FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10451
Plaintiff-Appellee, D.C. No.
v. 2:86-cr-00272-
FRANCISCO ARCHIVALDO PADILLA, PGR-1
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted
December 8, 2010—San Francisco, California
Filed February 9, 2011
Amended May 6, 2011
Before: Procter Hug, Jr., Dorothy W. Nelson, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
6055
UNITED STATES v. PADILLA 6057
COUNSEL
Dennis K. Burke, Randall M. Howe, and Joan G. Ruffennach,
United States Attorney’s Office, Phoenix, Arizona, for the
plaintiff-appellee.
6058 UNITED STATES v. PADILLA
Thomas M. Hoidal, The Law Office of Thomas M. Hoidal,
P.L.C., Phoenix, Arizona, for the defendant-appellant.
ORDER
The Opinion filed February 9, 2011, slip op. 2455, and
appearing at 633 F.3d 1177, is amended as follows:
1. At slip op. 2461, at the end of the first full paragraph
under the subheading ANALYSIS, insert the following as a foot-
note: “If the defendant requests a Carter instruction and the
district court declines to give the instruction, our review is
typically de novo. See United States v. Lopez, 477 F. 3d 1110,
1113 (9th Cir. 2007). The circumstances here are somewhat
different because the court did give an adequate instruction at
the outset of the trial and now Padilla objects to the court not
giving a second Carter instruction, even though he did not
object to the instructions actually given at the conclusion of
the trial. Even if we were to overlook this sequence of events
and review the issue de novo, we would reach the same
result.”
With this amendment, the panel has voted to deny the peti-
tion for panel rehearing. Judge McKeown votes to deny the
petition for rehearing en banc and Judges Hug and Nelson so
recommend.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehear-
ing en banc are denied.
No future petitions for rehearing or rehearing en banc will
be accepted.
UNITED STATES v. PADILLA 6059
OPINION
McKeown, Circuit Judge:
The Supreme Court has articulated a hierarchy of protec-
tions to guarantee that the Fifth Amendment right to remain
silent has practical meaning in a criminal trial. The principle
that a defendant has the right to remain silent “unless he
chooses to speak in the unfettered exercise of his own will”
is well known. Malloy v. Hogan, 378 U.S. 1, 8 (1964). In a
related vein, the exercise of the right to remain silent may not
be considered as evidence of guilt. Griffin v. California, 380
U.S. 609, 613-15 (1965). By extension, in Carter v. Kentucky,
the Court held that the trial judge has a constitutional obliga-
tion to give a “no-adverse-inference” instruction if properly
requested. 450 U.S. 288, 305 (1981). We consider here
whether the district court’s preliminary instruction that the
jury not consider the defendant’s choice not to testify satisfies
the court’s constitutional obligation under Carter. We hold
that it does under the circumstances of this case and affirm the
conviction.
I. BACKGROUND
Francisco A. Padilla timely appeals the district court’s
judgment finding him guilty of Conspiracy to Import Mari-
juana (21 U.S.C. § 963); Importation of Marijuana (21 U.S.C.
§§ 952(a) and 960); Conspiracy to Possess with Intent to Dis-
tribute Marijuana (21 U.S.C. §§ 846 and 841(b)(1)(B)); and
Possession with Intent to Distribute Marijuana (21 U.S.C.
§ 841(b)(1)(B)). Padilla’s first trial ended in a mistrial after
the jury hung. At the second trial, the jury convicted Padilla.
On appeal, Padilla challenges the admission of testimony
by several witnesses and claims prosecutorial error during
closing argument. We address these issues in an unpublished
memorandum disposition filed concurrently with this opinion
and affirm the district court on each claim. This opinion
6060 UNITED STATES v. PADILLA
addresses Padilla’s contention that the district court’s failure
to give a Carter admonition as part of the closing instructions
requires reversal.
At the outset of the second trial, Padilla filed proposed jury
instructions. Included among those instructions was an
instruction entitled “Effect of Failure of Accused to Testify,”
essentially a Carter instruction:
The law does not compel a defendant in a criminal
case to take the witness stand and testify, and no pre-
sumption of guilt may be raised, and no inference of
any kind may be drawn, from the failure of a defen-
dant to testify.
