                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             MAY 05 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50483

              Plaintiff - Appellee,              D.C. No. 3:13-cr-00668-WQH-1

 v.
                                                 MEMORANDUM*
ROBERT KHETHER MCKANY,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                       Argued and Submitted March 9, 2016
                              Pasadena, California

Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.

      Robert Khether McKany appeals the denial of his motions to suppress

evidence relating to his conviction, pursuant to a conditional guilty plea, of two

counts of violating 18 U.S.C. § 2252. McKany also appeals the district court’s

denial of his motion to vacate one of his two convictions, for receipt of child



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pornography and possession of child pornography, on double jeopardy grounds.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse in part, affirm

in part, and remand for further proceedings.

      We reverse the district court’s denial of McKany’s motion to suppress his

statements to law enforcement officers during a search of his home. The Fifth

Amendment provides that “[n]o person . . . shall be compelled in any criminal case

to be a witness against himself . . . .” U.S. Const. Amend. V. Before any

interrogation that occurs in a custodial setting, a suspect must be advised of his or

her Fifth Amendment rights as required by Miranda v. Arizona, 384 U.S. 436,

444–45 (1966). The parties do not dispute that Homeland Security officers

interrogated McKany in his home without advising him of his Miranda rights.

      The government argues that the officers were not required to advise McKany

of his Miranda rights because he was not in custody at the time of the

interrogation. We disagree. In United States v. Craighead, 539 F.3d 1073, 1083

(9th Cir. 2008), we held that the “benchmark for custodial interrogations in

locations outside of the police station” is whether or not the interrogation occurred

in a “police-dominated atmosphere.” In the present case, the atmosphere was

plainly police-dominated. Officers swarmed into McKany’s home at 6:30 a.m. in

full tactical gear and with guns drawn. In Craighead, there were eight law


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enforcement officers conducting the search; in the present case, eight to ten

officers initially entered the house, and fourteen officers were ultimately involved

in executing the search warrant. See id. at 1085. McKany was handcuffed prior to

the interrogation, and officers had to help him into a pair of pants while he was

handcuffed, since he was not fully dressed. When McKany told the officers that he

needed to use the bathroom, they escorted him to his father’s bathroom and

watched him through the open door. See Craighead, 539 F.3d at 1085–86.

McKany was also isolated from others: his father was not permitted to go inside

when the officers first arrived (although he then left voluntarily), and the officers

closed the door of the bedroom where McKany was being interviewed.

      The officers informed McKany that he was free to leave or terminate the

interview, but, as the court in Craighead pointed out, “[i]f a reasonable person is

interrogated inside his own home and is told he is ‘free to leave,’ where will he go?

The library? The police station? . . . . To be ‘free’ to leave is a hollow right if the

one place the suspect cannot go is his own home.” Id. at 1083. In addition,

McKany initially expressed some hesitation about speaking with the officers. The

officer’s advisal that McKany was free to leave occurred in the context of a

fourteen-agent search where McKany was initially handcuffed and his movements

were closely monitored and controlled. Considering the totality of the


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circumstances, a reasonable person in McKany’s position would not have felt free

to leave. See United States v. Brobst, 558 F.3d 982, 995 (9th Cir. 2009). Thus, we

hold that McKany was in police custody at the time of the interrogation. Because

the officers failed to inform McKany of his Miranda rights prior to the

interrogation, the district court erred in denying McKany’s motion to suppress his

statements to the officers.

      McKany also argues that the district court should have suppressed evidence

obtained pursuant to a search warrant that provided for a ninety-day window for

officers to search McKany’s computers after imaging. The officer responsible for

searching the computers waited ninety-one and ninety-two days after imaging

McKany’s three computers before requesting an extension of time, which was then

granted. The officers were diligent in executing the search of McKany’s

computers and seeking extensions of the warrants, and McKany has not

demonstrated that he was prejudiced as a result of any violation of Federal Rule of

Criminal Procedure 41. See United States v. Martinez-Garcia, 397 F.3d 1205,

1213 (9th Cir. 2005). In addition, the rule violation does not rise to a

“constitutional magnitude.” Id. Thus, the district court did not err in denying

McKany’s motion to suppress the evidence obtained from McKany’s computers.




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      Next, McKany contends that his convictions for possession and receipt of

child pornography violate the Double Jeopardy Clause. See U.S. Const. Amend.

V. The offense of possessing child pornography is a lesser included offense of the

receipt of child pornography, and defendants may not be punished twice when

these offenses are supported by “the same conduct.” United States v. Davenport,

519 F.3d 940, 947 (9th Cir. 2008). Here, McKany pleaded guilty to separate

conduct underlying each charge. Specifically, McKany’s conviction for possession

of child pornography was premised on his possession of at least 180 videos and

2,338 images that were not included in the receipt charge. Because McKany

pleaded guilty, there is no potential uncertainty as to which images or videos

McKany was convicted of possessing. See United States v. Overton, 573 F.3d 679,

695–98 (9th Cir. 2009). The district court did not err in concluding that McKany’s

convictions did not violate the Double Jeopardy Clause.

      For the foregoing reasons, we reverse the denial of McKany’s motion to

suppress his statements to the officers during the search of his home. We affirm

the denial of his motion to suppress evidence obtained pursuant to an extended

search warrant, and we affirm the district court’s refusal to vacate one of

McKany’s convictions on double jeopardy grounds. We remand to the district

court for further proceedings consistent with this disposition.


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REVERSED in part, AFFIRMED in part, and REMANDED.




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