639 F.3d 892 (9th Cir. 2011), 09-10451, United States v. Padilla

Docket Nº:09-10451.
Citation:639 F.3d 892
Opinion Judge:McKEOWN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Francisco Archivaldo PADILLA, Defendant-Appellant.
Attorney:Dennis K. Burke, Randall M. Howe, and Joan G. Ruffennach, United States Attorney's Office, Phoenix, AZ, for the plaintiff-appellee. Thomas M. Hoidal, The Law Office of Thomas M. Hoidal, P.L.C., Phoenix, AZ, for the defendant-appellant.
Judge Panel:Before: PROCTER HUG, JR., D.W. NELSON, and M. MARGARET McKEOWN, Circuit Judges.
Case Date:February 09, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 892

639 F.3d 892 (9th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Francisco Archivaldo PADILLA, Defendant-Appellant.

No. 09-10451.

United States Court of Appeals, Ninth Circuit.

February 9, 2011

Argued and Submitted Dec. 8, 2010.

Amended May 6, 2011.

Page 893

Dennis K. Burke, Randall M. Howe, and Joan G. Ruffennach, United States Attorney's Office, Phoenix, AZ, for the plaintiff-appellee.

Thomas M. Hoidal, The Law Office of Thomas M. Hoidal, P.L.C., Phoenix, AZ, for the defendant-appellant.

Appeal from the United States District Court for the District of Arizona, Paul G. Rosenblatt, District Judge, Presiding. D.C. No. 2:86-cr-00272-PGR-1.

Before: PROCTER HUG, JR., D.W. NELSON, and M. MARGARET McKEOWN, Circuit Judges.

ORDER

The Opinion filed February 9, 2011, slip op. 2455, and appearing at 633 F.3d 1177, is amended as follows:

1. At slip op. 2461, at the end of the first full paragraph under the subheading ANALYSIS, insert the following as a footnote: " If the defendant requests a Carter instruction and the district court declines to give the instruction, our review is typically de novo. See United States v. Lopez, 477 F.3d 1110, 1113 (9th Cir.2007). The circumstances here are somewhat different because the court did give an adequate instruction at the outset of the trial and now Padilla objects to the court not giving a second Carter instruction, even though he did not object to the instructions actually given at the conclusion of the trial. Even if we were to overlook this sequence of events and review the issue de novo, we would reach the same result."

Page 894

With this amendment, the panel has voted to deny the petition for panel rehearing. Judge McKeown votes to deny the petition for rehearing en banc and Judges Hug and Nelson so recommend.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.

No future petitions for rehearing or rehearing en banc will be accepted.

McKEOWN, Circuit Judge:

OPINION

The Supreme Court has articulated a hierarchy of protections to guarantee that the Fifth Amendment right to remain silent has practical meaning in a criminal trial. The principle that a defendant has the right to remain silent " unless he chooses to speak in the unfettered exercise of his own will" is well known. Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). In a related vein, the exercise of the right to remain silent may not be considered as evidence of guilt. Griffin v. California, 380 U.S. 609, 613-15, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). By extension, in Carter v. Kentucky, the Court held that the trial judge has a constitutional obligation to give a " no-adverse-inference" instruction if properly requested. 450 U.S. 288, 305, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). We consider here whether the district court's preliminary instruction that the jury not consider the defendant's choice not to testify satisfies the court's constitutional obligation under Carter. We hold that it does under the circumstances of this case and affirm the conviction.

I. BACKGROUND

Francisco A. Padilla timely appeals the district court's judgment finding him guilty of Conspiracy to Import Marijuana (21 U.S.C. § 963); Importation of Marijuana (21 U.S.C. §§ 952(a) and 960); Conspiracy to Possess with Intent to Distribute Marijuana (21 U.S.C. §§ 846 and 841(b)(1)(B)); and Possession with Intent to Distribute Marijuana (21 U.S.C. § 841(b)(1)(B)). Padilla's first trial ended in a mistrial after the jury hung. At the second trial, the jury convicted Padilla.

On appeal, Padilla challenges the admission of testimony by several witnesses and claims prosecutorial error during closing argument. We address these issues in an unpublished memorandum disposition filed concurrently with this opinion and affirm the district court on each claim. This opinion addresses Padilla's contention that the district court's failure to give a Carter admonition as part of the closing instructions requires reversal.

At the outset of the second trial, Padilla filed proposed jury instructions. Included among those instructions was an instruction entitled " Effect of Failure of Accused to Testify," essentially a Carter instruction:

The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn, from the failure of a defendant to testify.

As stated before, the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

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