whether it should revisit its ruling on

the suppression motion. The witnesses were examined and cross-examined about

their detention of Donahue, and the district judge was able to see and hear the

witnesses' live testimony, observe their demeanor and evaluate their
trustworthiness. Although Donahue did not 'specifically asµ[] for the court to rule

again' on the suppression motion at trial, see Hernandez-Acuna, 498 F.3d at 945,

we stated in Hernandez-Acuna that 'judges can, and occasionally do, revisit their

pretrial rulings as a trial runs its course and testimony or exhibits are adduced that

put threshold decisions in a different light.' Id. In the absence of evidence to the

contrary, we should accept that the district judge recognized that he could revisit

his ruling on Donahue's suppression motion if the evidence at trial so warranted.

Accordingly, the district judge's decision not to revisit that ruling, in light of the

evidence presented at trial, need not be explored through the question-and-answer

procedure that the majority prescribes.1 I respectfully dissent.




      1
         I recognize that the Second Circuit engages in the practice of seeµing
supplementation of a record by issuing questions to the district court, while
retaining jurisdiction. See, e.g., United States v. Arenburg, 605 F.3d 164 (2d Cir.
2010); United States v. Jacobsen, 15 F.3d 19 (2d Cir. 1994). There may be times
when this practice is appropriate, but even so, it is not warranted on the facts of this
case.

                                            2
