United States of America v. Bradley John Dierking

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Susan R. Bolton, District Judge, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
BRADLEY JOHN DIERKING,
Defendant - Appellee.
No. 09-50180
D.C. No. 3:08-cr-03366-JM-1
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Argued and Submitted December 9, 2009
Pasadena, California
Before: THOMPSON and SILVERMAN, Circuit Judges, and BOLTON, **
District Judge.
The government appeals the district court’s order granting Bradley
Dierking’s motion to suppress his confession. We have jurisdiction under 18
U.S.C. § 3731. In accordance with that provision, the government certified that
FILED
DEC 17 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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this appeal was not taken for purpose of delay and that the evidence suppressed
constituted substantial proof of a fact material to the proceeding. The certification
was signed by an Assistant United States Attorney as “Acting United States
Attorney.” Because someone other than the United States Attorney signed the
certificate, it should have been accompanied by documentation establishing that
person’s authority to sign on behalf of the United States Attorney. United States v.
Wallace, 213 F.3d 1216, 1219 (9th Cir. 2000).
The government’s noncompliance with the certification requirement does
not deprive the court of jurisdiction. United States v. Gantt, 194 F.3d 987, 997
(9th Cir. 1999). The government has supplemented the record with documentation
proving that the AUSA had authority to sign on behalf of the United States
Attorney at the time he filed the notice of appeal. “[T]hough the government’s
oversight has led to a considerable waste of judicial resources, the defendant has
suffered no prejudice.” Id. Dismissal is therefore unwarranted. At oral argument,
AUSA Bruce R. Castetter assured the court that his office has rectified this
problem and that it will not happen again. With that understanding, we are content
to leave it at that.
Turning to the custody determination, Dierking was not subject to “‘formal
arrest or restraint on freedom of movement’ of the degree associated with a formal

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arrest.” United States v. Crawford, 372 F.3d 1048, 1059 (9th Cir. 2004) (en banc)
(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). At the
time Dierking confessed, the agents had assured him on three separate occasions
that he was not under arrest, that they would not arrest him that day, and indeed
they did not. See id. at 1059. Dierking demonstrated that he knew he was not in
custody when he asked the agents if anything he might say would result in his
arrest that day.
Dierking did not face anywhere near the degree of restraint and isolation
faced by the suspect in United States v. Craighead, 539 F.3d 1073, 1085–87 (9th
Cir. 2008). The agents ensured that Dierking was dressed and Dierking got
himself a glass of water from his kitchen before the interview started. Only then
did the agents ask Dierking if he wanted to sit at his kitchen table, where the
interview began. The evidence does not support the district court’s finding that the
agents “told” Dierking where to sit. Nor was he isolated in a storage room with the
door blocked by an agent, as had happened in Craighead. Id. at 1078. No agents
blocked him from retreating outside his apartment or to elsewhere in the apartment
where he could be by himself. The agents repeatedly explained that he was free to
obtain a lawyer if he wanted one.

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Significantly, there is no contention whatsoever that Dierking’s confession
was involuntary or anything other than entirely consensual. The record clearly
shows that there was nothing oppressive, coercive, deceptive, or overbearing in the
agents’ questioning. See United States v. Bassignani, 575 F.3d 879, 884 (9th Cir.
2009). To the contrary, the tone of the conversation was friendly and cordial. A
reasonable innocent person under the circumstances would have felt free to
terminate the questioning, Craighead, 539 F.3d at 1082, so Dierking was not in
custody and the need for Miranda warnings did not attach. Thus, the district court
erred in suppressing the confession.
The district court did not address the parties’ arguments regarding the
validity of the warrant. We therefore remand for the district court to consider the
validity of the warrant in the first instance.
REVERSED and REMANDED.

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