                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 21 2009

                                                                       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. 08-10567

              Plaintiff - Appellee,              D.C. No. 2:05-CR-00014-EHC-1

  v.
                                                 MEMORANDUM *
RODNEY AUDIE BELVADO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Earl H. Carroll, District Judge, Presiding

                     Argued and Submitted December 14, 2009
                             San Francisco, California

Before: W. FLETCHER, CLIFTON and IKUTA, Circuit Judges.

       This is Belvado’s second appeal of his conviction for first degree murder.

On the first appeal, this court remanded for consideration of whether Belvado’s

pre-confession waiver of Miranda rights was knowing and intelligent. “For

inculpatory statements made by a defendant during custodial interrogation to be



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
admissible in evidence, the defendant's ‘waiver of Miranda rights must be

voluntary, knowing, and intelligent.’ ” United States v. Garibay, 143 F.3d 534, 536

(9th Cir. 1998) (quoting United States v. Binder, 769 F.2d 595, 599 (9th Cir.

1985)).

      Upon remand, the district court found that Belvado’s waiver was knowing

and intelligent. We review that determination for clear error. Garibay, 143 F.3d at

536 (citing United States v. Cazares, 121 F.3d 1241, 1243 (9th Cir. 1997)). Under

the totality of the circumstances here and the case law of this circuit, the district

court’s conclusion was not clear error.

      AFFIRMED.




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