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United States Court of Appeals,Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Jorge Enrique LOPEZ, Defendant-Appellant.

No. 05-50433.

Decided: November 30, 2006

Before: GRABER, WARDLAW, and RAWLINSON, Circuit Judges. Chase Scolnick, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant. Timothy F. Salel, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

In this appeal, we must decide whether the government's impermissible references to Appellant Jorge Enrique Lopez's post-Miranda silence mandate reversal of his conviction.   Because we conclude that any error was harmless beyond a reasonable doubt and, because none of Lopez's other assertions of error is meritorious, we affirm the conviction and sentence.


On September 17, 2004, Lopez entered the United States and was arrested by a United States Border Patrol Senior Patrol Agent and transported to a Border Patrol Station, where he was processed.   Subsequently, Lopez was indicted for being a deported alien found in the United States in violation of 8 U.S.C. § 1326.

At trial, Lopez took the stand and asserted a duress defense.   Lopez testified that he entered the United States, hoping to get arrested and avoid being harmed by a drug dealer.   During cross-examination, Lopez was questioned about whether he related the harm that he faced to any of the various people with whom he came into contact before he was transported to the Border Patrol Station.   Lopez admitted that he did not tell anyone about the threats.   The prosecutor also questioned Lopez about what he told the agents at the Border Patrol Station, where Lopez was processed and given his constitutionally mandated Miranda warning by Agent Michael Harrington (Harrington).   The relevant portion of the line of questioning began as follows:

Q. You never told any of the border patrol agents about any threats that occurred to you in Mexico, did you?

A. No, sir.

Q. You never told any of the border patrol agents who were there about any guys with knives who were chasing you, did you?

A. No, sir.

Q. You didn't tell any of them about anything about being scared, running for your life into the United States, did you?

A. No, sir.

Q. You didn't tell [Harrington] about,[sic] “I am actually scared because I was running from a guy who tried to kill me.”   You never told him that, did you?

A. No, sir.

(Emphasis added).

Lopez objected to this series of questions.   The district court overruled the objection on the basis that the questions were in reference to Lopez's pre-Miranda processing.

The prosecutor began his closing argument by noting that while Lopez was at the port of entry, he failed to “indicate to anyone whatsoever that he feared for his life” and reiterated that “there was no person that [Lopez] went to and explained the circumstances.”   During rebuttal, the prosecutor stated that “[Lopez] was hanging out near to [the] port of entry;  [sic] did not tell any of the agents, any of the immigration officers, any of the customs officials, anybody, that he had been threatened whatsoever.”

Lopez was convicted and sentenced to thirty months' imprisonment.


A. Fifth Amendment

 According to Lopez, the Government violated his Fifth Amendment right to remain silent by impermissibly commenting on his post-arrest silence.   Lopez does not challenge all of the prosecutor's comments regarding his silence, as he rightfully concedes “that the only appropriate context to question or comment on Mr. Lopez's failure to explain his duress was pre-arrest.”  United States v. Beckman, 298 F.3d 788, 795 (9th Cir.2002).  “We review de novo whether references to a defendant's silence violate his Fifth Amendment privilege against self-incrimination.”  United States v. Bushyhead, 270 F.3d 905, 911 (9th Cir.2001).  “If there was an improper comment on a defendant's silence at trial, violating the Fifth Amendment privilege against self-incrimination, we apply harmless error review.”  Id.

i. Doyle Error

 The Fifth Amendment right to remain silent contains an implicit assurance “that silence will carry no penalty.”  Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).  “[I]t would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.”  Id. (footnote reference omitted).   However, “[t]he Supreme Court has subsequently held in Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), that there is no Doyle violation if the district court promptly sustains a timely objection to a question concerning post-arrest silence, instructs the jury to disregard the question, and gives a curative jury instruction.”  United States v. Foster, 985 F.2d 466, 468 (9th Cir.1993), as amended, 995 F.2d 882 (9th Cir.1993) and 17 F.3d 1256 (9th Cir.1994).

 The prosecutor's cross-examination technique consisted of questioning Lopez chronologically about the various people with whom he interacted at the border.   However, the inquiries regarding what Lopez failed to tell Harrington violated Doyle, because Lopez's contact with Harrington encompassed both pre-Miranda and post-Miranda periods.   By drawing attention to the fact that Lopez “never” mentioned the alleged threats to Harrington, the prosecutor implicated Lopez's silence both pre-Miranda and post-Miranda.  “Even if counsel for the government intended his comments to refer only to post-arrest/pre-Miranda silence, the actual language used contains no such limitation and it is highly doubtful that the jury understood any such limitation.”  United States v. Baker, 999 F.2d 412, 415 (9th Cir.1993).

