                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 09 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10325

              Plaintiff-Appellant,               D.C. No.
                                                 1:15-cr-00293-SOM-KSC-2
 v.

MICHAEL WALKER,                                  MEMORANDUM*

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Hawaii
                    Susan O. Mollway, District Judge, Presiding

                      Argued and Submitted August 14, 2018
                            San Francisco, California

Before: SCHROEDER, SILER,** and MURGUIA, Circuit Judges.

      The United States appeals the District Court’s pretrial order suppressing

statements made by the defendant, Michael Walker, to military investigators in the

Criminal Investigations Division following the murder of his wife. The District


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Court, after an evidentiary hearing, held that the defendant was detained and hence

subject to custodial interrogation once the questioning turned to the subject of

extramarital relationships. The District Court suppressed all statements made after

that time.

      The government first contends that Walker was not in custody until he

received warnings under Miranda v. Arizona, 384 U.S. 436 (1966), some time after

the initial questioning about extramarital affairs. The warnings were apparently

administered after the government reviewed the contents of his cell phone,

revealing a specific extramarital relationship. Before that time, the investigators

had not referred to any possible evidence of Walker’s motive or guilt of the murder

of his wife. Prior to the warnings, Walker had been provided a lunch break and

access to the restroom. Moreover, the earlier questioning concerning extramarital

relationships did not pertain to any serious criminal offense or focus on any

particular relationship, and the language used by the investigator was not

threatening or coercive. The facts here do not indicate Walker was in custody and,

therefore, no Miranda warnings were required. See United States v. Kim, 292 F.3d

969, 974 (9th Cir. 2002). In addition, there is no indication that Walker's

statements were a product of police coercion and made involuntarily. See

Colorado v. Connelly, 479 U.S. 157, 167 (1986). The District Court erred in


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suppressing the statements made during that earlier questioning. Accordingly,

Walker's statements prior to the warnings are admissible for all purposes. See

Michigan v. Harvey, 494 U.S. 344, 350-51 (1990).

      The thrust and tone of the interview materially changed, however, when the

cell phone information reflected the existence of a specific relationship that

prompted investigators to suspect Walker’s guilt and the need for the Miranda

warnings. Once the warnings were given, and Walker responded affirmatively that

he wished to have counsel and wanted to stop talking with the investigator, the

interrogation nevertheless continued, over Walker’s protests, on the subject of his

relationship with “Lisa.” The District Court did not err in ruling that Walker was

in custody during this questioning. The government bears the burden of

establishing that the statements made post-Miranda warnings were voluntary,

despite the violation of Miranda rights. See United States v. Haswood, 350 F.3d

1024, 1027 (9th Cir. 2003). The court must consider a number of factors relating

to the defendant’s situation and the officer’s conduct to determine voluntariness.

See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). In this case, Walker

had not eaten since the previous evening, had already endured questioning for

more than an hour and a half, and responded with mumbles and complaints, while

the interrogator in forceful and threatening tones urged him to answer by inter alia,


                                           3
invoking the will of God. The District Court did not err in holding that the

statements made under such interrogation were involuntary and inadmissible for

any purpose. See id.; Pollard v. Galaza, 290 F.3d 1030, 1033–34 (9th Cir. 2002).

      AFFIRMED IN PART, REVERSED IN PART AND REMANDED.




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                                                                         FILED
                                                                          NOV 9 2018
US v. Walker , Case No. 17-10325                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS

SILER, Judge, concurring in part and dissenting in part.

      I concur with the decision by the majority that the district court erred in

suppressing the statements made by Walker during the questioning before he

received warnings under Miranda v. Arizona, 384 U.S. 436 (1966). However, I

beg to differ from the majority memorandum that the district court did not err in

ruling that Walker was in custody during this questioning.

      Certainly, the government bears the burden of establishing that the

statements made after the Miranda warnings were voluntary. See United States v.

Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003). The prosecution admits that those

statements post-Miranda cannot be used as evidence in chief during the trial, but

the prosecution suggests that they were voluntary statements which could be used

in the cross-examination of Walker, if he chooses to testify at trial. Although at the

time of questioning, Walker had not eaten since the previous evening, he had been

on duty at the hospital and willingly came with the officers to the building where

he was questioned. Moreover, although he was questioned for more than an hour

and a half, he also was given a lunch break and released after the questioning. He

was never searched or patted down, and, he was taken to quarters after the

interrogation.   He voluntarily went with the officers to the office to give a

statement, for he was the person who notified authorities that his wife had been
                                          1
killed. It was logical that the investigating officers would question Walker in a

location away from his dwelling where the crime occurred and where evidence

might be found before it was disturbed.

      Walker was never told he was under arrest, nor was he told he could not

leave. Although the questioning by Mitchell was overbearing, that did not make

the statements involuntary.    As the majority states, the government bears the

burden of establishing that the statements were voluntary. However, we consider

voluntariness under a de novo review. United States v. Preston, 751 F.3d 1008,

1020 (9th Cir. 2014)(en banc). In this case, Walker was 35 years old, an Army

sergeant, and a medic.      He had a high school education and some college,

including several criminal justice courses. I would find that the district court erred

when it concluded that the statement made after the Miranda warnings were

involuntary. I would therefore allow the post-Miranda statements to be used for

impeachment purposes only. See Oregon v. Elstad, 470 U.S. 298, 307 (1985).




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