United States v. Soto , 519 F.3d 927 ( 2008 )

PER CURIAM; Concurrence by Judge GRABER; 7Concurrence by Judge GOULD.

ORDER AND OPINION

ORDER

The petition for panel rehearing is GRANTED. The memorandum disposition filed on November 28, 2007, is withdrawn and the Clerk is ordered to file the attached opinion in its place. New petitions for rehearing and petitions for rehearing en banc may be filed.

OPINION

PER CURIAM:

Defendant Jose Martin Soto appeals his conviction for possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a). He argues that the district court violated Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), and James v. Kentucky, 466 U.S. 341, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984), by failing to give his requested instruction that the jury make no adverse inference from his constitutionally protected choice not to testify. We hold that any error was harmless beyond a reasonable doubt. We also reject Defendant’s other challenge to the jury instructions. We therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

Police arrested Lenise Acevedo on drug charges. She agreed to help them arrest several of her suppliers, including Defendant. After a controlled sale of methamphetamine at Defendant’s house, police obtained and executed a search warrant. They arrested Defendant, who was asleep in bed, and searched his house. That search uncovered drugs hidden in the kitchen, in the bedroom where Defendant was sleeping, and in a nearby bedroom; two scales commonly used by drug distributors in a kitchen drawer; and $537 in cash.

Defendant was indicted on one count of distribution of methamphetamine, 21 U.S.C. § 841(a), and one count of possession of methamphetamine with intent to distribute, id. He pleaded not guilty. In addition to the results of the search of Defendant’s house, the primary evidence introduced by the government in the three-day jury trial was the testimony of Acevedo, who testified in exchange for a reduced sentence.

In a pretrial conference on August 12, 2006, the district court set a deadline of August 29 — one week before trial — for proposed jury instructions to be submitted in writing by both parties. Neither party objected to the deadline or to the requirement of written proposals. Only the government submitted proposed jury instructions in writing; Defendant did not submit any proposed jury instructions, either orally or in writing.

At the close of trial and immediately before the parties’ closing arguments, Defendant’s counsel orally requested an instruction that the jury should not “hold ... against him” the fact that Defendant had not testified. The court refused the instruction because no timely written request had been made.

After the parties gave their closing arguments, the court instructed the jury. The court charged the jury to consider the instructions “as a whole” and to presume Defendant’s innocence, explained that the burden of proof beyond a reasonable doubt rested with the government, and defined “reasonable doubt.” The instructions also included this statement: “Your sole interest is to seek the truth from the evidence in the case. You’ve been chosen and sworn as jurors in this case to try the issues of fact presented by the parties and determine the issue of guilt or innocence.” The post-trial instructions did not include a statement that the jury should draw no adverse inference from the Defendant’s failure to testify.¹

The jury convicted Defendant of possession, but acquitted him of distribution. The lower end of the Sentencing Guidelines range was 188 months, but the district court imposed a sentence of only 120 months — the statutory mandatory minimum. 21 U.S.C. § 841(b)(1)(A). Defendant timely appeals his conviction.

STANDARDS OF REVIEW

We review de novo whether the district court committed reversible error by refusing to instruct the jury that it should draw no adverse inference from a defendant’s failure to testify. United States v. Castaneda, 94 F.3d 592, 596 (9th Cir.1996).

When a defendant fails to object at trial to jury instructions, we review for plain error. Fed.R.Crim.P. 52(b); United States v. Lopez, 477 F.3d 1110, 1113 (9th Cir.), cert. denied, — U.S.-, 128 S.Ct. 181, 169 L.Ed.2d 90 (2007).

DISCUSSION

A. “No Adverse Inference” Instruction

In Carter, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241, the Supreme Court “held that a trial judge must, if requested to do so, instruct the jury not to draw an adverse inference from the defendant’s failure to take the stand.” James, 466 U.S. at 342, 104 S.Ct. 1830. The government argues that harmless error analysis applies to Carter error and that, even if the district court erred, any error was harmless beyond a reasonable doubt. We agree.²

The Supreme Court has recognized that some errors — known as structural errors—“defy analysis by harmless-error standards because they affect the framework within which the trial proceeds.” United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 2564, 165 L.Ed.2d 409 (2006) (internal quotation marks and alteration omitted); see generally Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (dividing errors into “trial errors” and “structural errors”). “If the defendant had counsel and was tried- by an impartial adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are subject to harmless-error analysis. Only in rare cases has [the Supreme] Court held that an error is structural.... ” Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 2551, 165 L.Ed.2d 466 (2006) (citations, internal quotation marks, and alterations omitted). The Court has expressly reserved the question whether harmless error analysis applies to Carter error. James, 466 U.S. at 351; Carter, 450 U.S. at 304, 101 S.Ct. 1112.

We hold that failure to give a Carter instruction is not a structural error, because it does not “affect the framework within which the trial proceeds.” Gonzalez-Lopez, 126 S.Ct. at 2564 (alteration omitted). The types of errors deemed structural are different in kind from a failure to give a Carter instruction. See Recuenco, 126 S.Ct. at 2551 n. 2 (cataloguing structural errors: “complete denial of counsel,” “biased trial judge,” “racial discrimination in selection of grand jury,” “denial of self-representation at trial,” “denial of public trial,” and “defective reasonable-doubt instruction”). The failure to give a Carter instruction is more akin, for example, to the failure of a trial judge to instruct the jury on an element of the offense. See Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (holding that failure to instruct the jury on an element of the offense is not structural error because it “does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence”). Moreover, a Carter instruction is not required in every criminal trial; it is merely available if a defendant so requests. Carter, 450 U.S. at 305, 101 S.Ct. 1112. We therefore join the only other circuit to have addressed the question and hold that Carter error is subject to harmless error analysis. See United States v. Brand, 80 F.3d 560, 568 (1st Cir.1996) (holding that the “failure to give a requested Carter instruction falls comfortably” in the category of errors amenable to harmless-error analysis); see also People v. Evans, 62 Cal.App.4th 186, 72 Cal.Rptr.2d 543, 549-50 (1998) (reaching the same conclusion).

