McDonald

MEMORANDUM *

Thomas McDonald appeals the district court’s denial, in part, of his pretrial motion to suppress his September 20, 2002 statements “and all alleged evidence derived or otherwise obtained as a result of these statements” from his trial for conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846 . After a hearing, the district court granted McDonald’s motion as to McDonald’s statements because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), but denied the motion as to “evidence obtained through independent sources,” including the testimony of the government’s five key witnesses. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

This court reviews for clear error the district court’s application of the inevitable discovery and independent source doctrines because, although mixed questions of law and fact, they are essentially factual inquiries. See United States v. Reilly, 224 F.3d 986, 994 (9th Cir.2000); United States v. Montoya, 45 F.3d 1286, 1295 (9th Cir.1995).

Assuming a link between McDonald’s unMirandized statements and the testimo *702 ny of each witness, the…

concurring in judgment.

I concur in our court’s judgment affirming the district court, but do so on a different rationale than that taken by the district court and by my colleagues. We consider McDonald’s appeal of the district court’s denial of his motion to suppress his custodial statements made without Miranda warnings, along with other evidence that he alleged was derived from his statements. The district court suppressed McDonald’s incriminating statements but did not suppress the alleged derivative information, which the district court concluded was “obtained through independent sources.” The majority affirms on its view that McDonald’s statements did not direct investigation to the other challenged evidence, that is, to the third party testimonial evidence incriminating McDonald.

I would affirm the district court on the grounds that, in Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), the United States Supreme Court held that the introduction of testimony of a witness discovered because of a Miranda violation did not violate the Fifth Amendment. Similarly, in Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), the Supreme…