United States v. Phan

MEMORANDUM ** Hoang Thanh Phan appeals his jury trial conviction and sentence for three counts of bank fraud, and one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344, 2 and 371, respectively. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm. Phan contends that the district court erred by failing to suppress two statements allegedly obtained in violation of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court found that Phan was not in custody when either statement was made, therefore, his Miranda rights were not implicated. We review the district court’s determination de novo. United States v. Coutchavlis, 260 F.3d 1149, 1157 (9th Cir. 2001). A person is in custody if under the totality of the circumstances, a reasonable person would believe that he or she was not free to leave. United States v. Melvin, 91 F.3d 1218, 1222 (9th Cir.1996). The May 29, 1999 Statement: The first statement was made to FBI agents in Phan’s home, without advisement pf his Miranda rights. Phan contends that he was in custody because 1) he was the target of the FBI’s investigation, 2) the interview in his home lasted over three hours, 3) he is not fluent in English, and 4) he did not feel that he could terminate the interrogation and leave. Phan’s contention is unpersuasive, First, Phan’s subjective view is relevant, but not determinative because we look at the objective circumstances involved. United States v. Butler, 249 F.3d 1094, 1099 (9th Cir.2001). Second, being a target of the FBI’s investigation does not require that Miranda warnings be given prior to non-custodial questioning. See United States v. Eide, 875 F.2d 1429, 1437 (9th Cir.1989). Third, Phan invited the FBI agents into his home, where he was interviewed in a cordial manner, and he was neither restrained in any way, nor threatened with arrest. Based on the totality of the circumstances, the district court correctly determined that Phan was not in custody. See United States v. Gregory, 891 F.2d 732, 735 (9th Cir.1989) (concluding that defendant was not in custody because he consented to being questioned in his home, even though the police initially drew their guns); see also Eide, 875 F.2d at 1432, 1437. The July 1, 1999 Statement: The second statement was made at the United States Attorney’s Office subsequent to being advised of his Miranda rights and signing a written waiver of those rights. Phan, however, contends that the waiver was invalid because he did not understand the rights he was waiving due to his lack of fluency in English, and he signed the waiver only because he wanted to cooperate. Here too, we find Phan’s contention unpersuasive. Regardless of whether the waiver of his Miranda rights was valid, because Phan was not in custody, his Miranda rights were not implicated. Butler, 249 F.3d at 1098 (stating that sine qua non of Miranda is custody). Phan came to the U.S. Attorney’s Office of his own volition, the interview was carried out in a cordial manner, [824] and Phan left without hindrance after being questioned. Coutchavlis, 260 F.3d at 1157-58; United States v. Hayden, 260 F.3d 1062, 1066-67 (9th Cir.2001). Once again, based on the totality of the circumstances, the district court correctly determined that Phan was not in custody. Id. The district court’s denial of the motion to suppress was therefore proper. AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.