As stated before, the law never imposes upon a
defendant in a criminal case the burden or duty of
calling any witnesses or producing any evidence.
Before opening statements, the district court issued a num-
ber of preliminary jury instructions to the sworn jury, includ-
ing the following: “The defendant has no burden to prove his
innocence or present any evidence or testify. Since the defen-
dant has the right to remain silent, the law prohibits you in
arriving at your verdict from considering that the defendant
may not have testified.” The court went on to state: “The gov-
ernment must prove the defendant’s guilt beyond a reasonable
doubt.”
At the conclusion of the evidence, the judge informed
counsel that the court would give the same jury instructions
as those issued in Padilla’s first trial. The court was quite spe-
cific in its discussion of the instructions:
THE COURT: Let the record show we are in
chambers with counsel for the purpose of making a
record.
UNITED STATES v. PADILLA 6061
This morning, prior to starting the trial, the court
and counsel informally reviewed the requested jury
instructions. And the result of that informal discus-
sion was that the court would give the same instruc-
tions that were given at the original trial, with the
substitution by the government of its conspiracy
instructions and the addition of a flight instruction,
requested by the government, as well as the deletion
of the willfully — definition of willfully, except as
it applies to the general instruction of conspiracy.
Is that a fair representation of our discussion and
is that agreeable to the government?
[PROSECUTION]: That’s fine with the govern-
ment.
[DEFENSE]: It is, Your Honor.
The court went on to discuss an instruction withdrawn by
the defense and then, as to “[t]he remaining instructions sub-
mitted by the defendant,” stated that “the court felt [they]
were either covered or—well, was there any other instructions
that you wished to—”? Defense counsel quickly informed the
court that he did not wish to request any further instructions.
In the court’s final instructions to the jury, the judge
reminded the jury that “[t]he defendant is presumed to be
innocent, he does not have to testify or present any evidence
to prove innocence. The government has the burden of prov-
ing every element of the charge beyond a reasonable doubt.”
Asked at the conclusion of the jury instructions whether there
were any objections, Padilla’s counsel did not object to the
instructions given to the jury.
6062 UNITED STATES v. PADILLA
II. ANALYSIS
When a defendant properly requests a Carter instruction,
the court must instruct the jury that it may not make any infer-
ences based on the defendant’s choice not to testify. Carter,
450 U.S. at 305. It is undisputed that Padilla’s counsel
requested a “no-adverse-inference” instruction before the trial
began. Although the court did not give the exact instruction
requested nor reiterate the instruction at the conclusion of the
evidence, it did give a preliminary instruction that included
the gist of the Carter admonition. This appeal presents two
questions: whether the preliminary instruction was sufficient
under Carter and, if so, whether Padilla was entitled to a sec-
ond Carter instruction as part of the final set of instructions.
Because Padilla’s counsel failed to object to the jury instruc-
tions at trial, we review for plain error. See Fed. R. Crim. P.
52(b); see also United States v. Soto, 519 F.3d 927, 930 (9th
Cir. 2008).1
A. THE SUFFICIENCY OF THE PRELIMINARY JURY INSTRUC-
TIONS
[1] The Supreme Court instructs that a court must honor a
defendant’s proper request for a Carter instruction in order
“to minimize the danger that the jury will give evidentiary
weight to a defendant’s failure to testify.” Carter, 450 U.S. at
305. However, “[a] defendant is not entitled to any particular
form of instruction,” and the district court may in its discre-
tion issue jury instructions in the words of its choosing.
1
If the defendant requests a Carter instruction and the district court
declines to give the instruction, our review is typically de novo. See
United States v. Lopez, 477 F. 3d 1110, 1113 (9th Cir. 2007). The circum-
stances here are somewhat different because the court did give an ade-
quate instruction at the outset of the trial and now Padilla objects to the
court not giving a second Carter instruction, even though he did not object
to the instructions actually given at the conclusion of the trial. Even if we
were to overlook this sequence of events and review the issue de novo, we
would reach the same result.
