NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10263

Plaintiff-Appellee, D.C. No. 1:14-cr-00032-DKW-1 v.

JOHN ZACHARY KATSU TOYOFUKU, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding

Argued and Submitted October 11, 2018 Honolulu, Hawaii

Before: WARDLAW, BERZON, and BENNETT, Circuit Judges.

John Toyofuku appeals the district court’s denials of his motion to suppress

and renewed motion to suppress. We affirm.

The district court denied the motions to suppress because it found that

private citizen members of a Hawaiian sovereignty group were not acting as

instruments or agents of the government for purposes of the Fourth Amendment

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. when one or more of the members opened a shipping crate and found marijuana,

ultimately leading to the arrest and conviction of Toyofuku.

As to the first motion, the district court did not err in holding that FBI

Special Agent Judah Pent’s meeting with Samson Kama and Kimokeo Kahalewai

the morning of the search was insufficient under our case law to establish that the

government knew of and acquiesced in the subsequent search. See United States v.

Walther, 652 F.2d 788, 792–93 (9th Cir. 1981).

As to the second motion, the district court did not err in finding that

someone searched the crate before Kama spoke to Sergeant Apollo Chang. The

district court’s factual findings must be affirmed unless clearly erroneous. See

United States v. Peterson, 902 F.3d 1016, 1019 (9th Cir. 2018). This is a highly

deferential standard, particularly with respect to credibility determinations. See

Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). It was not clearly

erroneous for the district court to discredit Kama’s testimony and credit the

testimony of law enforcement officers regarding whether Kama indicated that he

knew the crate contained marijuana when he first spoke to Sergeant Chang and

whether Sergeant Chang directed Kama to open the crate, which was the critical

question. Precisely when the crate was opened does not matter. Also, the record

supports the district court’s finding that Kama called law enforcement several

times before speaking with Sergeant Chang, which is consistent with the

2 conclusion that, by then, he already knew that the crate contained marijuana.

Because the district court did not clearly err in finding that someone

searched the crate before Kama spoke to Sergeant Chang, it follows that the district

court did not err in holding that Kama’s subsequent conversations with law

enforcement officers did not retroactively convert the search into a government

search. See, e.g., United States v. Young, 153 F.3d 1079, 1080 (9th Cir. 1998) (per

curiam).

AFFIRMED.

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