U.S. v. Padilla

• Decision Date: 06 May 2011
• Docket Number: No. 09–10451.,09–10451.
• Citation: 639 F.3d 892
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Francisco Archivaldo PADILLA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

639 F.3d 892

2011 Daily Journal D.A.R. 6531

UNITED STATES of America, Plaintiff–Appellee,

v.Francisco Archivaldo PADILLA, Defendant–Appellant.

No. 09–10451.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 2010.Filed Feb. 9, 2011.Amended May 6, 2011.

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.”

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.

Before opening statements, the district court issued a number of preliminary jury instructions to the sworn jury, including the following: “The defendant has no burden to prove his innocence or present any evidence or testify. Since the defendant has the right to remain silent, the law prohibits you in arriving at your verdict from considering that the defendant may not have testified.” The court went on to state: “The government must prove the defendant's guilt beyond a reasonable doubt.”

At the conclusion of the evidence, the judge informed counsel that the court would give the same jury instructions as those issued in Padilla's first trial. The court was quite specific in its discussion of the instructions:

THE COURT: Let the record show we are in chambers with counsel for the purpose of making a record.

This morning, prior to starting the trial, the court and counsel informally reviewed the requested jury instructions. And the result of that informal discussion was that the court would give the same instructions that were given at the original trial, with the substitution by the government of its conspiracy instructions and the addition of a flight instruction, requested by the government, as well as the deletion of the willfully—definition of willfully, except as it applies to the general instruction of conspiracy.

Is that a fair representation of our discussion and is that agreeable to the government?

[PROSECUTION]: That's fine with the government.

[DEFENSE]: It is, Your Honor.

The court went on to discuss an instruction withdrawn by the defense and then, as to “[t]he remaining instructions submitted by the defendant,” stated that “the court felt [they] were either covered or—well, was there any other instructions that you wished to—”? Defense counsel quickly informed the court that he did not wish to request any further instructions.

In the court's final instructions to the jury, the judge reminded the jury that “[t]he defendant is presumed to be innocent, he does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt.” Asked at the conclusion of the jury instructions whether there were any objections, Padilla's counsel did not object to the instructions given to the jury.

II. Analysis

When a defendant properly requests a Carter instruction, the court must instruct the jury that it may not make any inferences based on the defendant's choice not to testify. Carter, 450 U.S. at 305, 101 S.Ct. 1112. It is undisputed that Padilla's counsel requested a “no-adverse-inference” instruction before the trial began. Although the court did not give the exact instruction requested nor reiterate the instruction at the conclusion of the evidence, it did give a preliminary instruction that included the gist of the Carter admonition. This appeal presents two questions: whether the preliminary instruction was sufficient under Carter and, if so, whether Padilla was entitled to a second Carter instruction as part of the final set of instructions. Because Padilla's counsel failed to object to the jury instructions at trial, we review for plain error. See Fed.R.Crim.P. 52(b); see also United States v. Soto, 519 F.3d 927, 930 (9th Cir.2008).¹

A. The Sufficiency of the Preliminary Jury Instructions

The Supreme Court instructs that a court must honor a defendant's proper request for a Carter instruction in order “to minimize the danger that the jury will give evidentiary weight to a defendant's failure to testify.” Carter, 450 U.S. at 305, 101 S.Ct. 1112. However, “[a] defendant is not entitled to any particular form of instruction,” and the district court may in its discretion issue jury instructions in the words of its choosing. United States v. Lopez–Alvarez, 970 F.2d 583, 597(9th Cir.1992).

We have considered the form of the Carter instruction on two prior occasions. In United States v. Castaneda, the following instruction was deemed sufficient under Carter : “the defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence.” 94 F.3d 592, 596 (9th Cir.1996) (internal quotations omitted). We reasoned that “the instruction sufficiently covered the substance of [the defendant's] proposed instruction: the defendant's failure to testify does not lessen the government's burden to prove its case.” Id. The opinion goes on to state that the error was harmless because the jury was told during voir dire that “an accused cannot be compelled to testify, and if he exercises that right, you cannot allow that to affect your determination of the issues.” Id. (internal quotations omitted).

More than ten years after Castaneda, in Soto we observed that “ Castaneda is not a model of clarity” as to which ground serves as the basis of the opinion. 519 F.3d at 931; see also People v. Evans, 62 Cal.App.4th 186, 72 Cal.Rptr.2d 543, 546 (1998) (“[T]he [ Castaneda ] opinion is not entirely clear as to the grounds on which the court rested its decision.”). Although the defendant in Soto asked for a Carter instruction—albeit orally at the close of trial and long after the submission deadline—we held that any error in failing to...