                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 20 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-50395

              Plaintiff - Appellee,               D.C. No. 3:11-cr-05684-LAB-1

  v.
                                                  MEMORANDUM*
ALEJANDRO PEREZ,

              Defendant - Appellant.


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

                       Argued and Submitted August 7, 2013
                               Pasadena, California

Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.

       Alejandro Perez appeals his conviction of importing methamphetamine into

the United States. He challenges the district court’s failure to suppress statements

made during an interrogation that exceeded the six-hour “safe harbor” period. He

also challenges the district court’s finding that his custodial statements were



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
voluntary, and argues that the district court committed reversible error when it

instructed the jury that the element of knowledge could only be proven by

circumstantial evidence. We affirm.

      We do not reach the merits of defendant’s Federal Rule of Criminal

Procedure 5 claim because it was waived. We review de novo issues involving

waiver. United States v. Jackson, 697 F.3d 1141, 1143 (9th Cir. 2012). Perez’s

motion to suppress was made solely on grounds of voluntariness, not on delayed

presentment. Perez sought dismissal based on the multi-day delay in presentment1

but did not identify to the district court any statements he contended should be

suppressed, let alone focus attention on whether there was any inappropriate delay

in presentment on the day of arrest.2 Given that the defendant bears the burden of


      1
        The motion to dismiss under Rule 5 did not provide a sufficient basis for
appellate review. The only reference to Perez was his name in the caption. The
motion included no facts relating to Perez’s experience nor any supporting
affidavit.
      2
        It is true that the district court may have been mistaken if its comments are
taken, as Perez argues, to express the view that a delay in Perez’s presentment
could be justified by the agents’ desire to interrogate him or because interrogation
had commenced but had not concluded. “Delay for the purpose of interrogation is
the epitome of ‘unnecessary delay.’” Corley v. United States, 556 U.S. 303, 308
(2009). But Perez never argued to the district court that there were statements made
on the day of arrest that should be suppressed, and the government had no
opportunity to present evidence or arguments in response to the issue. The
question of whether there was justification for delaying presentment to the
following day was never fully addressed by the district court.
                                          2
proving grounds for exclusion, it was incumbent on Perez to clearly raise the issue

below. United States v. Van Poyck, 77 F.3d 285, 288 (9th Cir. 1996). By failing to

adequately comply with Federal Rule of Criminal Procedure 12, Perez waived any

dispute about suppression of statements due to a Rule 5 violation, and placed the

issue beyond our ability to review for plain error. United States v. Wright, 215 F.3d

1020, 1026 (9th Cir. 2000).

      Here, there was no clear error in the district court’s finding that Perez’s

custodial statements were voluntary. Perez did not demonstrate that “under the

totality of the circumstances, his will was overborne.” United States v. Harrison,

34 F.3d 886, 890 (9th Cir. 1994). That a suspect remains in control of his responses

and consistently denies guilt is compelling evidence that his will was not

overborne. Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). The district

court did not clearly err in finding that Perez remained calm and that there was

nothing remarkable about the interrogation.

      Nor was there error in the jury instructions. On de novo review, even if clear

error exists, we do not reverse if the error was harmless. United States v. Rubio-

Villareal, 967 F.2d 294, 296 n.3 (9th Cir. 1992). The district court properly

instructed jurors to consider both direct and circumstantial evidence. Finally, the




                                          3
instruction did not relieve the government of its burden of proof. The instructions

correctly referenced the government’s burden on eight occasions.

      AFFIRMED..




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