Bassignani

We must decide whether a criminal defendant was “in custody” when police officers interviewed him for over two hours in a conference room at his workplace.

I

A

In 2005, Yahoo, Inc. reported that “a user with the email address ‘big_perm 2469@yahoo.com’ had uploaded child pornographic images to Yahoo sites.” That report caught the attention of the Sacramento Valley High Tech Crimes Unit, which launched an investigation. During the ensuing inquiry, officers discovered that an alternate e-mail address for the same user was “alex.bassignani@tellabs. com.” Tellabs is a business located in two locations — on North McDowell Boulevard and on South McDowell Boulevard — in Pe-taluma, California.

Based upon such circumstantial evidence, the investigators began building a case. Detective James Williams contacted Tellabs and confirmed that a man named Alex Bassignani worked there. Tellabs personnel also told Williams that “Bassig-nani had access to a desktop computer with internet access; and that ... Bassig-nani had installed on a work computer ... software called Window Washer,’ which can be set to delete and overwrite Inter *991 net-browsing history and other information on a computer…

dissenting:

Were the standard of review for factual determinations in this case de novo, I might join my colleagues. However, while the standard of review for a district court’s “in custody” determination is a mixed question of law and fact warranting de novo review, we review the factual findings underlying the district court’s decision for clear error. United States v. Kim, 292 F.3d 969, 973 (9th Cir.2002). After setting forth the five prong test for determining if a person was “in custody” when he made incriminating statements, the Kim court itself reviewed the district court’s findings in that case on each of the five prongs for clear error, not de novo:

Kim, 292 F.3d at 974 .

A police officer is required to read a person his Miranda rights before conducting an interrogation if the person is “in custody.” “To determine whether an individual was in custody, a court must, after examining all of the circumstances surrounding the interrogation, decide whether there[was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Kim, 292 F.3d at 973 (internal quotation marks and citation omitted) (alteration in original). Here, the State…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-10453 Plaintiff-Appellant, v.  D.C. No.

CR-06-00657-SI

ALEXANDER BASSIGNANI,

OPINION

Defendant-Appellee.  Appeal from the United States District Court for the Northern District of California Susan Yvonne Illston, District Judge, Presiding

Argued and Submitted September 11, 2008—San Francisco, California

Filed March 25, 2009

Before: Diarmuid F. O’Scannlain, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain; Dissent by Judge Bea

3819 3822 UNITED STATES v. BASSIGNANI

COUNSEL

Amber S. Rosen, Assistant United States Attorney, argued the cause for the plaintiff-appellant and filed the briefs; Joseph P. Russoniello, United States Attorney, and Barbara J. Valliere, Chief, Appellate Section, were on the briefs.

Stephen Shaiken, San Francisco, argued the cause for the defendant-appellee and filed a brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a criminal defendant was “in cus- tody” when police officers interviewed him for over two hours in a conference room at his…