                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 07 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    14-30170

             Plaintiff-Appellee,                 D.C. No.
                                                 3:12-cr-05126-RBL-1
 v.

KENNETH RANDALE DOOR,
                                                 ORDER
             Defendant-Appellant.


Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.


      The court’s memorandum disposition filed on April 5, 2016, is hereby

amended by deleting “As the Vasquez exception does not apply, we decline to

review the forfeited claim,” which is at the end of Paragraph 2, and adding the

following language, which shall be placed immediately before Paragraph 3:

             Regardless of whether Door forfeited his Miranda claim by
      failing to file a timely motion to suppress, the government had a
      burden at trial to show that Door received adequate Miranda warnings
      (and that he waived his Miranda rights) before it could offer the
      statements at issue. See, e.g., United States v. Smith, 638 F.2d 131,
      133 (9th Cir. 1981). Door argues that the government failed to
      establish this foundation and, for that reason, the district court should
      not have admitted the statements. We agree that the government
      failed to meet its preliminary burden of showing that Special Agent
      Hansen provided Door with adequate Miranda warnings at the jail.
      But Door’s counsel did not raise this particular issue as a basis for
      excluding the statements at trial. We generally do not consider issues
      raised for the first time on appeal, and this case does not present
      circumstances analogous to those in which we have deviated from that
      norm. See United States v. Echavarria-Escobar, 270 F.3d 1265,
      1267-68 (9th Cir. 2001).

              Finally, even if Door’s counsel raised this argument during
      trial, the district court’s error was harmless beyond a reasonable
      doubt. The remaining evidence against Door, particularly his
      statements made over the phone while in pretrial detention,
      overwhelmingly established his guilt. See United States v. Ramirez,
      710 F.2d 535, 542-43 (9th Cir. 1983).

Appellant’s Petition for Rehearing is DENIED.

      The full court has been advised of the Petition for Rehearing En Banc and no

judge of the court has requested a vote on the Petition for Rehearing En Banc. Fed.

R. App. P. 35. Appellant’s Petition for Rehearing En Banc is therefore DENIED.

      Appellant may not file a subsequent petition for rehearing or rehearing en

banc. See Ninth Circuit General Order 5.3(a)(2).




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