United States of America v. Roger Cha

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROGER CHA,
Defendant-Appellant.
No. 17-10091
D.C. No.
1:12-cr-00319-AWI-BAM-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted September 14, 2018
San Francisco, California
Before: RAWLINSON, WATFORD, and FRIEDLAND, Circuit Judges.
Defendant-Appellant Roger Cha (Cha) appeals his conviction for one count
of possession of visual content depicting a minor engaged in sexually explicit
conduct in violation of 18 U.S.C. § 2252(a)(4)(B). Cha alleges that the district
court should have suppressed inculpatory statements made to law enforcement
FILED
MAR 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

-- 1 of 4 --

because his Miranda1 waiver was not voluntary, knowing, and intelligent. “We
review a denial of a motion to suppress and whether a defendant is constitutionally
entitled to Miranda warnings de novo.” United States v. Craighead, 539 F.3d
1073, 1082 (9th Cir. 2008) (citation omitted). We also review de novo the
voluntariness of a Miranda waiver, and we review for clear error whether the
waiver was made knowingly and intelligently. See United States v.
Labrada-Bustamante, 428 F.3d 1252, 1259 (9th Cir. 2005). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
Under the totality of the circumstances, Cha was in custody during his
interrogation and therefore entitled to Miranda warnings. See Craighead, 539 F.3d
at 1082-84 (listing factors to consider when evaluating whether a defendant was in
custody during an in-home interrogation). The Miranda advisement given to Cha
prior to questioning was adequate, as the agent provided a straightforward reading
of the requisite warnings that “reasonably convey[ed]” Cha’s constitutional rights.
United States v. Loucious, 847 F.3d 1146, 1149 (9th Cir. 2017) (citation omitted).
Cha’s Miranda waiver was voluntary, as “[t]here was no evidence in the
record of police overreaching,” and the agents made no threats or promises to Cha
before he waived his rights. Labrada-Bustamante, 428 F.3d at 1259 (citation and
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2

-- 2 of 4 --

internal quotation marks omitted). Cha verbally indicated that he understood his
rights, signed a written waiver, and responded appropriately to the agents’
questions. See United States v. Vallejo, 237 F.3d 1008, 1014-1015 (9th Cir.), as
amended, 246 F.3d 1150 (9th Cir. 2001). Cha asked for clarification once, but he
did not otherwise indicate that he had any difficulty understanding the
conversation. See id. Because a review of the record does not leave us “with the
definite and firm conviction that a mistake has been committed,” we conclude that
the district court did not clearly err in concluding that Cha’s Miranda waiver also
was knowing and intelligent. United States v. Hinkson, 585 F.3d 1247, 1260 (9th
Cir. 2009) (citation omitted); see also Labrada-Bustamante, 428 F.3d at 1259
(reviewing for clear error).
Cha asserts that the district court further erred by failing to sua sponte give a
hearsay limiting instruction addressing the admission of portions of Cha’s
interrogation, and by failing to sua sponte give a dual-role instruction for the
testimony of an investigating agent. However, any error was rendered harmless in
view of the admission of Cha’s confessions. See United States v. Bailey, 696 F.3d
794, 804 (9th Cir. 2012) (recognizing that a district court’s evidentiary error may
be harmless if the defendant’s incriminating confession was properly admitted).
3

-- 3 of 4 --

Cha also asserts that the district court erred by declining to give Cha’s
proposed instruction detailing his theory of defense. But Cha’s legal theory was
fairly and adequately covered by other instructions, see United States v. Del Toro-
Barboza, 673 F.3d 1136, 1147 (9th Cir. 2012), and the district court was not
required to set out his version of the facts. See Fed. R. Crim. P. 30(a).
AFFIRMED.
4

-- 4 of 4 --