Here, assuming that the district court erred, its failure to give a “no adverse inference” instruction was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (stating the standard that, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt”). The evidence that Defendant distributed, methamphetamine was not particularly strong, but the jury acquitted Defendant of that charge. The uncontradicted evidence that Defendant possessed methamphetamine with intent to distribute, by contrast, was overwhelming. See Brand, 80 F.3d at 568 (finding that any Carter error was harmless beyond a reasonable doubt because the uncontradicted evidence against the defendants was “overwhelming”).

When police executed the search warrant of Defendant’s own home, Defendant was the only person there. The police found methamphetamine hidden in the bedroom where Defendant was sleeping, as well as in a nearby bedroom and in the kitchen. They also found drug-weighing scales and a substantial amount of cash. Because the evidence demonstrated that Defendant was the sole occupant of his residence and that drugs, cash, and scales were discovered in the residence, we hold that the district court’s failure to instruct the jury not to draw any adverse inference from Defendant’s failure to testify was harmless beyond a reasonable doubt.

Defendant asserts that the error cannot be harmless because the question for the jury was one of credibility. Defendant’s theory of the case was that Acevedo planted drugs in the house before the controlled buy and before the execution of the search warrant and then lied about it on the witness stand. According to Defendant, the jury naturally would look to him to dispel Acevedo’s account of the events, and the district court’s failure to instruct on his silence therefore had an indisputable effect on the jury’s deliberations. We might be persuaded by Defendant’s argument were it not for the fact that the jury acquitted him of distribution. Logically, on this record, the jury rejected Acevedo’s testimony, which was the only link to the distribution charge. That is, the jury’s determination on the possession count, which was supported mainly by the physical evidence, did not turn on the question of Acevedo’s credibility.

We have addressed the question of reversible error in this context once before. In Castaneda, 94 F.3d at 596, we assessed similar facts and held that “[t]he district court did not commit reversible error by rejecting Castaneda’s proposed [Carter] instruction.” Castaneda is not a model of clarity, as at least one court has observed. See Evans, 72 Cal.Rptr.2d at 546 (noting that “the opinion is not entirely clear as to the grounds on which the court rested its decision”). Defendant also contends that Castaneda was wrongly decided. But our holding today rests on independent grounds that are different from, but not inconsistent with, the reasons given in Castaneda. We therefore need not address the correctness of Castaneda nor, if we were to agree that Castaneda was wrongly decided, request en banc rehearing. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc) (holding that, in the absence of an intervening Supreme Court decision, only the en banc court may overrule a decision by a three-judge panel).

B. Jury Instructions on the Government’s Burden of Proof

We hold that the district court did not err when instructing the jury on the government’s burden of proof. See United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (holding that plain error requires, first, that the district court erred).

“In evaluating the constitutionality of the jury charge, we must determine whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the requirements of due process.” Ramirez v. Hatcher, 136 F.3d 1209, 1211 (9th Cir.1998) (internal quotation marks omitted). The challenged instruction is not examined in isolation; “[r]ather, taken as a whole, the instructions must correctly convey the concept of reasonable doubt to the jury.” Id. (internal quotation marks and alterations omitted).

Here, the district court repeatedly emphasized the government’s burden to prove all elements of the offense beyond a reasonable doubt.³ In light of those clear jury instructions, we think that there is no likelihood that the jury understood that any lower standard of proof could suffice. The district court’s statement challenged by Defendant — “Your sole interest is to seek the truth from the evidence in the case. You’ve been chosen and sworn as jurors in this case to try the issues of fact presented by the parties and determine the issue of guilt or innocence” — is correct and does not contradict its numerous instructions on the government’s burden of proof.

CONCLUSION

Any error stemming from the district court’s failure to give a Carter instruction was harmless beyond a reasonable doubt, and the district court properly instructed the jury on the government’s burden of proof.

AFFIRMED.

1 . Pretrial, the court cautioned the jury pool: [Defendant’s] not required to take the stand himself.... If he calls no witnesses, doesn’t testify, ... you're to draw no adverse presumption from that fact....

He may not get on the stand for all kinds of reasons[,] ... [many of which] don’t have anything really to do with this case. You should simply remember that the burden lies over here [referring to the government].

2 . We therefore need not reach the government's alternative argument that the district court did not err because it properly enforced the procedural requirements of Federal Rule of Criminal Procedure 30(a).

3 . The district court's charge included the following jury instructions:

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant....

The test for conviction is proof beyond a reasonable doubt. It is not required that the government prove guilt beyond all possible doubt, but reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense, the kind of doubt that would make a reasonable person hesitant to act. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. A reasonable doubt may arise not only from the evidence, but also from the lack of evidence.

If after a careful and impartial consideration of all of the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it's your duty to find the defendant guilty.

The defendants plea of] "not guilty” ... imposes on the government the burden of establishing each of these elements by proof beyond a reasonable doubt.

... It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.

... [T]he government must prove each of the following elements [on Count 1] beyond a reasonable doubt.

... [T]he government must prove each of the following elements [on Count 2] beyond a reasonable doubt.

(Emphases added.)