United States Ninth Circuit

A conviction for drug related offenses is affirmed in part and reversed in part where: 1) although the district court violated defendant's Fifth Amendment rights by admitting testimony commenting on his silence, the error was harmless beyond a reasonable doubt; but 2) it was an abuse of discretion to not provide a lesser included instruction to the jury on simple possession; and 3) the error was not harmless and required vacatur of a conviction for possession of methamphetamine with intent to distribute.

Appellate Information

• Argued 10/17/2006
• Decided 02/14/2007
• Published 02/14/2007

Judges

• GOULD, Circuit Judge:, Before: PREGERSON, GOULD, and CLIFTON, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• James Fife, Federal Defenders of San Diego, Inc., San Diego, CA, for appellant Marcos Alonzo Hernandez.


• For Appellees:
  
• Bruce C. Smith, Assistant United States Attorney, San Diego, CA, for appellee United States of America.