United States of America v. Kenneth Randale Door

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH RANDALE DOOR,
Defendant-Appellant.
No. 14-30170
D.C. No.
3:12-cr-05126-RBL-1
ORDER
Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.
The court’s memorandum disposition filed on April 5, 2016, is hereby
amended by deleting “As the Vasquez exception does not apply, we decline to
review the forfeited claim,” which is at the end of Paragraph 2, and adding the
following language, which shall be placed immediately before Paragraph 3:
Regardless of whether Door forfeited his Miranda claim by
failing to file a timely motion to suppress, the government had a
burden at trial to show that Door received adequate Miranda warnings
(and that he waived his Miranda rights) before it could offer the
statements at issue. See, e.g., United States v. Smith, 638 F.2d 131,
133 (9th Cir. 1981). Door argues that the government failed to
establish this foundation and, for that reason, the district court should
not have admitted the statements. We agree that the government
failed to meet its preliminary burden of showing that Special Agent
Hansen provided Door with adequate Miranda warnings at the jail.
FILED
SEP 07 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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But Door’s counsel did not raise this particular issue as a basis for
excluding the statements at trial. We generally do not consider issues
raised for the first time on appeal, and this case does not present
circumstances analogous to those in which we have deviated from that
norm. See United States v. Echavarria-Escobar, 270 F.3d 1265,
1267-68 (9th Cir. 2001).
Finally, even if Door’s counsel raised this argument during
trial, the district court’s error was harmless beyond a reasonable
doubt. The remaining evidence against Door, particularly his
statements made over the phone while in pretrial detention,
overwhelmingly established his guilt. See United States v. Ramirez,
710 F.2d 535, 542-43 (9th Cir. 1983).
Appellant’s Petition for Rehearing is DENIED.
The full court has been advised of the Petition for Rehearing En Banc and no
judge of the court has requested a vote on the Petition for Rehearing En Banc. Fed.
R. App. P. 35. Appellant’s Petition for Rehearing En Banc is therefore DENIED.
Appellant may not file a subsequent petition for rehearing or rehearing en
banc. See Ninth Circuit General Order 5.3(a)(2).
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