                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 05 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30325

              Plaintiff - Appellee,              D.C. No.2: 10-cr-6096-FVS

  v.
                                                 MEMORANDUM*
RICHARD LEE CONN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                Fred L. Van Sickle, Senior District Judge, Presiding

                             Submitted June 2, 2014**
                               Seattle, Washington

Before: McKEOWN and WATFORD, Circuit Judges, and WHYTE, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
                                                                            Page 2 of 4
      Richard Lee Conn (“Conn”) pleaded guilty to being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 235 months

in custody. Conn appeals, challenging the denial of his motions to suppress

evidence and to dismiss the indictment. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

      The district court correctly determined that the search warrant for 2200 West

Shoshone #B 36 was supported by probable cause to believe that evidence of a

narcotics crime would be found therein. The confidential informant involved in the

affidavit, who had been shown to be reliable on prior occasions, conducted two

controlled purchases of narcotics. To complete each purchase, the informant and

the target went to Conn’s apartment building, and the target entered the building

and returned with the narcotics. These movements were observed by law

enforcement, confirming the informant’s statements in the affidavit. During the

second purchase, an officer observed the target exiting the defendant’s apartment.

The search warrant was thus supported by probable cause. United States v.

Ocampo, 937 F.2d 485, 490 (9th Cir. 1991) (“Probable cause exists when,

considering the totality of the circumstances, there is a fair probability that

contraband or evidence of a crime will be found in a particular place.”).
                                                                             Page 3 of 4
      The district court also properly found that Conn’s waiver of his Miranda

rights was intelligent, knowing, and voluntary. The evidence indicates that Conn

was highly responsive with law enforcement while remaining calm and collected.

Conn also acted rationally in understanding that he would be arrested and

requesting that phone numbers be retrieved so that he could make calls from jail to

secure his apartment and protect his property from theft. Conn’s waiver of his

Miranda rights was “made with a full awareness of both the nature of the right

being abandoned and the consequences of the decision to abandon it.” United

States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) (en banc). Therefore, even if

Conn was under the influence of drugs or alcohol, his “statement was the product

of a rational intellect and a free will.” Shackleford v. Hubbard, 234 F.3d 1072,

1080 (9th Cir. 2000).

      In addition, the district court properly denied Conn’s motion to dismiss the

indictment, which Conn based on his argument that there was not sufficient

evidence to link him to the firearm. An indictment returned by a legally constituted

grand jury that is valid on its face is sufficient to proceed to trial, even if based on

incompetent evidence. Lawn v. United States, 355 U.S. 339, 349 (1958). Moreover,

there was sufficient evidence to link Conn to the gun and support Conn’s plea. The

gun was discovered directly below the window where Conn was initially found by
                                                                         Page 4 of 4

law enforcement. The window had a screen with a hole in the right corner, and the

gun was observed with wire attached to the hammer that may have come from the

screen.

      Finally, Conn waived any argument that the district court erred in admitting

evidence found in the storage facility when he failed to provide any argument or

authority on that issue. See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir.

2010) (arguments “made in passing and not supported by citations to the record or

to case authority are generally deemed waived”).

AFFIRMED.
