United States v. Santiago Contreras Orozco

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30199
Plaintiff-Appellee,
D.C. No.
v. 2:11-cr-00150-
FVS-1
SANTIAGO CONTRERAS OROZCO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted
June 5, 2014—Seattle, Washington
Filed August 13, 2014
Before: Alfred T. Goodwin, M. Margaret McKeown,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Goodwin
2 UNITED STATES V. OROZCO
SUMMARY*
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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. OROZCO 3
defendant offered a reasonable excuse for his or her untimely
request to testify.
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
21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), and 18 U.S.C. § 2, and
carrying a firearm during a drug trafficking crime, in
violation of 23 U.S.C. § 541(a)(1) and 18 U.S.C.
§ 924(c)(1)(A)(i). Orozco appeals his convictions,
challenging two rulings made by the district court. First, he
assigns error to the district court’s denial of his motion for a
mistrial because a government witness testified that Orozco
was advised of “his right to a consulate.” Orozco, a citizen of
Mexico, argues that the consulate reference was “highly
prejudicial” because it amounted to a disclosure that he was
illegally in the United States. Second, Orozco claims that his
constitutional rights were violated when the district court
refused to reopen the evidence to allow him to testify—a
request Orozco made during the closing-argument phase of
4 UNITED STATES V. OROZCO
trial. Because Orozco fails to establish that either of the
district court’s decisions was an abuse of discretion, we
affirm the judgment.
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
UNITED STATES V. OROZCO 5
. . . 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
6 UNITED STATES V. OROZCO
meet with Orozco, and after doing so, informed the court that
Orozco had decided to exercise his right to remain silent and
would not testify. The defense then rested its case without
calling any witnesses. The parties finalized jury instructions,
and the government presented its closing argument to the
jury. Outside the presence of the jury, Orozco’s counsel
informed the court that “after hearing [the government’s]
closing, [Orozco] tells me he’s changed his mind” about
testifying. The district court denied Orozco’s request to
testify, reasoning that the jury had been instructed that trials
move in stages, and despite Orozco being given a fair chance
to testify during the evidence-gathering phase of trial, he had
chosen not to do so.
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 18 U.S.C.
§ 4244(d),1 entered a provisional sentence of life in prison
and remanded Orozco to the custody of the Attorney General
for treatment in a suitable facility. Orozco appeals.
II
Orozco argues that the district court erred by denying his
motion for a mistrial and his motion for a new trial under
Federal Rule of Criminal Procedure 33 because Helm’s
reference to consular notification informed the jury that
1
At sentencing, the government stipulated that Orozco was not
competent for sentencing. Nothing in the record indicates that Orozco
was not competent to stand trial. When asked during oral argument,
Orozco’s appellate counsel conceded this point.
UNITED STATES V. OROZCO 7
Orozco was illegally in the United States. We affirm because
the district court did not abuse its discretion in denying the
motions. See United States v. Allen, 341 F.3d 870, 891 (9th
Cir. 2003) (mistrial); United States v. Sarno, 73 F.3d 1470,
1507 (9th Cir. 1995) (motion for new trial).
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 Vienna Convention on Consular Relations, art.
36, April 24, 1963, [1970], 21 U.S.T. 77, T.I.A.S. No. 6820;
see also 28 C.F.R. § 50.5. Moreover, we agree with the
district court that the testimony was a solitary,
inconsequential comment made during Helm’s testimony.
Under the circumstances, the district court was well within its
broad discretion when it determined that Orozco had failed to
establish that a mistrial was warranted. See Renico v. Lett,
559 U.S. 766, 774 (2010) (noting that the “decision to declare
a mistrial is left to the sound discretion of the judge, but the
power ought to be used with the greatest caution, under
urgent circumstances, and for very plain and obvious causes.”
(citations and internal quotation marks omitted)).
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
8 UNITED STATES V. OROZCO
instruction, the argument is without merit in any event. See
Retlaw Broad. Co. v. N.L.R.B., 53 F.3d 1002, 1005 (9th Cir.
1995) (declining to address an argument “summarily
mentioned in [the] opening brief”). Helm’s fleeting reference
to the right to a consulate was essentially meaningless.
Because a cautionary instruction would have needlessly
brought the jurors’ attention to Helm’s irrelevant testimony,
it was not an abuse of discretion for the district court to
continue the trial and forgo instructing the jury to disregard
the consulate reference. See United States v. McCown,
711 F.2d 1441, 1454 (9th Cir. 1983).
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 Fed. R. Evid. 404(b).
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
UNITED STATES V. OROZCO 9
a defendant must generally invoke the right to testify before
the close of evidence and we consider the following factors
(the “Walker factors”) 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
defendant offered a reasonable excuse for his or her untimely
request to testify. See United States v. Byrd, 403 F.3d 1278,
1284, 1287 (11th Cir. 2005) (citing United States v. Walker,
772 F.2d 1172, 1177 (5th Cir. 1985)); United States v.
Peterson, 233 F.3d 101, 106 (1st Cir. 2000).
“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 (1987)); 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,
10 UNITED STATES V. OROZCO
483 U.S. at 55 & n.11, 56; see also Chambers, 410 U.S. at
302 (“In the exercise of this right, the accused, as is required
of the State, must comply with established rules of procedure
and evidence designed to assure both fairness and reliability
in the ascertainment of guilt and innocence.”).
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
UNITED STATES V. OROZCO 11
justifying the untimely request to testify and the character of
his or her proposed testimony. Doing so enables the
government to better assess whether it will seek to introduce
rebuttal evidence, and in turn, allows the district court to
better assess the potential disruption the proposed testimony
will create. Considering each of the Walker factors in light of
the record in this case, we cannot say the district court abused
its discretion.
AFFIRMED.