UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SANTIAGO CONTRERAS OROZCO, Defendant-Appellant.
No. 13-30199
D.C. No. 2:11-cr-00150-FVS-1
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed August 13, 2014
Before: Alfred T. Goodwin, M. Margaret McKeown, and Paul J. Watford, Circuit Judges. Opinion by Judge Goodwin
FOR PUBLICATION. Argued and Submitted June 5, 2014—Seattle, Washington
Criminal Law
Affirming convictions for manufacturing marijuana plants and carrying a firearm during a drug trafficking crime, the panel held that the district court did not abuse its discretion in denying the defendant‘s motion for a mistrial on the basis of a government witness‘s testimony, nor in refusing to reopen the evidence to allow the defendant to testify.
The panel held that the district court did not abuse its discretion in denying a mistrial and a new trial on the basis of testimony that the defendant was advised of “his right to a consulate.” The panel concluded that this single reference did not convey anything about the defendant‘s legal status in the United States because all foreign nationals are entitled to consular notification.
The panel held that the district court did not abuse its discretion in refusing to reopen the evidence to allow the defendant to testify. Joining other circuits, the panel held that a defendant must generally invoke the right to testify before the close of evidence. The panel held that the following factors are considered to determine whether a district court abused its discretion in denying a motion to reopen to allow a defendant to testify: (1) the timeliness of the defendant‘s motion, (2) the character of the proposed testimony, (3) the disruptive effect of granting the motion, and (4) whether the
COUNSEL
Dan B. Johnson (argued), Spokane, Washington, for Defendant-Appellant.
Earl A. Hicks (argued), Assistant United States Attorney, Michael C. Ormsby, United States Attorney, Spokane, Washington, for Plaintiff-Appellee.
OPINION
GOODWIN, Circuit Judge:
Santiago Contreras Orozco was convicted of manufacturing 1,000 or more marijuana plants, in violation of
I
In late 2010, an elk hunter reported to the United States Forest Service a potential marijuana grow in the Wenaha Tucannon Wilderness in Eastern Washington. Delayed by weather conditions, Forest Service agents investigated the area in July 2011 and arrested Orozco, who was armed with a loaded .380 caliber weapon. A search of the surrounding area revealed marijuana plants and evidence linking Orozco to the grow operation, including, two .380 caliber ammunition clips, and a cell phone containing pictures of marijuana plants and a phone call history showing that the cell phone had been used to call members of Orozco‘s family.
Orozco was charged, and the case proceeded to trial. A number of government witnesses testified, including Joseph Helm, Chief Deputy of the Columbia County Sheriff‘s Office, who testified about transferring Orozco from the marijuana grow to the Columbia County Jail. Helm testified that he spoke fluent Spanish, that he asked Orozco whether he spoke English, and that after being informed that Orozco spoke only Spanish, he read Orozco his Miranda rights in Spanish. After a series of questions and answers describing the constitutional guarantees provided by Miranda, Helm testified as follows:
I, with the assistance of Fish and Wildlife Officer Ryan John, we took [Orozco] out of the restraints that were currently on him, pat searched him, put him in the restraints from
. . . my department . . . for transport and I also advised him of a right to a consulate.
After a brief sidebar, Orozco‘s trial counsel moved for a mistrial, arguing that the deputy‘s testimony amounted to a “disclosure that [Orozco] has illegal status.” The district court disagreed. Denying the motion, the court reasoned:
I‘m mindful that [consular notification] is something that is done for people who speak Spanish and in some occasions for, there‘s an indication there‘s someone unlawfully in the country. But just using the words, “also advised him of a right to a consulate” doesn‘t mean much. It doesn‘t carry much in the way of information to, frankly, the average juror and average person. . . .
* * *
It‘s a very small comment made in the testimony. I‘m not persuaded that it creates prejudice that would require a mistrial. I think that the defendant will continue to have a fair trial.
Although neither party requested a curative instruction, the court concluded that “the best remedy is no comment,” since instructing the jury would be prejudicial to Orozco by bringing the jurors’ attention to something they probably did not understand.
