FILED
                           NOT FOR PUBLICATION
                                                                            JAN 21 2020
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50432

              Plaintiff-Appellee,                D.C. No. 3:15-cr-03175-JM-1

 v.
                                                 MEMORANDUM*
DAVID ENRIQUE MEZA,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                     Jeffrey T. Miller, District Judge, Presiding

                     Argued and Submitted December 9, 2019
                              Pasadena, California

Before: N.R. SMITH and WATFORD, Circuit Judges, and KORMAN,** District
Judge.

      David Meza appeals his convictions for: (1) foreign domestic violence

resulting in death under 18 U.S.C. § 2261(a)(1), and (2) conspiracy to obstruct

justice under 18 U.S.C. § 1512(c)(2), (k). Specifically, Meza argues that: (1) he

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
was not given adequate Miranda warnings, (2) he did not knowingly and

intelligently waive his Miranda rights, (3) the district court abused its discretion in

denying his request for a “heat of passion” defense instruction, and (4) the

indictment for the obstruction offense failed to properly allege the mens rea

element of conspiracy to obstruct justice. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

1.    The adequacy of a Miranda warning is reviewed de novo. See United States

v. Loucious, 

, 1148–49 (9th Cir. 2017). “The Supreme Court has not

required a ‘precise formulation of the warnings given’ to a suspect and has stressed

that a ‘talismanic incantation’ is not necessary to satisfy Miranda’s ‘strictures.’”

(quoting California v. Prysock, 

, 359 (1981) (per curiam)).

“[T]he inquiry is simply whether the warnings reasonably convey to a suspect his

rights.” 

v. Eagan, 

, 203 (1989)). In this case,

despite the detective’s prefatory statements and his casual manner of delivering the

Miranda advisal, the Miranda advisal provided to Meza was constitutionally

sufficient, because it “reasonably convey[ed]” to Meza his rights. 

a defendant knowingly and intelligently waives his Miranda rights

is a question of fact we review for clear error. See United States v. Price, 

777, 791 (9th Cir. 2019). Furthermore, in determining whether a Miranda waiver

is knowing and intelligent, we consider the totality of the circumstances, including:

      (i) the defendant's mental capacity; (ii) whether the defendant signed a
      written waiver; (iii) whether the defendant was advised in his native
      tongue or had a translator; (iv) whether the defendant appeared to
      understand his rights; (v) whether the defendant's rights were
      individually and repeatedly explained to him; and (vi) whether the
      defendant had prior experience with the criminal justice system.

(quoting United States v. Crews, 

, 1140 (9th Cir. 2007)).

In this case, while Meza did not sign a written waiver, there is no question as to

Meza’s mental capacity, there was no language barrier, Meza appeared to

understand his rights, Meza’s rights were individually explained to him, and Meza

had prior experience with the criminal justice system. For these reasons, the

district court’s determination that Meza knowingly and intelligently waived his

Miranda rights was not clearly erroneous.

3.    “Where the parties dispute whether the evidence supports a proposed

instruction, we review a district court’s rejection of the instruction for an abuse of

discretion.” United States v. Bello–Bahena, 

, 1089 (9th Cir. 2005).

Though the evidentiary standard is not high in this context, see 

“there

still must be some evidence demonstrating the elements of the defense before an

instruction must be given,” United States v. Spentz, 

, 818 (9th Cir.



                                           3
2011). Because there is no evidence in the record showing “provocation . . . such

as would arouse a reasonable and ordinary person to kill someone” that would

support a “heat of passion” instruction, United States v. Roston, 

,

1291 (9th Cir. 1993) (quoting United States v. Wagner, 

, 1487 (9th

Cir. 1987)), the district court did not abuse its discretion in denying Meza’s

proposed instruction.

4.    Meza’s argument that Count II of the indictment should have been dismissed

(because it did not expressly state that the subsequent proceeding must actually be

foreseen) is squarely foreclosed by Marinello v. United States, 

(2018). In that case, the Supreme Court stated that the government must only show

“that the proceeding was pending at the time the defendant engaged in the

obstructive conduct or, at the least, was then reasonably foreseeable by the

defendant.” 

Because this is precisely what the superceding indictment

alleged, Meza’s argument fails.

      AFFIRMED.




                                           4
                                                                          FILED
                                                                           JAN 21 2020
United States v. David Enrique Meza, Case No. 17-50432
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS

KORMAN, District Judge, concurring:

      I concur in full in the memorandum affirming the judgment of conviction.

Nevertheless, because of the extent to which the defendant presses his argument over

the prefatory statements and casual manner in which the Miranda warnings were

given, I write briefly to explain why any defect was harmless. The Supreme Court

has held that “[w]hen reviewing the erroneous admission of an involuntary

confession, the appellate court, as it does with the admission of other forms of

improperly admitted evidence, simply reviews the remainder of the evidence against

the defendant to determine whether the admission of the confession was harmless

beyond a reasonable doubt.” Arizona v. Fulminante, 

, 310 (1991).

      The uncontroverted evidence, independent of the post-arrest statement, is as

follows. In 2013, Jake Clyde Merendino, whom the defendant was found guilty of

murdering, was a wealthy man in his fifties living in Houston, Texas. That summer,

he took a vacation to San Diego, where he responded to an online ad posted by David

Enrique Meza, a 24-year-old male prostitute. Meza came to Merendino’s hotel room

and stayed for an hour; a few days later, the two met again for dinner. After the

vacation, Merendino paid for Meza to visit him in Houston, where they spent a

weekend together. Merendino visited Meza once more that summer in San Diego,



                                         1
where he bought Meza a car, paid for him to enroll in college courses, and began

sending him regular wire payments.

