                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 05 2011

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10159

              Plaintiff - Appellee,              D.C. No. 3:09-cr-08018-GMS-1

  v.
                                                 MEMORANDUM*
CALVIN BRYAN EVANSTON,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                       Argued and Submitted April 11, 2011
                            San Francisco, California

Before: KOZINSKI, Chief Judge, HAWKINS and GOULD, Circuit Judges.

       Calvin Bryan Evanston (“Evanston”) appeals his conviction for assault resulting

in serious bodily injury. He alleges error in the admission of various statements

because they were involuntary on the basis of intoxication and coercion, and because




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
he did not knowingly and intelligently waive his Miranda rights on those occasions

in which he was Mirandized. We affirm the admission of these statements.

Un-Mirandized August 11 and August 15 Statements

      The voluntariness of a statement is determined under the totality of the

circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Intoxication

does not preclude voluntariness unless it reaches the level of incapacitation that

overcomes the defendant’s free will. See Medeiros v. Shimoda, 889 F.2d 819, 823

(9th Cir. 1989). Evanston’s intoxication when he made these statements did not reach

this level. Furthermore, police coercion is required in order to render a confession

involuntary, Colorado v. Connelly, 479 U.S. 157, 167 (1986), but Evanston’s

outbursts and unsolicited statements on these dates cannot fairly be characterized as

confessions. Even if they were construed as such, there is no evidence of police

coercion that could have rendered the statements involuntary, so suppression is not

appropriate. See id.

Mirandized August 21, September 18, and October 6 Statements

      Evanston was informed of his Miranda rights on multiple occasions through the

use of federal Advice of Rights forms. He signed each form and initialed next to each

right, indicating both that he understood his rights and that he wished to waive them.

He at no point asked for an attorney, complained of confusion about his rights, or


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asked to stop the interviews. There was no police coercion. Under the totality of the

circumstances, the district court properly found that Evanston knowingly and

intelligently waived his Miranda rights on each occasion. See United States v. Crews,

502 F.3d 1130, 1140 (9th Cir. 2007). Further, any failure of the interviewing officers

to inform Evanston about the difference between tribal rights and Miranda rights did

not preclude a knowing and intelligent waiver because there was no indication—at the

time of questioning, at trial, or on appeal—that Evanston actually did not or could not

understand his federal rights. See United States v. Doe, 819 F.2d 206, 209 (9th Cir.

1985).

      ADMISSION OF EVIDENCE AFFIRMED.1




      1
        Evanston also appealed the district court’s decision to allow supplemental
closing arguments to break jury deadlock. In a separate published opinion, we vacate
Evanston’s conviction and remand for a new trial on the basis that the use of
supplemental closing arguments was an abuse of the trial judge’s discretion to manage
jury deliberations.

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