                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 26 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10337

              Plaintiff - Appellant,             D.C. No. 2:08-cr-00269-WBS-
                                                 KJM-1
  v.

JOEL BLANFORD,                                   MEMORANDUM *

              Defendant - Appellee.



                   Appeal from the United States District Court
                        for the Eastern District of California
                 William B. Shubb, Senior District Judge, Presiding

                      Argued and Submitted January 13, 2012
                            San Francisco, California

Before: WALLACE, NOONAN, and M. SMITH, Circuit Judges.

       Plaintiff-Appellant United States of America appeals the district court's

grant of Defendant-Appellee Joel Blanford's motion to suppress statements he

made during an in-home interview with federal agents. Because the parties are

familiar with the factual and procedural history of this case, we repeat only those



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
facts necessary to resolve the issues raised on appeal. We have jurisdiction

pursuant to 18 U.S.C. y 3731. Reviewing de novo the district court's decision to

suppress statements under Miranda v. Arizona, 384 U.S. 436 (1966), and

reviewing for clear error the district court's underlying factual findings, we affirm.

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

      Blanford was in custody for Miranda purposes during his in-home interview

because a reasonable person 'would 'have felt he or she was not at liberty to

terminate the interrogation and leave.'' United States v. Craighead, 539 F.3d

1073, 1082 (9th Cir. 2008) (quoting Thompson v. Keohane, 516 U.S. 99, 112

(1995)). Although Blanford invited the agents into his home, we hold that, in light

of the totality of the circumstances, the interview was custodial. Blanford was

isolated during the interview, which lasted forty-five minutes. The agents were

armed with guns, advised him not to have a lawyer present, and confronted him

with substantial evidence of his guilt for fraud and not telling the truth, to stop him

from terminating the interview or leaving. Moreover, the agents outnumbered

Blanford and restrained Blanford by threatening him with criminal charges if he

did not cooperate and answer their questions after showing him evidence strongly

suggesting his guilt. Blanford answered the agents' questions when he was alone,

and the agents never informed him that he was free to leave or terminate the


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interview. Under these circumstances, the balance of the relevant factors suggests

that Blanford was in custody. See Brobst, 558 F.3d at 995; Craighead, 539 F.3d at

1084. The circumstances of his interview created a police-dominated atmosphere.

See Craighead, 539 F.3d at 1084.

      Because Blanford was in custody during his in-home interview, and the

agents did not give him Miranda warnings before questioning him, the agents

violated Miranda. See Stansbury v. California, 511 U.S. 318, 322 (1994) (per

curiam). Thus, we affirm the district court's suppression of Blanford's statements.

See id.

      AFFIRMED.




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                                                                            FILED
United States v. Blanford, No. 10-10337                                      JAN 26 2012

                                                                         MOLLY C. DWYER, CLERK
WALLACE, Senior Circuit Judge, dissenting:                                U.S . CO U RT OF AP PE A LS




      The question of whether a reasonable person would have felt that he was not

at liberty to terminate an interrogation and leave is aimed at resolving 'the ultimate

inquiry': 'was there a formal arrest or restraint on freedom of movement of the

degree associated with a formal arrest.' Thompson v. Keohane, 516 U.S. 99, 112

(1995) (internal punctuation omitted) (quoting California v. Beheler, 463 U.S.

1121, 1125 (1983) (per curiam)). Blanford's freedom was never restrained to such

a degree. While the majority lists a version of the facts corresponding to the

factors examined in United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008), its

conclusion abandons Craighead's reasons for considering those factors.

Therefore, I dissent.

      The majority apparently considers the fact that there were two plainclothes

agents with concealed weapons as supporting its finding of custody. I disagree. In

Craighead, the court was concerned that a 'large number' of law enforcement

agents might fill the home so there would be nowhere to retreat, might suggest that

an agent would stop the suspect on his way out, or might suggest that the agents

were brought to prevent the suspect's departure. 539 F.3d at 1084-85. The court

was also concerned that unholstered weapons show that the suspect's home is no


                                           1
longer safe from the threat of police force. Id. at 1085. None of the concerns that

animated Craighead's inquiry into the number of armed agents are present here

because there were only two agents and they were not displaying their weapons.

      The majority also apparently relies on the fact that no one other than

Blanford and the agents were in Blanford's dining room when he answered the

agents' questions. However, Craighead's inquiry into 'whether the suspect was

isolated from others' stems from Miranda v. Arizona, 384 U.S. 436, 445 (1966),

which was concerned about 'incommunicado interrogation,' and United States v.

Griffin, 922 F.2d 1343, 1352 (8th Cir. 1990), which was concerned about 'police

domination' by the 'removal of the suspect from the presence of family, friends, or

colleagues who might lend moral support during the questioning.' 539 F.3d at

1086-87. Here, the interview was not incommunicado and the agents did not

remove anyone from Blanford's presence. When Blanford's wife and children

arrived at home in the middle of the interview, Blanford left the table to meet them

and it was Blanford who asµed his family to go to another room.

      The majority's view that the agents restrained Blanford by threatening him

with criminal charges is also at odds with Craighead, which looµs into whether

'agents restrain[ed] the ability of the suspect to move.' 539 F.3d at 1085. The

threats of future criminal charges did not affect Blanford's ability to move, but


                                          2
instead related to the potential legal consequences he might suffer someday if he

did not cooperate. Blanford was never restrained from leaving the dining room

table, continuing the interview to another date, or terminating the interview

entirely.

       That Blanford's questioning may have taµen place in a 'coercive

environment' is not by itself sufficient to render the questioning custodial. Oregon

v. Mathiason, 429 U.S. 492, 495 (1977). 'Any interview of one suspected of a

crime by a police officer will have coercive aspects to it, simply by virtue of the

fact that the police officer is part of a law enforcement system which may

ultimately cause the suspect to be charged with a crime.' Id. The two agents, who

were invited inside Blanford's home and who allowed Blanford to control the

location of the interview and the people present, did not turn Blanford's home into

a police-dominated atmosphere. See Craighead, 539 F.3d at 1083. Therefore,

Blanford was not in custody when he made the statements sought to be suppressed.

       I dissent.




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