      While his relationship with Merendino developed, Meza was also dating a 19-

year-old woman named Taylor Langston. The pair got engaged in September 2013.

Throughout the following year, Merendino visited Meza in San Diego several times,

bought him another car and a motorcycle, and added him to his bank account. In

December, Merendino wrote out a will leaving “everything” to Meza. Soon after,

Merendino bought a condo in Rosarito, Mexico, just across the border from San

Diego, and listed Meza as the beneficiary of the condo in case of his death. Meza

meanwhile told Langston and his family that the reason for his absences and the

source of his income was a man named “George,” for whom Meza claimed to be

working as a personal assistant. In October 2014, Langston became pregnant. As the

due date approached, Meza began telling people that “George” was sick and

insinuated that he did not have long to live. He and Langston made plans about what

they would do “when we get George’s car.”

      In late April 2015, Merendino left Texas to move with Meza into the condo

in Rosarito. On May 1, after signing the closing documents together, Meza and

Merendino checked in to a nearby hotel, as the condo was undergoing renovations.

They spent the evening together until about 10:20 p.m., when Meza rode his

motorcycle back to his apartment in San Diego. At approximately 12:30 a.m., Meza


                                         2
rode back to Mexico and stopped on the side of the road a few miles from the hotel.

At about 2:00 a.m., Meza called Merendino and asked him to come meet him

because his motorcycle had stalled. Merendino left the hotel in his car and did not

return. That morning, Mexican police found Merendino’s body. Merendino had been

stabbed 24 times, including two large slash wounds to the neck. His body had then

been dragged and thrown into a nearby ravine. GPS data puts Meza at the scene of

the crime when it occurred and video surveillance showed that he changed his

clothes before crossing back over the border to the United States at about 4:00 a.m.

      After the killing, Meza withdrew the remaining funds from the bank account

he shared with Merendino and sent a copy of the handwritten will (naming Meza as

the beneficiary of a $1.3 million estate) to a lawyer in Texas to be probated. Meza

googled news articles about the killing and reached out to an acquaintance to help

back up a false alibi he had devised. Over the following weeks, Meza also began to

express regret to Langston in a number of text messages. In one which he sent on

May 30, he told Langston: “Ever since I did what I did, I’m not the same. And you

have no idea how hard it is to try to pretend everything is fine. To pretend that I’m

a normal person and have a normal life.” Perhaps most significantly, Meza left a

voicemail on Langston’s cellphone, the functional equivalent of a confession to the

murder, in which he told her:

      I honestly feel like shit with myself when I, ever since I did that, I hated
      myself more every day, every day. And I need to speak to someone, I
                                           3
      really do. I need help. Because I don’t know how to cope. I really don’t
      know how to get past this and move on. Every day of my life I wake up
      feeling guilty, I wake up hating myself for doing that. I had to, I had no
      choice, well, I had a choice, but I did it because I wanted to, for my
      family. But the price, uh, the price is high. More than I thought.

(emphasis added).

      Meza does not seriously contest the substantial, independent, and credible

evidence of guilt. Instead, he focuses on the effect the post-arrest statement may

have had on whether Meza had the intent to kill Merendino when Meza crossed the

border from the United States to Mexico. This argument is plainly without merit.

The very facts that establish that Meza murdered Merendino compel the conclusion

that he decided to kill Merendino before crossing back to Mexico.

      Meza also argues that the trial prosecutor relied extensively on Meza’s post-

arrest statement to show such premeditation. At no point during the prosecutor’s

summation, however, does he address the mens rea element of the offense, except in

responding to the defense’s theory of the case (based on Meza’s post-arrest

statement) that, when he crossed the border, he intended only to steal Merendino’s

stereo equipment. The prosecutor pointed out that this theory did not make any sense

because for over the preceding two years, “Merendino gave the defendant everything

he wanted and more” and “this story about needing to steal at two o’clock in the

morning . . . doesn’t add up in light of all of the evidence.” Indeed, to the extent that

the prosecutor referenced the defendant’s post-arrest exculpatory statement, it was

                                           4
for the purposes of impeaching it by demonstrating its inconsistency with the other

evidence in the case and to show that the defendant was a liar.

      While it is true that the jury requested the clips and transcript of Meza’s

statement during its deliberations, this may have simply reflected the fact that the

post-arrest statement was the only evidence that provided the basis for what passed

for a defense theory. Defense counsel not only relied on the post-arrest statement in

his summation, he played excerpts from it to undercut the showing of mens rea when

Meza crossed the border. I have already alluded to the part of his statement relied

upon by Meza’s counsel that he crossed the border with the intent to steal

Merendino’s stereo equipment. At a later point in his summation, Meza’s counsel

actually played audio clips of the detective’s interrogation to the jury in an effort to

show that the detective and the FBI agent who accompanied him “didn’t believe that

David Meza intended to kill Jake Merendino at the time he crossed from the United

States into Mexico. They didn’t believe that. They believed that it was something

that went wrong at the meeting. And if you agree with them, that’s no conviction on

Count 1.” The jury may very well have been interested in going over this again. In

any event, Meza’s assumptions on appeal about the jury’s requests for evidence or

the length of its deliberations are at best a matter of speculation, insufficient to

overcome evidence so overwhelming that Meza’s lawyer began his summation by

saying: “We will agree he had motive. He had opportunity.”

                                           5
      In sum, even if the Miranda warnings were somehow flawed, the admission

of the post-arrest statement was harmless beyond a reasonable doubt.




                                        6