United States of America v. Victoria M. Jim

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTORIA M. JIM,
Defendant - Appellant.
No. 11-30102
D.C. No. 2:09-cr-02035-EFS-2
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted October 9, 2012
Seattle, Washington
Before: KOZINSKI, Chief Judge, TASHIMA and M. SMITH, Circuit Judges.
Defendant-Appellant Victoria Jim argues that she was subject to custodial
interrogation without being advised of her rights under Miranda v. Arizona, 384
U.S. 436 (1966), but she did not bring a motion to suppress on this basis prior to
FILED
NOV 27 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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trial. Failure to bring a motion to suppress prior to trial waives the issue for
appeal. United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002).
Although we may in our discretion address the Miranda issue for “cause
shown,” id.; United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir. 1987),
Jim has provided no explanation for her failure to bring the motion prior to trial.
See United States v. Wright, 215 F.3d 1020, 1026 (9th Cir. 2000).
In an opinion filed contemporaneously with this Memorandum, in the case
of United States v. Wahchumwah, No. 11-30101, we determined that Counts 4 and
5 of the indictment involving Ricky Wahchumwah, Jim’s co-defendant, are
multiplicitous. Both Jim and Wahchumwah are named in Counts 4 and 5, and Jim
challenged the counts as multiplicitous at trial. However, only Wahchumwah
appealed the issue. “We ‘will not ordinarily consider matters on appeal that are not
specifically and distinctly argued in appellant's opening brief.’” United States v.
Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (quoting Miller v. Fairchild Indus., Inc.,
797 F.2d 727, 738 (9th Cir. 1986)). However, “we may review an issue if the
failure to raise the issue properly did not prejudice the defense of the opposing
party.” Id. Here, the government fully addressed the multiplicity issue in its
answering brief to Wahchumwah and has not been prejudiced. Thus, for the
reasons addressed in the Wahchumwah opinion, one of Jim’s convictions on

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Counts 4 and 5 must be vacated. We leave to the district court the decision of
which count to vacate.
AFFIRMED in part and REVERSED AND REMANDED in part.

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