                                                                         FILED
                    UNITED STATES COURT OF APPEALS                        DEC 24 2012

                                                                      MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                      U .S. C O U R T OF APPE ALS




UNITED STATES OF AMERICA,                       No. 11-30349

              Plaintiff - Appellee,             D.C. No. 3:11-cr-00010-HRH-1
                                                District of Alaska,
  v.                                            Anchorage

CHARLES CHANEY,
                                                ORDER
              Defendant - Appellant.



Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       The memorandum disposition filed on September 10, 2012 is withdrawn and

replaced with the accompanying amended memorandum disposition.

       With these amendments, the panel has voted to deny the petition for panel

rehearing.

       The petition for panel rehearing is DENIED. No further petitions shall be

permitted.
                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 24 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30349

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00010-HRH-1

  v.
                                                 MEMORANDUM *
CHARLES CHANEY,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Alaska
                H. Russel Holland, Senior District Judge, Presiding

                           Submitted August 30, 2012 **
                               Anchorage, Alaska

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Charles Chaney (“Chaney”) appeals the district court’s denial of his motion

to suppress two recorded interviews with police officers in their car. Chaney

argues that his statements, though voluntary, should have been suppressed under


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the Fourth Amendment exclusionary rule, as the statements were the product of an

illegal police entry into his home. We review de novo the district court’s denial of

a motion to suppress evidence, and review for clear error underlying factual

findings. United States v. Bynum, 362 F.3d 574, 578 (9th Cir. 2004).

      Voluntary statements should be suppressed where officers confront the

suspect with illegally obtained evidence, or where the defendant’s answers during

questioning may have been “induced or influenced by the illegal search.” United

States v. Shetler, 665 F.3d 1150, 1158 (9th Cir. 2011). Chaney’s statements were

not a “product of the initial illegal search.” Id. at 1159. The police discovered

sufficient evidence prior to the illegal search that rendered the evidence discovered

in Chaney’s home de minimis. See United States v. Green, 523 F.2d 968, 972 (9th

Cir. 1975). Officer Arthur Dull testified that he recognized Chaney on sight in an

all terrain vehicle with a stolen police radar gun strapped to the front of it. The

still-warm all terrain vehicle with the radar gun was later parked outside Chaney’s

home. Chaney was aware that the police had this information when he voluntarily

decided to speak to the police and to deny involvement in the theft. Chaney did

not change his story when confronted with additional physical evidence obtained in

the home. Finally, in the first interview, no mention was made of the evidence

from the illegal search, and in the second interview, a single reference to the


                                          -2-
evidence did not change Chaney’s story and was redacted before the recording was

played for the jury. Thus, the circumstances surrounding Chaney’s statements

indicate that they were not induced by the search. The district court properly

denied the suppression motion.

      Chaney also appeals the district court’s denial of his request for a mistrial.

He argues that the agent’s inadmissible opinion testimony that Chaney appeared

“nervous and untruthful” was prejudicial and willful. We review for abuse of

discretion a district court’s denial of a mistrial request. United States v.

Washington, 462 F.3d 1124, 1135 (9th Cir. 2006). Reversal is warranted when the

defendant shows that “the misconduct materially affected the verdict.” United

States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011).

      The agent’s statement was not prejudicial and did not affect the verdict.

Chaney admitted that he was involved in the vehicle theft. The jury heard credible

testimony regarding Chaney’s use of the police officer’s firearm. The jury also

heard several phone calls during which Chaney discussed the theft. Finally, the

judge properly admonished the jury regarding the agent’s testimony. A jury is

presumed to follow the district court’s curative instructions. Doe ex. rel.

Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270 (9th Cir. 2000). Taking the context

of the trial as a whole, we conclude that the district court did not abuse its


                                           -3-
discretion in denying the motion for a mistrial because the agent’s testimony did

not materially impact the verdict.

      AFFIRMED.




                                         -4-