Similarly, although for the most part the prosecutor permissibly referenced Lopez's pre-Miranda silence during closing argument, he also made overly broad references that impermissibly encompassed Lopez's failure to mention the threats to anyone after the invocation of his right to remain silent.1  “[A] prosecution closing argument that broadly condemn[s] appellant ['s] silence:  pre-Miranda and post-Miranda violate[s] due process.”  United States v. Whitehead, 200 F.3d 634, 639 (9th Cir.2000) (citation and internal quotation marks omitted).

In sum, Doyle error occurred when the prosecutor asked Lopez whether he ever told Harrington about the threats he received, and when he argued during closing argument that “[t]here was no duress related to any government agent.”

ii. Harmless Error

 The burden of proving a constitutional error harmless beyond a reasonable doubt rests upon the government.  United States v. Williams, 435 F.3d 1148, 1162 (9th Cir.2006).  “When deciding whether a prosecutor's reference to a defendant's post-arrest silence was prejudicial, this court will consider the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant's guilt.”  Bushyhead, 270 F.3d at 913 (citation omitted).

The only witness who testified about Lopez's post-Miranda silence was Lopez himself, on cross-examination.   However, the “quantitative extent” of Lopez's responses regarding his post-Miranda silence “was not great in relation to the remainder of his testimony,” which focused on Lopez's failure to tell the various people he encountered pre-Miranda about the threats he received.   United States v. Velarde-Gomez, 269 F.3d 1023, 1035 (9th Cir.2001) (en banc).   Further, “the qualitative extent” of Lopez's testimony implicating his post-Miranda silence was limited;  the prosecutor's “manner of questioning” focused primarily on Lopez's pre-Miranda silence.  Id. As a result, Lopez's case can be distinguished from other cases where the defendant's post-Miranda silence formed the basis of the government's suggested inference of guilt.   Cf. Velarde-Gomez, 269 F.3d at 1035, and United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991).   By far, the most powerful evidence of Lopez's actions was taken from his pre-Miranda silence.   If Lopez was in fact running for his life, it would be reasonable to expect that he would disclose that fact in the heat of the moment when he first encountered border agents.   That he did not do so supports a permissible inference, based on pre-Miranda silence, that he did not disclose that fact because it was not the true state of affairs.   See Beckman, 298 F.3d at 795.   Accordingly, the same inference would follow if the post-Miranda questions were eliminated from consideration.   Adding these inferences to the stipulated evidence of guilt, i.e., Lopez's presence in the United States after deportation, and his lack of citizenship, harmless error is established beyond a reasonable doubt.   See United States v. Pino-Noriega, 189 F.3d 1089, 1099 (9th Cir.1999) (finding error harmless where there was “overwhelming other evidence of [defendant-appellant's] guilt”).

Consideration of “whether an inference of guilt from silence was stressed to the jury” is also appropriate.  Bushyhead, 270 F.3d at 913.   An inference of guilt is stressed to the jury where the government “draw[s] a direct inference of guilt [from defendant's silence] during its closing argument.”   Velarde-Gomez, 269 F.3d at 1035.   Although the prosecutor's broad rebuttal argument encompassed Lopez's post-Miranda silence, he did not “draw[ ] a direct inference of guilt ․ [or] use[ ] the testimony about [Lopez's][post-Miranda] silence as [his] principal means of meeting [the government's] burden.”  Id. Rather, the reference was made contemporaneously with references to Lopez's pre-Miranda silence and Lopez's statement during his testimony that he wanted to be arrested so he would not have to spend another night on the streets.   This record does not support a conclusion that post-Miranda silence was “stressed.”   Cf. Whitehead, 200 F.3d at 638-39 (concluding that prosecutor stressed the defendant's silence where all references were to the period after defendant invoked his right to remain silent).

As discussed, the evidence that Lopez faced no duress was powerfully incriminating.2  Even though the prosecutor impermissibly elicited testimony and improperly referenced Lopez's post-Miranda silence during closing argument, it was permissible for the jury to consider Lopez's pre-arrest, pre-Miranda silence as substantive evidence of guilt.   See Beckman, 298 F.3d at 795.   Therefore, the jury could permissibly consider the powerfully incriminating admission that Lopez mentioned nothing about the purported threats to:  (1) the border agents whom he encountered at the Calexico port of entry, (2) the security officer, or (3) the arresting border agents.  (The jury could also consider Lopez's powerfully incriminating, pre-Miranda statement, not that he was threatened, but that he “didn't want to spend another night in the streets.”)