UNITED STATES v. PADILLA 6063
United States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir.
1992).
We have considered the form of the Carter instruction on
two prior occasions. In United States v. Castaneda, the fol-
lowing instruction was deemed sufficient under Carter: “the
defendant is presumed to be innocent and does not have to
testify or present any evidence to prove innocence.” 94 F.3d
592, 596 (9th Cir. 1996) (internal quotations omitted). We
reasoned that “the instruction sufficiently covered the sub-
stance of [the defendant’s] proposed instruction: the defen-
dant’s failure to testify does not lessen the government’s
burden to prove its case.” Id. The opinion goes on to state that
the error was harmless because the jury was told during voir
dire that “an accused cannot be compelled to testify, and if he
exercises that right, you cannot allow that to affect your deter-
mination of the issues.” Id. (internal quotations omitted).
More than ten years after Castaneda, in Soto we observed
that “Castaneda is not a model of clarity” as to which ground
serves as the basis of the opinion. 519 F.3d at 931; see also
People v. Evans, 72 Cal. Rptr. 2d 543, 546 (Ct. App. 1998)
(“[T]he [Castaneda] opinion is not entirely clear as to the
grounds on which the court rested its decision.”). Although
the defendant in Soto asked for a Carter instruction—albeit
orally at the close of trial and long after the submission
deadline—we held that any error in failing to give the instruc-
tion was harmless error and thus Soto did not require us to
parse Castaneda. 519 F.3d at 931-32. We are mindful of
Judge Gould’s concurrence in Soto that Castaneda may have
been wrongly decided and “should be revisited through our en
banc process.” Id. at 936 (Gould, J., concurring). Judge Gould
took the position that the bare bones instruction in Castaneda
was insufficient. He wrote that “the Supreme Court dismissed
an almost identical ‘presumption of innocence’ jury instruc-
tion.” Id. (citing Carter, 450 U.S. at 304). Nor did Judge
Gould embrace the suggestion that an adverse inference
instruction during voir dire was sufficient. Castaneda, 519
6064 UNITED STATES v. PADILLA
F.3d at 936 n.1. We agree that Castaneda is troublesome in
many respects, but this case does not present the appropriate
opportunity to revisit Castaneda. In light of the more expan-
sive instruction provided in Padilla’s case—one that conforms
to the Supreme Court’s dictate in Carter—we need not con-
front the potential difficulties posed by Castaneda.
[2] The instructions in Padilla’s trial went beyond the
admonitions regarding the presumption of innocence and the
right not to testify; instead they included an additional instruc-
tion that in arriving at a verdict the jury could not “consider[ ]
that the defendant may not have testified.” At least four other
circuits have held similar instructions, referring to the prohibi-
tion on considering the choice not to testify, sufficient under
Carter. See United States v. Barraza Cazares, 465 F.3d 327,
332 (8th Cir. 2006) (instructions not to consider defendant’s
failure to testify sufficient under Carter); Welch v. City of
Pratt, 214 F.3d 1219, 1220-22 (10th Cir. 2000) (instruction
that jurors “should not consider the fact that the defendant did
not testify in arriving at [a] verdict” adequate under Carter);
United States v. Ladd, 877 F.2d 1083, 1089 (1st Cir. 1989)
(instruction that “the fact that the defendant does not [testify]
cannot even be considered by you in arriving at your verdict”
sufficient under Carter); United States v. Russo, 796 F.2d
1443, 1454-55 (11th Cir. 1986) (instruction that “if a Defen-
dant elects not to testify, you should not consider that in any
way during your deliberations” adequate under Carter).
[3] Like other circuits, we do not read Carter to require the
precise instruction requested by the defendant. See United
States v. Imran, 964 F.2d 1313, 1317 (2d Cir. 1992); Ladd,
877 F.2d at 1089. Rather, Carter requires an instruction ade-
quate to inform jurors of their obligation to draw no adverse
inference from the defendant’s choice not to testify. See Car-
ter, 450 U.S. at 305; see also James v. Kentucky, 466 U.S.
