                                                                           FILED
                           NOT FOR PUBLICATION                             JUN 10 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50636

              Plaintiff - Appellee,              D.C. No. 3:12-cr-04477-LAB-1

 v.
                                                 MEMORANDUM*
MIGUEL OSUNA-ALVAREZ,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                        Argued and Submitted May 6, 2015
                              Pasadena, California

Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.

      Miguel Osuna-Alvarez (“Osuna”) appeals his convictions for importation of

methamphetamine, in violation of 21 U.S.C. §§ 952 and 960, and aggravated

identity theft, in violation of 18 U.S.C. § 1028A. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     Osuna first contends that his jury trial waiver is invalid because it was

not made voluntarily, knowingly, and intelligently. “We review the adequacy of a

jury-trial waiver de novo.” United States v. Shorty, 741 F.3d 961, 965 (9th Cir.

2013). Where, as here, “the defendant’s mental or emotional state is a substantial

issue,” the district court is required to conduct “an in-depth colloquy which

reasonably assures the court that under the particular facts of the case, the signed

waiver was voluntarily, knowingly, and intelligently made.” United States v.

Christensen, 18 F.3d 822, 825–26 (9th Cir. 1994). We have clarified that “[a]n in-

depth colloquy . . . includes instructing the defendant of the four facts listed in

Cochran.” Shorty, 741 F.3d at 966 (citing United States v. Cochran, 770 F.2d 850,

853 (9th Cir. 1985) (The district court should inform the defendant that “(1) twelve

members of the community compose a jury; (2) the defendant may take part in jury

selection; (3) jury verdicts must be unanimous; and (4) the court alone decides

guilt or innocence if the defendant waives a jury trial.”)). In addition, “the district

court should question the defendant to ascertain whether the defendant understands

the benefits and burdens of a jury trial and freely chooses to waive a jury.” United

States v. Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997).

      The district court informed Osuna of the four facts listed in Cochran. When

the court asked Osuna whether he understood, Osuna responded that he did. When


                                            2
subsequently questioned as to whether he would like to proceed before a jury or

before the district court judge, Osuna answered, “By you.” The court’s detailed

instructions and colloquy were sufficient to “reasonably assure[]” the district court

that Osuna’s waiver was knowing, voluntary, and intelligent. See Christensen, 18

F.3d at 826. We therefore affirm the validity of Osuna’s jury trial waiver.

      2.     Osuna next contends that the district court erred in deeming Osuna

competent to stand trial. We review for clear error. United States v. Gastelum-

Almeida, 298 F.3d 1167, 1171 (9th Cir. 2002). “On defendant’s appeal the

evidence relating to his competency must be considered in the light most favorable

to the Government.” United States v. Chischilly, 30 F.3d 1144, 1150 (9th Cir.

1994), overruled on other grounds by United States v. Preston, 751 F.3d 1008,

1015–20 (9th Cir. 2014). Although Osuna was deemed incompetent shortly after

his arrest, he was committed to the custody of the Attorney General for four

months of treatment and hospitalization. Following treatment and observation, the

treating facility’s psychiatric staff determined that, although Osuna still suffered

from major depressive disorder, his competency to stand trial had been restored.

The staff also diagnosed Osuna with malingering, concluding that psychological

testing revealed a high likelihood that Osuna was deliberately feigning symptoms

and deficits in his legal knowledge. These conclusions were consistent with


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Osuna’s earlier competency evaluation, which acknowledged the possibility that

Osuna’s mental health would improve with treatment. Viewing the evidence in the

light most favorable to the Government, the district court properly relied on the

diagnoses and recommendations set forth in Osuna’s most current psychological

evaluation to conclude that Osuna had regained competence to stand trial.

      3.     Osuna argues that the district court erred by admitting

methamphetamine evidence, despite the fact that the seal on the package

containing the evidence had been broken. We review a district court’s evidentiary

rulings for an abuse of discretion. United States v. Gadson, 763 F.3d 1189, 1199

(9th Cir. 2014). Where, as here, a defendant identifies a defect in the chain of

custody, “[t]he prosecution must introduce sufficient proof so that a reasonable

juror could find that [the items] are in substantially the same condition as when

they were seized, and may admit [the items] if there is a reasonable probability [the

items] have not been changed in important respects.” United States v. Matta-

Ballesteros, 71 F.3d 754, 768 (9th Cir. 1995). “Furthermore, a defect in the chain

of custody goes to the weight, not the admissibility, of the evidence introduced.”

Id. at 769. Here, both investigating officers testified that the methamphetamine

evidence was in substantially the same condition as when it was seized and tested.




                                          4
Therefore, the district court did not abuse its discretion by admitting the

methamphetamine evidence.

      4.     Osuna argues that he did not voluntarily waive his Miranda rights

and, therefore, that the district court erred by admitting Osuna’s post-arrest

statements. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). We review the

question of voluntariness de novo. Cox v. Del Papa, 542 F.3d 669, 675 n.6 (9th

Cir. 2008). A Miranda waiver “must have been made with a full awareness of

both the nature of the right being abandoned and the consequences of the decision

to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). However, “coercive

police activity is a necessary predicate to the finding that a confession is not

‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth

Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). Thus, where a

defendant contends that his statements were involuntary in light of his mental

illness, he must present evidence to show that his “will was overborne at the time

he confessed.” United States v. Crawford, 372 F.3d 1048, 1060 (9th Cir. 2004) (en

banc) (internal quotation marks omitted) (citation omitted). Osuna does not

introduce any evidence that the police coerced or overbore his will at the time of

his confession. Therefore, we affirm the district court’s admission of Osuna’s

post-arrest statements.


                                           5
      5.     Last, Osuna argues that the evidence was insufficient to sustain his

conviction for importation of methamphetamine because the Government failed to

prove beyond a reasonable doubt that Osuna had intentionally brought drugs into

the United States.1 See 21 U.S.C. §§ 952, 960. A rational jury could conclude

from the evidence at trial that Osuna intentionally brought drugs into the U.S.,

given that Osuna was the driver and sole occupant of a vehicle in which a large

quantity of drugs were discovered. See United States v. Diaz-Cardenas, 351 F.3d

404, 407 (9th Cir. 2003) (“A jury can infer knowledge when an individual is the

driver and sole occupant of the vehicle. A jury can also infer knowledge from

possession of a large quantity of drugs.” (internal citation omitted)); United States

v. Whitehead, 200 F.3d 634, 639 (9th Cir. 2000) (holding that possession of large

quantity of narcotics with a high street value “was virtually conclusive of guilt”).

Therefore, we hold that the evidence was sufficient to support Osuna’s conviction

for importation of methamphetamine.

      AFFIRMED.




      1
        Osuna also challenges the sufficiency of the evidence underlying his
conviction for aggravated identity theft. We address this issue in a
contemporaneously filed opinion.

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