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 2018-12

United States v. Nestor Vasquez ( 2018 )


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  •                                                                             FILED
NOT FOR PUBLICATION
DEC 17 2018
UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No.   17-50159
Plaintiff-Appellee,                D.C. No. 3:16-cr-01830-LAB-1
v.
MEMORANDUM*
NESTOR DAVID VASQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted November 16, 2018
Pasadena, California
Before: W. FLETCHER and PAEZ, Circuit Judges, and GLEASON,** District
Judge.
Nestor Vasquez appeals his conviction for illegal entry after deportation in
violation of
    8 U.S.C. § 1326
    . We have jurisdiction under
    28 U.S.C. § 1291
    . We
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
Vasquez argues that the district court’s security measures — placing a Deputy
U.S. Marshal within ten feet of him while he testified and having the marshal escort
him back from the witness stand following his testimony — violated his due process
rights. We review the district court’s courtroom security decisions for abuse of
discretion. United States v. Shryock,
    342 F.3d 948
    , 974 (9th Cir. 2003) (citing Wilson
v. McCarthy,
    770 F.2d 1482
    , 1485 (9th Cir. 1985)). To determine whether courtroom
security measures violate a defendant’s right to a fair trial, reviewing courts must
“look at the scene presented to jurors and determine whether what they saw was so
inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair
trial.” Holbrook v. Flynn,
    475 U.S. 560
    , 572 (1986). Even if the challenged security
measure is not inherently prejudicial, we must “consider[] whether the measures
actually prejudiced members of the jury.” Hayes v. Ayers,
    632 F.3d 500
    , 522 (9th Cir.
2011) (citing Holbrook,
    475 U.S. at 572
    ). Neither security measure employed here
was inherently prejudicial, and there was no evidence showing actual prejudice.1
Vasquez also argues that the prosecutor at his trial improperly commented on
his post-arrest and pre- and post-Miranda silence. “We review de novo whether
references to a defendant’s silence violate the Fifth Amendment privilege against
1
Although we affirm the district court’s order here, we do not foreclose the
possibility that similar courtroom security measures may well be prejudicial under
other circumstances.
2
self-incrimination.” United States v. Bushyhead,
    270 F.3d 905
    , 911 (9th Cir. 2001).
Prosecutors may not “impeach a defendant’s exculpatory story, told . . . at trial, by
cross-examining the defendant about his failure to have told the story after receiving
Miranda warnings at the time of his arrest.” Doyle v. Ohio,
    426 U.S. 610
    , 611 (1976).
But where a defendant makes a post-arrest statement “that ‘may arguably be
inconsistent with the trial story,’ he has raised a question of credibility” and the
government “may probe all post-arrest statements and the surrounding circumstances
under which they were made, including defendant’s failure to provide critical
details.’” United States v. Makhlouta,
    790 F.2d 1400
    , 1404 (9th Cir. 1986) (quoting
United States v. Ochoa-Sanchez,
    676 F.2d 1283
    , 1286 (9th Cir.), cert. denied,
    459 U.S. 911
     (1982)). Prosecutors are also permitted to use pre-arrest silence to impeach
a criminal defendant’s credibility without violating the defendant’s self-incrimination
or due process rights. Jenkins v. Anderson,
    447 U.S. 231
    , 239-40 (1980).
The prosecutor did not impermissibly comment on Vasquez’s silence at trial.
As permitted by Jenkins, the prosecutor used Vasquez’s pre-arrest, pre-Miranda
silence to impeach Vasquez’s credibility at trial. And the prosecutor’s comments on
Vasquez’s post-Miranda statement, pointing out its omission of details, permissibly
highlighted inconsistencies between Vasquez’s story at trial and his comments to
officers following his arrest and waiver of his Miranda rights.
3
AFFIRMED.
4