 We also examine the length of jury deliberation when assessing harmlessness.  “Longer jury deliberations weigh against a finding of harmless error because lengthy deliberations suggest a difficult case.”  Velarde-Gomez, 269 F.3d at 1036 (citations, alterations and internal quotation marks omitted).   In this case, the jury deliberated for approximately two and one-half hours, suggesting that any error in allowing testimony or commentary on Lopez's post-arrest silence was harmless.   Cf. id. (noting that the jury deliberated for four days, thereby supporting an inference that the impermissible evidence affected jury deliberations).

iii. Due Process

 No Doyle error occurs “if the district court promptly sustains a timely objection to a question concerning post-arrest silence, instructs the jury to disregard the question, and gives a curative jury instruction.”  Foster, 985 F.2d at 468.   The record reveals two such instances during the trial of this case.3  The trial court acted promptly to prevent “the inquiry that Doyle forbids” by “explicitly sustain[ing] an objection to the ․ question[s] that touched upon [Lopez's] post-arrest silence [and] ․ specifically advis[ing] the jury that it should disregard any questions to which an objection was sustained.”   Greer, 483 U.S. at 764, 107 S.Ct. 3102 (footnote reference omitted).   Nevertheless, even in the absence of a Doyle violation, the prosecutor's “attempt[s] to violate the rule of Doyle by asking ․ improper question[s] in the presence of the jury” constitute prosecutorial misconduct, and that misconduct warrants reversal where it “may [have] so infec[ted] the trial with unfairness as to make the resulting conviction a denial of due process.”   Id. at 765, 107 S.Ct. 3102 (citation omitted).   Because the district court sustained the Doyle objections, struck the one answer, admonished the jury to disregard that answer, and instructed the jury that “questions ․ by lawyers are not evidence” and that “testimony that has been excluded or stricken or that you have been instructed to disregard is not evidence and must not be considered[,]” the prosecutor's improper questions did not violate Lopez's due process rights.   See id. at 766, 107 S.Ct. 3102 (holding that there was no due process violation occasioned by the prosecutor's attempt to violate Doyle on closely analogous facts).

B. Jury Instruction-Burden of Proof

 Lopez challenges the district court's jury instruction that Lopez was “presumed innocent unless and until proved guilty beyond a reasonable doubt,” claiming that the instruction unconstitutionally abandoned the presumption of innocence.  “We review de novo a claim that a jury instruction violates due process,” United States v. Tirouda, 394 F.3d 683, 687 n. 1 (9th Cir.2005), cert. denied, 547 U.S. 1005, 126 S.Ct. 1462, 164 L.Ed.2d 250 (2006), (citation omitted), by “creating an unconstitutional presumption or inference.”  Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir.1999) (citation omitted).

 “Although the Constitution does not require jury instructions to contain any specific language, the instructions must convey both that a defendant is presumed innocent until proven guilty and that he may only be convicted upon a showing of proof beyond a reasonable doubt.”   Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir.2004) (citation omitted). “Any jury instruction that reduces the level of proof necessary for the Government to carry its burden is plainly inconsistent with the constitutionally rooted presumption of innocence.”  Id. (alterations, citation and internal quotation marks omitted).  “Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole.”   Id. at 821 (citation omitted).

Before trial began, the judge instructed the jury to presume Lopez “innocent unless and until proved guilty beyond a reasonable doubt.”   At the close of trial, the judge similarly instructed the jury that Lopez “is presumed to be innocent ․ [and][t]he government has the burden of proving every element of the charge beyond a reasonable doubt.”   He later reiterated that “the government must prove each of the ․ elements [of 8 U.S.C. § 1326(a) ] beyond a reasonable doubt.”   We have expressly held that use of the phrase “unless and until” adequately informs the jury of the presumption of innocence.   See United States v. Brady, 579 F.2d 1121, 1131 (9th Cir.1978) (upholding instructions which concluded with the language, “unless and until outweighed by evidence in the case to the contrary, the law presumes that a person is innocent of crime or wrong”);  see also Juan H. v. Allen, 408 F.3d 1262, 1279 (9th Cir.2005), cert. denied, 546 U.S. 1137, 126 S.Ct. 1142, 163 L.Ed.2d 1000 (2006), and 546 U.S. 1137, 126 S.Ct. 1145, 163 L.Ed.2d 1000 (2006).   Moreover, when the instructions are considered as a whole, it is not reasonably likely that the jury interpreted the “unless and until” phrase as shifting the burden of proof to Lopez.   See Bruce v. Terhune, 376 F.3d 950, 955-56 (9th Cir.2004) (per curiam) (noting that there is no error where “the instructions as a whole made clear to the jury that the prosecution bore the burden of proving each element of the crime beyond a reasonable doubt”) (citation omitted).

