                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 28 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10542

                Plaintiff-Appellee,             D.C. No.
                                                4:15-cr-00033-DMR-2
 v.

AARONAE RIANA SMITH,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Northern District of California
                    James Donato, District Judge, Presiding

                             Submitted June 13, 2018**
                             San Francisco, California

Before: MURPHY,*** PAEZ, and IKUTA, Circuit Judges.

      Aaronae Smith appeals a district court order modifying her term of

probation. Following an evidentiary hearing, the district court concluded Smith

violated a condition of supervision that she not associate with “any person

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
convicted of a felony.” The district court continued Smith’s probation, but

extended the term for two years. See 18 U.S.C. § 3565(a)(1). Smith asserts

the district court erred in considering statements she made when arrested by

Solano County Sheriff’s Department deputies, arguing the statements were

obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and were

not voluntarily made. She further asserts the district court’s finding that she

violated a condition of her supervised release is not support ed by sufficient

evidence. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      For purposes of resolving Smith’s appeal, we assume, without

deciding, that the Fifth Amendment’s privilege against self-incrimination

applies in the context of a proceeding that might result in revocation of

probation. The adequacy of a Miranda warning is reviewed de novo.

United States v. Williams, 435 F.3d 1148, 1151 (9th Cir. 2006). “Whether

the waiver was knowing and intelligent is a question of fact that we revi ew

for clear error. Whether the waiver was voluntary is a mixed question of

fact and law, which we review de novo.” United States v. Amano, 229 F.3d

801, 803 (9th Cir. 2000).

      Smith’s challenge to the adequacy of the Miranda warnings she

received focuses exclusively on the use of the word “could” in the following

warning: “You have a right to a lawyer, to have a lawyer present both before


                                         2
and during questioning; if you can’t afford to hire a lawyer, one could be

provided to you free of charge.” Smith asserts the decision in United States

v. Botello-Rosales, 728 F.3d 865, 867 (9th Cir. 2013), establishes that the

warning is inadequate. In Botello-Rosales, however, a serious translation

error was coupled with the use of the term “could,” which led the court to

conclude the overall warning was so “affirmatively misleading” as to not

satisfy Miranda’s strictures. Id. There is no such compound error here and

Smith has not identified a single case indicating the use of language like

“could be provided,” standing alone, renders a Miranda warning misleading.

Miranda does not rigidly require a “precise formulation of the warnings

given a criminal defendant.” Duckworth v. Eagan, 492 U.S. 195, 202

(1989) (internal quotation marks and citation omitted). “[N]o talismanic

incantation is required to satisfy its strictures.” Id. (internal quotation

marks, citation, and alteration omitted).

      The DVD of the interrogation confirms Smith explicitly and implicitly

waived her Miranda rights and the waiver and resulting statements were

voluntary. There is no evidence Smith was coerced, intimidated, or forced

to make any statement. The record amply demonstrates Smith’s wil l was

not overborne at any point in the interrogation. As the district court found,




                                        3
Smith was “composed and forthright” in her statements during the

interrogation.

      The district court’s finding that Smith violated a condition of her

supervision by knowingly associating with a felon is supported by sufficient

evidence. The parties stipulated Isaiah McClain is a felon. Smith had been

romantic partners with McClain for approximately two years ; this period of

time coincided with McClain’s alleged murder of a young woman; and

Smith was aware of allegations McClain was involved in a homicide.

During her interview with deputies, Smith conceded she knew that McClain

had been in jail and was a fugitive who cut off his ankle monitor. Smith

specifically stated she knew “what type of person” McClain was and “for

[her] safety” she avoided acquiring information about his criminal activities.

She acknowledged McClain used her phone because he thought his phone

was likely wiretapped. Despite an obligation to include her contacts with

McClain on her probation reports, without regard to whether or not he was a

felon, Smith failed to do so. The district court reasonably concluded this

omission demonstrated consciousness of guilt. In sum, the evidence of

Smith’s long association with McClain and inference of consciousness of

guilt are “such as reasonably to satisfy” the district court that Smith knew




                                      4
McClain was a felon. United States v. Guadarrama, 742 F.2d 487, 489 (9th

Cir. 1984) (per curiam).

     AFFIRMED.




                                   5
