                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 31 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30126

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00036-JCC-1

  v.
                                                 MEMORANDUM*
JAMES POSTLETHWAITE,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Western District of Washington
               John C. Coughenour, Senior District Judge, Presiding

                         Argued and Submitted July 10, 2014
                                Seattle, Washington

Before: TASHIMA and MURGUIA, Circuit Judges, and CARNEY, District
Judge.**

       Defendant-appellant James Postlethwaite appeals his jury conviction for

conspiracy to distribute marijuana. We have jurisdiction pursuant to 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.
       **
             The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
      Before the district court, Postlethwaite moved to suppress the statements he

made on the day of his arrest on three separate grounds: (1) Postlethwaite was in

custody as soon as he was detained and should have been given Miranda warnings

immediately; (2) officials deliberately withheld Miranda warnings at first and only

later gave the warnings, in violation of Missouri v. Seibert, 542 U.S. 600 (2004),

rendering his statements inadmissible; and (3) Postlethwaite’s waiver of his

Miranda rights was involuntary because of the circumstances of his detention. The

district court denied the motion to suppress on all three grounds, and Postlethwaite

was convicted by a jury of conspiracy to distribute marijuana.

      On appeal, Postlethwaite contends that two statements in particular he made

just after his arrest should have been suppressed because they were part of his

invocation of his right to counsel and thus inadmissible under the Fifth

Amendment. See United States v. Bushyhead, 270 F.3d 905 (9th Cir. 2001).

Postlethwaite argues that the district court erred in allowing the Government to

introduce and emphasize those two statements in its case-in-chief. However,

Postlethwaite acknowledges that he neither argued this particular basis for

suppression to the district court nor cited Bushyhead or related precedent below.

Under Federal Rules of Criminal Procedure 12(b) and 12(e), a defendant must

make any motion to suppress evidence before trial and a failure to do so, absent


                                          2
good cause, results in waiver. We have clarified that, “just as a failure to file a

timely motion to suppress evidence constitutes a waiver, so too does a failure to

raise a particular ground in support of a motion to suppress.” United States v.

Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002) (emphasis added) (internal quotation

marks omitted). By failing to argue to the district court that his two statements

were part of his invocation of his right to counsel and were thus inadmissible,

Postlethwaite has waived that ground for suppression. He has placed the issue–his

sole issue on appeal–“beyond the scope of our ability to review [even] for plain

error.” Id. Because we are unable to review Postlethwaite’s issue on appeal, we

affirm.1

      AFFIRMED.




      1
       There is no claim before us of ineffective assistance of counsel based on
counsel’s failure to make a Bushyhead argument in the district court, so we do not
consider such a claim.

                                           3