C. Sentence

For the first time on appeal, Lopez challenges his sentence.   Lopez asserts that the district court erred by imposing a sentence in excess of the two-year maximum set forth in 8 U.S.C. § 1326(a).   Lopez contends that the enhancement pursuant to 8 U.S.C. § 1326(b) was impermissibly predicated on a prior felony conviction that was not proved to a jury or admitted by Lopez.   Lopez urges us to conclude that the United States Supreme Court's holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), has been narrowed by subsequent rulings, calling into doubt the enhancement in this case.

 A claim raised for the first time on appeal that a sentence violates a defendant-appellant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is reviewed for plain error.  United States v. Castillo-Rivera, 244 F.3d 1020, 1024 (9th Cir.2001).  “Under the plain error standard, [Lopez] must establish an error, that was plain, and that affected his substantial rights.”  United States v. Buckland, 289 F.3d 558, 563 (9th Cir.2002) (en banc).

 Lopez's argument is foreclosed by our precedent.   See United States v. Weiland, 420 F.3d 1062, 1079 n. 16 (9th Cir.2005) (noting that this Court continues to be bound by the Supreme Court's holding in Almendarez-Torres ), cert. denied, 547 U.S. 1114, 126 S.Ct. 1911, 164 L.Ed.2d 667 (2006);  see also, United States v. Delaney, 427 F.3d 1224, 1226 (9th Cir.2005) (stating that “[t]he Supreme Court has made clear that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt or admitted by the defendant to satisfy the Sixth Amendment”).   Similarly, Lopez's argument that because 8 U.S.C. § 1326(b)(2) requires an alien's prior removal to have been subsequent to the prior conviction, Apprendi requires that the temporal sequence of conviction and removal-as distinct from the fact of conviction itself-be proved to a jury beyond a reasonable doubt, is foreclosed.   See Castillo-Rivera, 244 F.3d at 1025 (explaining that Apprendi carved out a recidivism exception under which neither the prior conviction nor the fact that the removal was subsequent to the prior conviction must be proved to a jury).


The prosecutor impermissibly commented on Lopez's right to remain silent in violation of the rule articulated in Doyle.

However, the Doyle error was harmless beyond a reasonable doubt because of the limited reference to Lopez's post-Miranda silence and the overwhelming evidence of Lopez's guilt.   Although the prosecutor's questions were impermissible, Lopez's due process rights were not violated because the questions were immediately objected to, and the district court gave appropriate limiting instructions.   It is not reasonably likely that the jury interpreted the district court's instruction that Lopez was “presumed innocent unless and until proved guilty” as shifting the burden of proof to Lopez.   Finally, the jury was not required to find the fact of a prior conviction.



1.   We reject the government's argument that its comments constituted a fair response to testimony that Lopez's counsel invited.   The questions posed on direct examination addressed only pre-Miranda exchanges, while the government's cross-examination strayed into post-Miranda exchanges.   Where, as here, the government's comments are far broader than a mere response to defense questioning, the error in commenting on post-Miranda silence is not invited.   See Baker, 999 F.2d at 416 n. 5.

2.   The evidence of Lopez's guilt on the 8 U.S.C. § 1326 charge was overwhelming.   Lopez stipulated that he was an alien who had previously been deported and who did not have consent to re-enter the United States.   See United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir.2003) (noting that “[a] deported alien violates 8 U.S.C. § 1326(a)(2) if he ‘enters, attempts to enter, or is at any time found in’ the United States unless ‘the Attorney General has expressly consented to such alien's reapplying for admission.’ ”) (citation and alteration omitted).   See also United States v. Solorzano-Rivera, 368 F.3d 1073, 1080 (9th Cir.2004) (noting that jumping over a border fence in order to get away from harassers constituted voluntary entry);  United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1047 (9th Cir.1990) (finding harmless error beyond a reasonable doubt in view of overwhelming evidence of guilt under 8 U.S.C. § 1326).

3.   After being “admonish[ed] ․ not to go into any post-invocation of the statements,” the prosecutor asked Lopez, “[t]he first time you told any government agent that you feared for your safety because there was a man with a knife was yesterday, correct?”   The single question was followed by an objection that was sustained.   The court also struck the answer and admonished the jury to disregard the answer.   During re-cross-examination, the prosecutor asked Lopez “[y]ou told no one on September 17th that anyone had threatened you with a knife?”   The judge sua sponte excluded that question, which was never answered.

RAWLINSON, Circuit Judge:

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