                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 03 2015

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

UNITED STATES OF AMERICA,                        No. 14-10149

              Plaintiff - Appellee,              D.C. No. 4:11-cr-00188-SBA-1

 v.
                                                 MEMORANDUM*
DAVID BUSBY,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Northern District of California
                 Saundra B. Armstrong, District Judge, Presiding

                       Argued and Submitted May 13, 2015
                            San Francisco, California

Before: KOZINSKI, PAEZ, and CLIFTON, Circuit Judges.

      David Busby appeals his conviction under 18 U.S.C. § 2252(a)(4)(B), and

his ten year mandatory minimum sentence under § 2252(b)(2). Busby challenges

various aspects of his conviction and sentence. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Busby challenges the district court’s denial of his motions to suppress

statements he made to two detectives on April 22, 2010, and to two federal agents

on May 6, 2010. Busby argues that on both occasions he was in custody and the

law enforcement officers failed to give him the warnings required by Miranda v.

Arizona, 384 U.S. 436 (1966). We disagree.

      When Busby met with the detectives on April 22, 2010, he was not in

custody for purposes of Miranda. Under the circumstances of the encounter, a

reasonable person would have felt free to end the interrogation. See United States

v. Craighead, 539 F.3d 1073, 1082–88 (9th Cir. 2008). The officers questioned

Busby at his house, permitted his wife to remain for the questioning, did not

unholster their weapons, used open-ended questions without specifying the type of

evidence the government had found, and did not use improper intimidation or

make promises to Busby. Cf. id.

      Similarly, Busby was not in custody for purposes of Miranda when he met

with the federal agents on May 6, 2010. The two agents questioned Busby at his

house, wore plain clothes, did not show or unholster their weapons, and did not use

improper intimidation. Cf. Craighead, 539 F.3d at 1082–88.

      2. Busby also argues that his statements on April 22 and May 6 were

involuntary under the Fifth Amendment. This argument is without merit. Given


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the nature and limited duration of each incident, Busby’s statements during both

interrogations were voluntary. See Doody v. Ryan, 649 F.3d 986, 1008 (9th Cir.

2011) (en banc).

      3. Busby next argues that the district court erred by refusing to suppress

Busby’s May 6 statements as products of the illegal search conducted at his house

on April 22. In applying the test set forth in United States v. Shetler, 665 F.3d

1150, 1158 (9th Cir. 2011), the district court did not err. Busby knew about both

the illegal search of his home and the legal search of his workplace. Although one

of the federal agents at the May 6 encounter referred to all of Busby’s computers,

the agent told Busby that he had not yet analyzed the computers. When Busby

referenced computers in his statements to the agents, he referenced his work

computers. On this record, the government met its burden of showing that Busby’s

statements were not the fruit of the unlawful search.

      4. Busby next claims that the district court committed reversible error by

admitting a prior 1990 conviction to show knowledge and motive. Even assuming

that the district court abused its discretion in admitting the prior conviction, an

issue we do not decide, any such error was harmless. See United States v.

Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005). Evidence admitted at trial,

in particular, Busby’s pretrial statements, the evidence found in unallocated space


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on computers assigned to Busby, and the log file search term evidence,

demonstrates that the admission of the 1990 conviction was harmless.

      5. Busby also argues that the district court committed reversible error in

sustaining an objection on hearsay grounds to Busby’s expert’s testimony about

certain disclosures on the websites he visited. Busby proffered this evidence not

for the truth of the matter asserted, but rather as nonhearsay to show the effect of

the websites’ assurances of legality on a viewer. See Fed. R. Evid. 801(c).

Although the proffered testimony was not hearsay, the error in excluding it was

harmless beyond a reasonable doubt. See United States v. Evans, 728 F.3d 953,

966–67 (9th Cir. 2013). The trial evidence relating to Busby’s mens rea included,

among other things, log file evidence of search terms and Busby’s pretrial

statements to the police and federal agents.

      6. Busby also argues that the district court erred in failing to instruct the

jury on a “promptly and in good faith” deletion defense, 18 U.S.C. § 2252(c). We

disagree. “A defendant is entitled to have the jury instructed on his or her theory

of defense, as long as that theory has support in the law and some foundation in the

evidence.” United States v. Perdomo-Espana, 522 F.3d 983, 986–87 (9th Cir.

2008).




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      Here, there was no foundation in the evidence for Busby’s requested

instruction. Busby did not link evidence of deletion with evidence that such

deletion occurred promptly. See § 2252(c). First, files in unallocated space

contained no information or metadata regarding when or how they first appeared in

unallocated space. Second, although Busby may have deleted all of the relevant

files before and did not appear agitated when staff confronted him on April 20,

those facts do not support an instruction regarding whether Busby promptly deleted

the relevant files. Thus, the district court did not err in declining to give the

requested instruction.

      7. Finally, Busby challenges the district court’s imposition of a mandatory

minimum sentence despite the district court indicating that it “otherwise . . . would

not be likely to impose that sentence.” Busby’s argument, however, is foreclosed

by United States v. Farmer, 627 F.3d 416, 422 (9th Cir. 2010). We therefore

affirm the district court’s sentence.

      AFFIRMED.




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