                                                                              FILED
                           NOT FOR PUBLICATION                                  SEP 30 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10379

             Plaintiff-Appellee,                 D. Ct. No. 4:11-cr-03579-RCC-
                                                 DTF
  v.

MARIA SANCHEZ-EQUIHUA,                           MEMORANDUM*

             Defendant-Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    Raner C. Collins, District Judge, Presiding

                    Argued and Submitted September 10, 2013
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and TIMLIN, Senior District
Judge.**

       Appellant Maria Sanchez-Equihua appeals her conviction by jury trial for

possession of a firearm and ammunition by an illegal alien in violation of 18

U.S.C. §§ 922(g)(5)(A) and 924(a)(2). We affirm. On appeal, Sanchez-Equihua

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
argues (1) that the district court erred by refusing to suppress certain statements she

made prior to her arrest on the ground that the statements were spontaneous, as she

asserts they were in fact obtained as a result of conduct and/or statements by police

officers that were functionally equivalent to interrogation, and (2) that the district

court erred in refusing her request for a jury instruction on the innocent possession

of firearms, although she acknowledges that this contention is foreclosed by Ninth

Circuit precedent.

      1. This court reviews de novo a district court’s denial of a motion to

suppress, while the district court’s factual findings are reviewed for clear error.

United States v. Pope, 686 F.3d 1078, 1080 (9th Cir. 2012) (quoting United States

v. Willis, 431 F.3d 709, 713 n.3 (9th Cir. 2005)). The test for whether

governmental conduct constituted the functional equivalent of interrogation is

whether the police knew or should have known that their words or conduct would

likely elicit an incriminating response. See Rhode Island v. Innis, 446 U.S. 291,

301 (1980); see also United States v. Foster, 227 F.3d 1096, 1103 (9th Cir. 2000)

(“The standard for determining whether an officer’s comments or actions constitute

the ‘functional equivalent’ of interrogation is quite high . . . .”) (citation omitted).

Here, the undisputed facts are that Sanchez was outside on the landing, when a

detective inside the apartment made a comment about having found a shotgun.


                                            2
This comment was not designed to invite a response or encourage Sanchez to make

an incriminating remark, as it was not made directly to her or even in her presence.

Innis, 446 U.S. at 302-03. There is nothing in the record to suggest that Sanchez

was peculiarly susceptible to comments such as these, or that the detective should

have known that such a comment made outside her presence would elicit an

incriminating statement. Id. at 303; United States v. Thierman, 678 F.2d 1331,

1337 (9th Cir. 1982). Therefore, we affirm the district court’s partial denial of her

motion to suppress and the denial of her motion in limine on the same ground,

which resulted in the admission at trial of Sanchez’s statement that she had a gun

after she overheard the detective’s comment.

      2.     The question of whether a proposed jury instruction is supported by

the law is reviewed de novo. Hunter v. Cnty. of Sacramento, 652 F.3d 1225, 1232

(9th Cir. 2011). As acknowledged by Sanchez, this issue is foreclosed by our

decision in United States v. Johnson, 459 F.3d 990, 994-96 (9th Cir. 2006).

Therefore, we affirm the district court’s decision not to give the requested innocent

possession jury instruction. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.

2001).

      The judgment of the district court is AFFIRMED.




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