                                                                            FILED
                           NOT FOR PUBLICATION                               JAN 14 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10215

              Plaintiff - Appellee,              D.C. No. 4:03-cr-01908-RCC-
                                                 CRP-1
  v.

JASON A. WRIGHT,                                 MEMORANDUM*

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 12-10664

              Plaintiff - Appellee,              D.C. No. 4:03-cr-01908-RCC-
                                                 CRP-1
  v.

JASON A. WRIGHT,

              Defendant - Appellant.


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

                    Argued and Submitted November 20, 2014
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.

         Jason Wright appeals his conviction for possession of child pornography

under 18 U.S.C. § 2252A(a)(5)(B) and his sentence of time served and three years

of supervised release with special sex offender conditions. We affirm his

conviction, but reverse some of the special terms of his supervised release.

Because the parties are familiar with the history of the case, we need not recount it

here.1

                                             I

         The district court did not improperly admit statements made by Wright to

law enforcement officers during the execution of a search warrant at his home. We

review the denial of a motion to suppress de novo and the district court’s

underlying factual findings for clear error. United States v. Craighead, 539 F.3d

1073, 1082 (9th Cir. 2008). In doing so, we accord “special deference to the

district court’s credibility determinations” regarding testimony. Id.

         The district court did not clearly err in finding that Wright was advised of

his Miranda rights and at no time asked to speak with a lawyer. Assuming,

         1
        The government withdrew its November 12, 2014 motion to reschedule
oral argument the subsequent day, acknowledging that it was erroneously filed.
We dismiss the motion.

                                            -2-
without deciding, that the officers made an impermissible promise to Wright when

they told him he would not be arrested no matter what he said, the district court did

not err in determining that Wright’s will was not overborne by the officers’

statements or actions.

      We look to the totality of the circumstances when evaluating whether

statements made in a custodial interrogation were given voluntarily. See United

States v. Preston, 751 F.3d 1008, 1016 (9th Cir. 2014) (en banc). “Voluntariness

depends on such factors as the surrounding circumstances and the combined effect

of the entire course of the officers’ conduct upon the defendant.” Henry v. Kernan,

197 F.3d 1021, 1026 (9th Cir. 1999).

      Here, Wright testified that he believed that he would be taken away no

matter what he said in the car.2 Therefore, even if the agents’ remarks are

interpreted as a promise—or a threat—the district court did not clearly err in

implicitly concluding that Wright did not take them at face value and did not rely



      2
        The dissent argues that the district court rejected all of Wright’s testimony
as not credible. However, the court’s order did not present its finding in absolute
terms. Insomuch as the order provided a basis for its credibility determination, it
rejected Wright’s specific testimony regarding actions taken and statements made
by himself and the officers during the course of his interview. The order did not
directly address Wright’s testimony regarding his state of mind, and we conclude
that those portions of his testimony contributed to the district court’s finding that
Wright’s will was not overborne.

                                          -3-
on them as such in making his statements. The district court did not err in denying

the suppression motion.

                                           II

      Sufficient evidence for the mens rea element of § 2252A(a)(5)(B) supports

Wright’s conviction. Wright admitted that he knew his computer files contained

child pornography. Many of the files on Wright’s computer had been organized

into subfolders that necessarily were created by a user who viewed the child

pornography in order to classify it. We defer to the jury’s determination that

sufficient evidence supports a conviction so long as, “‘after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’” United

States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

                                          III

      A previous panel of this Court determined that two potential errors in

Wright’s trial—the exclusion of evidence pointing to an alternative perpetrator and

prosecutorial misconduct in the closing statement—were not individually

prejudicial. United States v. Wright, 625 F.3d 583, 604–13 (9th Cir. 2010). Nor

were these errors cumulatively prejudicial. A finding of cumulative error requires


                                          -4-
that “the combined effect of multiple trial errors . . . renders a trial fundamentally

unfair.” Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007). The panel in Wright

concluded that most of the potentially excluded evidence was weak or cumulative,

and that the impermissible statements by the prosecutor were all either “fairly

mild” or mitigated by defense counsel’s rebuttal or the jury instructions. 625 F.3d

at 609, 613. Any prejudicial impact of the errors in combination does not amount

to a due process violation.

                                           IV

      We review the reasonableness of Wright’s sentence for abuse of discretion.

United States v. Apodaca, 641 F.3d 1077, 1079 (9th Cir. 2011). The three-year

term of supervised released was not procedurally or substantively unreasonable.

However, five special conditions of Wright’s release are overly broad or otherwise

unreasonable.

      Conditions 4, 7, 8, 9, and 13 are substantively unreasonable. The first four

of these conditions restrict Wright from, among other things, possessing any

“sexually stimulating” material, having any contact with children under eighteen

years old (including, it seems, family members), engaging in any business or

volunteer activity in which he has even the potential to be alone with children, and

using any interactive website. These proscriptions encompass a wide array of


                                           -5-
activities and deprive Wright of far more liberty than is reasonably necessary to

accomplish the goals of sentencing. See United States v. Wolf Child, 699 F.3d

1082, 1101–02 (9th Cir. 2012); see also United States v. Weber, 451 F.3d 552,

557–58 (9th Cir. 2006).

      Condition 13, which forbids Wright from using alcohol, is also substantively

unreasonable. There is no basis to conclude that it “bears a reasonable relationship

to rehabilitating the offender, protecting the public, or providing adequate

deterrence.” United States v. Betts, 511 F.3d 872, 878 (9th Cir. 2007).



AFFIRMED IN PART; VACATED AND REMANDED IN PART.




                                         -6-
                                                                               FILED
United States v. Wright, No. 12-10215                                           JAN 14 2015

                                                                           MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, concurring in part and dissenting in part.          U.S. COURT OF APPEALS



      I join the court’s decision except for the part holding that Wright’s

confession was voluntary. There is no question that Wright was promised that he

would not be arrested no matter what he said during his interrogation. Whether this

meant that he would not be prosecuted is a matter we need not decide. Either way

the promise was such as would invalidate Wright’s confession if it was the cause of

his confessing. To the extent that the district court assessed Wright’s credibility, it

rejected his testimony in all respects. It made no exception for his statement that he

thought he was going to be taken away regardless of what he said. Because the

district court made no express finding on that point, its factual findings, or lack of

factual findings, as to the effect of the government’s unlawful promise on Wright

render it impossible to conclude that the government carried its burden to prove by

a preponderance of the evidence that Wright’s statement was voluntary. See United

States v. Williams, 435 F.3d 1148, 1153 n.5 (9th Cir. 2006) (“The government

must prove voluntariness by a preponderance of the evidence.” (citing Lego v.

Twomey, 404 U.S. 477, 489 (1972))). At a minimum, we should remand for the

district court to make additional factual findings.1 Preferably, however, we should


      1
       The majority says that the district court relied on Wright’s testimony
regarding his state of mind in finding that his will was not overborne. This
simply do our job as a court of appeals and reverse the district court’s judgment

because it was wrong.




conclusion is in no manner justified by what the district court stated. The district
court said nothing whatsoever about whether Wright’s will was overborne and
indeed did not even appear to find that the promise was unlawful. The best that can
be said for the district court’s findings is that they are totally inadequate.
