                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 27 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30102

              Plaintiff - Appellee,              D.C. No. 2:09-cr-02035-EFS-2

  v.
                                                 MEMORANDUM *
VICTORIA M. JIM,

              Defendant - Appellant.



                    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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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


                                           2
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.




                                         3
