                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 28 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-10091

              Plaintiff-Appellee,                D.C. No.
                                                 1:12-cr-00319-AWI-BAM-1
 v.

ROGER CHA,                                       MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                    Argued and Submitted September 14, 2018
                            San Francisco, California

Before: RAWLINSON, WATFORD, and FRIEDLAND, Circuit Judges.

      Defendant-Appellant Roger Cha (Cha) appeals his conviction for one count

of possession of visual content depicting a minor engaged in sexually explicit

conduct in violation of 18 U.S.C. § 2252(a)(4)(B). Cha alleges that the district

court should have suppressed inculpatory statements made to law enforcement



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
because his Miranda1 waiver was not voluntary, knowing, and intelligent. “We

review a denial of a motion to suppress and whether a defendant is constitutionally

entitled to Miranda warnings de novo.” United States v. Craighead, 539 F.3d

1073, 1082 (9th Cir. 2008) (citation omitted). We also review de novo the

voluntariness of a Miranda waiver, and we review for clear error whether the

waiver was made knowingly and intelligently. See United States v.

Labrada-Bustamante, 428 F.3d 1252, 1259 (9th Cir. 2005). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      Under the totality of the circumstances, Cha was in custody during his

interrogation and therefore entitled to Miranda warnings. See Craighead, 539 F.3d

at 1082-84 (listing factors to consider when evaluating whether a defendant was in

custody during an in-home interrogation). The Miranda advisement given to Cha

prior to questioning was adequate, as the agent provided a straightforward reading

of the requisite warnings that “reasonably convey[ed]” Cha’s constitutional rights.

United States v. Loucious, 847 F.3d 1146, 1149 (9th Cir. 2017) (citation omitted).

      Cha’s Miranda waiver was voluntary, as “[t]here was no evidence in the

record of police overreaching,” and the agents made no threats or promises to Cha

before he waived his rights. Labrada-Bustamante, 428 F.3d at 1259 (citation and


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
                                         2
internal quotation marks omitted). Cha verbally indicated that he understood his

rights, signed a written waiver, and responded appropriately to the agents’

questions. See United States v. Vallejo, 237 F.3d 1008, 1014-1015 (9th Cir.), as

amended, 246 F.3d 1150 (9th Cir. 2001). Cha asked for clarification once, but he

did not otherwise indicate that he had any difficulty understanding the

conversation. See id. Because a review of the record does not leave us “with the

definite and firm conviction that a mistake has been committed,” we conclude that

the district court did not clearly err in concluding that Cha’s Miranda waiver also

was knowing and intelligent. United States v. Hinkson, 585 F.3d 1247, 1260 (9th

Cir. 2009) (citation omitted); see also Labrada-Bustamante, 428 F.3d at 1259

(reviewing for clear error).

      Cha asserts that the district court further erred by failing to sua sponte give a

hearsay limiting instruction addressing the admission of portions of Cha’s

interrogation, and by failing to sua sponte give a dual-role instruction for the

testimony of an investigating agent. However, any error was rendered harmless in

view of the admission of Cha’s confessions. See United States v. Bailey, 696 F.3d

794, 804 (9th Cir. 2012) (recognizing that a district court’s evidentiary error may

be harmless if the defendant’s incriminating confession was properly admitted).




                                           3
      Cha also asserts that the district court erred by declining to give Cha’s

proposed instruction detailing his theory of defense. But Cha’s legal theory was

fairly and adequately covered by other instructions, see United States v. Del Toro-

Barboza, 673 F.3d 1136, 1147 (9th Cir. 2012), and the district court was not

required to set out his version of the facts. See Fed. R. Crim. P. 30(a).

      AFFIRMED.




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