                                                                             FILED
                             NOT FOR PUBLICATION                              NOV 12 2009

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



                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 08-10501

             Plaintiff - Appellee,              D.C. No. CR-08-00160-SRB-1

  v.
                                                MEMORANDUM *
KODY GARRETT HOUK,

             Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Susan R. Bolton, District Judge, Presiding

                        Argued and Submitted November 3, 2009
                               San Francisco, California

Before: B. FLETCHER, CANBY, and GRABER, Circuit Judges.

       Defendant Kody Garrett Houk appeals from the district court’s denial of his

motion to suppress the incriminating statements that he made during an

interrogation. Reviewing de novo, United States v. Bassignani, 575 F.3d 879, 883

(9th Cir. 2009), we hold that Defendant was not in custody during his interrogation

and, thus, we affirm.


        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We look at the totality of the circumstances to determine whether a suspect

is "in custody" for purposes of Miranda.1 United States v. Craighead, 539 F.3d

1073, 1082 (9th Cir. 2008). Here, four of the five factors that United States v.

Kim, 292 F.3d 969, 974 (9th Cir. 2002), identified as relevant to an "in-custody"

determination weigh against the conclusion that Defendant was in custody.

      First, an agent asked Defendant if he would speak with her; her language

was not coercive. Second, the agents interrogated Defendant in an ordinary

meeting room located in the post office building where he began and ended his

workdays. The location was neither intimidating nor wholly unfamiliar. Third,

agents questioned Defendant for only about an hour; the entire investigation lasted

for about an hour-and-a-half. Fourth, agents did not touch or handcuff Defendant.

      Of significance here, too, is the fact that Defendant was questioned by postal

service employees as part of an internal investigation. The questioning did not

occur in the context of an external criminal investigation. Additionally, the agents

informed Defendant that the interview was voluntary, that he could leave at any

time, and that he would not be arrested that day, as he ultimately was not; he went

home after the interview. Furthermore, Defendant acknowledged in writing that

the interview was voluntary.

      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

                                          2
      Although Defendant was confronted with evidence of his guilt, this sole

factor in favor of an "in-custody" determination does not outweigh the other

factors. Considering the totality of the circumstances, Defendant was not in

custody. Therefore, Miranda warnings were not required.

      Our conclusion would remain unchanged even if we were to take into

consideration Defendant’s age at the time of the interrogation, as he urges under

Yarborough v. Alvarado, 541 U.S. 652, 669 (2004) (O’Connor, J., concurring); id.

at 673-74 (Breyer, J., dissenting).

      AFFIRMED.




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