The trial continued, and the government concluded its case-in-chief. Defense counsel requested a short recess to
The jury found Orozco guilty on both counts. Orozco filed a timely motion for a new trial based, in part, on the allegation that Helm‘s consulate reference deprived him of a fair trial. The court denied the motion. After finding that Orozco was not competent for sentencing under
II
Orozco argues that the district court erred by denying his motion for a mistrial and his motion for a new trial under
Contrary to Orozco‘s contention, the deputy‘s single reference to a consulate did not convey anything about Orozco‘s legal status. It is unlikely that any juror divined meaning from the brief reference to the right to a consulate. In any event, because all foreign nationals, regardless of their legal status, are entitled to consular notification, the testimony conveyed only that Orozco was a citizen of another country. See
In the summary of argument, Orozco “contends that he did not receive a fair trial due to the introduction into evidence of the issue of his illegal status in the United States, and the lack of a curative instruction.” He does not further discuss the failure to give a curative instruction, nor did he request such an instruction at trial. Although we have no obligation to address the failure to give a sua sponte curative
We likewise reject the argument that Helm‘s testimony regarding the right to a consulate was undisclosed 404(b) evidence because the testimony did not reveal anything, let alone the defendant‘s status as illegally present in the United States. The testimony was therefore not “[e]vidence of a crime, wrong, or other act.” See
III
Orozco next argues that his constitutional rights were violated when the district court refused to reopen the evidence to allow him to testify. We review de novo a defendant‘s claim that he was deprived of his constitutional right to testify, however, we review for an abuse of discretion a district court‘s decision not to reopen evidence to permit a defendant to testify. See United States v. Pino-Noriega, 189 F.3d 1089, 1094 (9th Cir. 1999). At oral argument, counsel for Orozco urged us to adopt a broad categorical rule that would permit a defendant to invoke his or her constitutional right to testify at any time before the case is turned over to the jury for deliberations. We decline the invitation. Instead, we join our sister circuits in holding that
“The right of an accused to testify in his own defense is well established, and is a ‘constitutional right of fundamental dimension.‘” Pino-Noriega, 189 F.3d at 1094 (quoting United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)). The right to testify, however, does not include an option to listen to the prosecution‘s final argument and then engage in a rebuttal argument. See Rock v. Arkansas, 483 U.S. 44, 55 (1987) (noting that the right to testify must, at times, “bow to accommodate other legitimate interests in the criminal trial process“) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)); Pino-Noriega, 189 F.3d at 1095-96 (holding that a defendant waives his right by failing “to assert his right to testify before he discovers that the jury has returned a guilty verdict“); Neuman v. Rivers, 125 F.3d 315, 318-19 (6th Cir. 1997) (holding that a defendant was not deprived of his right to testify, but instead waived the right by waiting to make the request to testify until just before jury instructions). Indeed, procedural and evidentiary rules controlling the presentation of evidence “do not offend the defendant‘s right to testify” unless such rules are “arbitrary or disproportionate to the purposes they are designed to serve.” See Rock,
Applying the Walker factors here, the district court did not abuse its discretion by refusing to reopen the evidence to allow Orozco‘s testimony. First, Orozco‘s motion to reopen the evidence after the government‘s closing argument was clearly untimely, although not as untimely as the request made in Pino-Noriega, 189 F.3d at 1095 (after the jury had reached but not yet delivered its verdict). Second, as to the character of his proposed testimony, the record is silent. While a defendant‘s first-hand account of the events leading to his accusation has some inherent value, see Peterson, 233 F.3d at 107, Orozco did not explain what he hoped to say or how he planned to bolster his defense. Third, granting Orozco‘s untimely request to testify would likely have caused at least some disruption to the trial process, but we have no way of evaluating the extent of that disruption because Orozco made no record concerning the character of his proposed testimony. Finally, and perhaps most significantly, Orozco failed to offer any excuse for his late request to testify, let alone a reasonable one. As we have previously held, a district court “may refuse to permit an accused to reopen his case, and present additional evidence, where there is insufficient reason for the accused‘s failure to offer evidence at the proper time.” Kelm, 827 F.2d at 1323 (citing United States v. Ramirez, 608 F.2d 1261, 1267 (9th Cir. 1979)).
A defendant seeking to testify after the close of proof is best situated to make a record explaining the reasons
AFFIRMED.