IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50966

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DARYL RAY MCNAIR, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:10-CR-130-1

Before DAVIS, WIENER, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Daryl Ray McNair, Jr., appeals his conviction for

distribution and receipt of child pornography and possession of a computer

containing child pornography, in violation of 18 U.S.C. § 2252(a)(2), (a)(4)(B). 

His prosecution arose out of an investigation into a file-sharing network that led

agents to McNair through a username associated with his internet protocol (IP)

address. McNair’s home was searched by FBI agents, during the course of which

he made several admissions regarding his collection, downloading, and trading

United States Court of Appeals

Fifth Circuit

F I L E D

October 12, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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of child pornography via the file-sharing network. In addition, a computer

forensics expert recovered thousands of images of child pornography from a

computer and a thumb drive found in McNair’s bedroom, and agents found handdrawings of child pornography that McNair admitted making. McNair, now

serving a total term of 240 months in prison, challenges the denial of a motion

to suppress the statements he made during the interview at his home as well as

the sufficiency of the evidence linking him to the child pornography. Finding no

error as to either issue, we affirm.

With respect to the suppression motion, McNair contends that because he

was in custody when he was interrogated, the admissions he made during the

search of his home were subject to the requirements of Miranda v. Arizona, 384

U.S. 436 (1966). Whether a suspect is in custody is an objective determination

by the district court based on (1) the circumstances surrounding the

interrogation, and (2) whether, given the circumstances, “a reasonable person

[would] have felt he or she was at liberty to terminate the interrogation and

leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). We review the court’s

determination of custody de novo, see United States v. Paul, 142 F.3d 836, 843

(5th Cir. 1998), viewing the evidence in the light most favorable to the prevailing

party, in this case, the government, see United States v. Ibarra, 493 F.3d 526,

530 (5th Cir. 2007). 

Our review of the record satisfies us that McNair’s interrogation was not

custodial for purposes of Miranda. McNair was in his home when the detention

occurred, and an agent testified that McNair was told he was free to leave. We

have held that under such circumstances, a reasonable person does not suffer

the restraints associated with an arrest. United States v. Harrell, 894 F.2d 120,

124-25 (5th Cir. 1990). Further, an agent testified that McNair was told that he

was not under arrest and would not be arrested that day, which also weighs

against a finding of custody. See United States v. Howard, 991 F.2d 195, 200

(5th Cir. 1993). In addition, agents told McNair that it was his decision whether

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to talk to them, and McNair agreed to cooperate and signed a consent form that

allowed agents to use his online identities and passwords. 

Although the initial presence of numerous armed FBI agents wearing raid

vests may have been intimidating, that alone is not enough. See Howard, 991

F.2d at 200. Further, the fact that McNair’s interrogation lasted for almost two

hours does not mean that the interrogation was per se custodial. See Harrell,

894 F.2d at 124 & n.1. In short, we find no error in the district court’s

determination that McNair was not in custody. See United States v. Crawford,

52 F.3d 1303, 1307-09 (5th Cir. 1995).

With respect to his sufficiency challenge, McNair contends that there was

no direct or physical evidence linking him with the child pornography, and that

someone else could have gained access to his computer. He also points to his

trial testimony, in which he denied several of the admissions he had made to

agents.

In reviewing the evidence for sufficiency, we determine whether, “viewing

all the evidence in the light most favorable to the verdict, a rational trier of fact

could have found that the evidence established the essential elements of the

offense beyond a reasonable doubt.” United States v. Villarreal, 324 F.3d 319,

322 (5th Cir. 2003). Although the government asserts that McNair is subject to

a more stringent standard because he raised different sufficiency grounds in the

district court than he does on appeal, we need not resolve this question because

the evidence was sufficient under the ordinary standard, which is “highly

deferential to the verdict.” United States v. Redd, 355 F.3d 866, 872 (5th Cir.

2003) (internal quotation marks and citation omitted). 

McNair was the only person who lived at the residence. The username

that had been used to trade child pornography via the file-sharing network was

traced to McNair’s IP address. A computer forensics expert recovered 3,866

images of child pornography and 39 videos of child pornography from McNair’s

computer hard drive, and 3,167 images of child pornography from the thumb

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drive found in McNair’s bedroom. In addition, agents found hand-drawings of

child pornography in the home. 

McNair’s contention that the pornography could have come from some

outside source is speculative and unsupported by the evidence. In fact, the FBI

forensics expert testified that he found no evidence of any such unauthorized

access. Further, McNair gave detailed statements to agents admitting that he

had saved images of child pornography on his computer and a thumb drive; that

he distributed pornography via the file-sharing network; that the username in

question was his; that a number of images that had been downloaded from his

file-sharing account were his; and that he created the hand-drawings of child

pornography found in the house. Although at trial, McNair broadly denied the

charges and denied having made specific admissions, he also admitted making

several incriminating statements to the agents. 

The jury is responsible for weighing the evidence and making credibility

determinations. See United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006). 

When the evidence in this case is viewed “in the light most favorable to the

government with all reasonable inferences and credibility choices made in

support of a conviction,” a rational trier of fact could have found McNair guilty

beyond a reasonable doubt. Redd, 355 F.3d at 872.

AFFIRMED.

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