United States v. Kenneth Ng

Opinion

FILED NOT FOR PUBLICATION FEB 26 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10005

Plaintiff-Appellee, D.C. No. 3:15-cr-00323-VC-2

v. MEMORANDUM* KENNETH NG,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted February 14, 2019** San Francisco, California

Before: SCHROEDER, O’SCANNLAIN, and RAWLINSON, Circuit Judges.

Defendant Kenneth Ng appeals his convictions for possessing and

distributing methamphetamine and conspiracy to do the same. See 21 U.S.C.

§ 841(a)(1), (b)(1); 21 U.S.C. § 846. After an evidentiary hearing, the district

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). court denied his pre-trial motion to suppress, finding that the interview was

noncustodial. Ng contends this was error. We affirm.

The factual findings underlying the district court’s decision are reviewed for

clear error. United States v. Cazares, 788 F.3d 956, 979 (9th Cir. 2015) (citation

omitted). “These factual findings include ‘scene and action-setting questions,’ as

well as ‘the circumstances surrounding the interrogation.’” United States v.

Bassignani, 575 F.3d 879, 883 (9th Cir. 2009) (quoting Thompson v. Keohane, 516

U.S. 99, 112 (1995)).

The district court’s factual findings in this case are not clearly erroneous,

and they support the district court’s legal conclusion that Ng’s interview was

noncustodial. See id. at 883-84 (outlining factors guiding the determination). The

district court found the testimony of the government witnesses credible and

reached its decision after a two-day evidentiary hearing. Although Ng contends

that he was taken forcefully to the police station and that he was subjected to

coercive questioning, the district court discredited Ng’s characterization of the

circumstances surrounding his interrogation, finding instead on the basis of the

evidentiary record that he voluntarily agreed to go to the station in order to provide

a statement. There was no error, and the evidence of guilt was overwhelming.

AFFIRMED.