341, 350 (1984) (“The Constitution . . . does not afford the
defendant the right to dictate, inconsistent with state practice,
how the jury is to be told [that it may not draw an adverse
UNITED STATES v. PADILLA 6065
inference from a defendant’s choice not to testify].”). We con-
clude that the instructions given here, including the admoni-
tion that “the law prohibits you in arriving at your verdict
from considering that the defendant may not have testified,”
are sufficient to put the jury on notice of its obligation to draw
no adverse inference, thereby “minimiz[ing] the danger” that
the jury will penalize the defendant for exercising his Fifth
Amendment right not to testify. See Carter, 450 U.S. at 305.
B. THE TIMING OF THE JURY INSTRUCTIONS
[4] Having concluded that the district court gave a suffi-
cient Carter instruction, the dispute now shifts to a question
of timing. Padilla argues that the failure to provide the Carter
instruction at the conclusion of the evidence constitutes plain
error. In essence, Padilla argues for a second Carter instruc-
tion. The Supreme Court in Carter said nothing about the tim-
ing of the instruction and certainly gave no indication that
duplicate instructions were required. As a general matter, we
follow the rule that a defendant is not “entitled to an instruc-
tion that merely duplicates what the jury has already been
told.” Lopez-Alvarez, 970 F.2d at 597. In this case, not only
was the language of the preliminary Carter instruction suffi-
cient, the timing—after the jury was sworn—was sufficient to
pass constitutional muster.
[5] The significance of the sworn jury is well established.
When a jury is sworn, it is entrusted with the obligation to
apply the law, and we in turn presume that juries follow
instructions given to them throughout the course of the trial.
See Richardson v. Marsh, 481 U.S. 200, 211 (1987). In light
of the attachment of jeopardy, the jury’s oath has been
referred to as the start of the “actual trial.” United States v.
Dilg, 700 F.2d 620, 624 (11th Cir. 1983); see also Crist v.
Bretz, 437 U.S. 28, 37-38 (1978) (jeopardy attaches when jury
is sworn). Other decisions have similarly pinpointed the jury’s
oath as the essential moment with respect to constitutionally
required instructions. See United States v. Davila-Nater, 474
6066 UNITED STATES v. PADILLA
F.2d 270, 284-85 (5th Cir. 1973) (presumption of innocence
instructions given before testimony and alluded to during final
jury charge do not constitute reversible error). And in Soto,
where the court gave the Carter instruction only during voir
dire, we held only that any error in failing to issue a Carter
instruction at the close of evidence was harmless beyond a
reasonable doubt. 519 F.3d at 929-30. See also United States
v. Payne, 944 F.2d 1458, 1465 n.5 (9th Cir. 1991) (giving pre-
sumption of innocence instructions only prior to the jury’s
being sworn does not necessarily constitute reversible error).
But see Dilg, 700 F.2d at 624-25 (issuing the presumption
instruction only before the jury is sworn constitutes reversible
error).
[6] A trial court has substantial discretion in formulating
jury instructions. Arizona v. Johnson, 351 F.3d 988, 994 (9th
Cir. 2003) (“A trial judge, as governor of the trial, enjoys
wide discretion in the matter of charging the jury.”) (internal
citations and quotations omitted); see also United States v.
Rewald, 889 F.2d 836, 865 (9th Cir. 1989) (trial court’s dis-
cretionary authority includes the timing of admonishments
and instructions to the jury). The analysis of whether the tim-
ing or omission of a particular jury instruction constitutes
reversible error “must be based on the individual circum-
stances of the particular case.” See Payne, 944 F.2d at 1464.
Here, the court instructed the sworn jury that it could not con-
sider the defendant’s choice not to testify only four days
before deliberations began. At the conclusion of the trial, the
defense failed not once but twice to request an additional Car-
ter instruction when specifically invited to propose instruc-
tions or object. The court reminded the jury in its final charge
that the defendant had no obligation to testify, and notably
nothing in the prosecution’s closing argument implicated or
undermined this constitutional right. Under these circum-
stances, not giving a duplicate Carter instruction at the close
of evidence can hardly be characterized as plain error.
AFFIRMED.