FILED
NOT FOR PUBLICATION JUL 31 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30126
Plaintiff - Appellee, D.C. No. 2:12-cr-00036-JCC-1
v.
MEMORANDUM*
JAMES POSTLETHWAITE,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, Senior District Judge, Presiding
Argued and Submitted July 10, 2014
Seattle, Washington
Before: TASHIMA and MURGUIA, Circuit Judges, and CARNEY, District
Judge.**
Defendant-appellant James Postlethwaite appeals his jury conviction for
conspiracy to distribute marijuana. We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
Before the district court, Postlethwaite moved to suppress the statements he
made on the day of his arrest on three separate grounds: (1) Postlethwaite was in
custody as soon as he was detained and should have been given Miranda warnings
immediately; (2) officials deliberately withheld Miranda warnings at first and only
later gave the warnings, in violation of Missouri v. Seibert, 542 U.S. 600 (2004),
rendering his statements inadmissible; and (3) Postlethwaite’s waiver of his
Miranda rights was involuntary because of the circumstances of his detention. The
district court denied the motion to suppress on all three grounds, and Postlethwaite
was convicted by a jury of conspiracy to distribute marijuana.
On appeal, Postlethwaite contends that two statements in particular he made
just after his arrest should have been suppressed because they were part of his
invocation of his right to counsel and thus inadmissible under the Fifth
Amendment. See United States v. Bushyhead, 270 F.3d 905 (9th Cir. 2001).
Postlethwaite argues that the district court erred in allowing the Government to
introduce and emphasize those two statements in its case-in-chief. However,
Postlethwaite acknowledges that he neither argued this particular basis for
suppression to the district court nor cited Bushyhead or related precedent below.
Under Federal Rules of Criminal Procedure 12(b) and 12(e), a defendant must
make any motion to suppress evidence before trial and a failure to do so, absent
2
good cause, results in waiver. We have clarified that, “just as a failure to file a
timely motion to suppress evidence constitutes a waiver, so too does a failure to
raise a particular ground in support of a motion to suppress.” United States v.
Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002) (emphasis added) (internal quotation
marks omitted). By failing to argue to the district court that his two statements
were part of his invocation of his right to counsel and were thus inadmissible,
Postlethwaite has waived that ground for suppression. He has placed the issue–his
sole issue on appeal–“beyond the scope of our ability to review [even] for plain
error.” Id. Because we are unable to review Postlethwaite’s issue on appeal, we
affirm.1
AFFIRMED.
1
There is no claim before us of ineffective assistance of counsel based on
counsel’s failure to make a Bushyhead argument in the district court, so we do not
consider such a claim.
3