FILED
NOT FOR PUBLICATION MAR 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50206
Plaintiff - Appellee, D.C. No. 3:08-CR-02348-WQH-1
v.
MEMORANDUM *
ADAM GRANT GUNDERSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted March 1, 2010
Pasadena, California
Before: CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM,**
District Judge.
Adam Gunderson appeals his conviction and sentence, following a jury trial,
for two counts of transportation of undocumented aliens in violation of 8 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, US District Judge for the District of
Minnesota, sitting by designation.
1324(a)(1)(A)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we
affirm.
Gunderson was caught at a border patrol checkpoint with two undocumented
alien men in his trunk. At trial, Gunderson took the stand and denied that he was
aware of the men before he was stopped at the checkpoint. On cross-examination,
the government sought to impeach Gunderson by asking about his reaction—or
lack thereof—when confronted with evidence of the two men. Following defense
counsel’s objection that the government’s question was a comment on silence in
violation of Gunderson’s Fifth Amendment rights, the district court struck the
entire line of questioning and instructed the jury to disregard it. Gunderson
contends that the striking of the testimony and admonishment did not cure
prejudice that resulted from the questioning, and that the district court should have
declared a mistrial.
We review de novo a claim that a defendant’s Fifth Amendment privilege
was violated. United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007).
“Doyle error requires reversal unless the prosecution demonstrates, beyond a
reasonable doubt, that the error was harmless.” United States v. Caruto, 532 F.3d
822, 827 (9th Cir. 2008).
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The government may use post-arrest, pre-Miranda silence for impeachment
purposes, but is prohibited from using post-arrest, post-Miranda silence at all, even
for impeachment. Caruto, 532 F.3d at 827; Hernandez, 476 F.3d at 796; United
States v. Velarde-Gomez, 269 F.3d 1023, 1032 (9th Cir. 2001) (en banc). The
record does not make entirely clear whether the alleged statement was made before
or after Gunderson received his Miranda warnings, or even whether the
government sought to comment on Gunderson’s statement or his silence. Even if
the government impermissibly commented on post-Miranda silence, however, the
court remedied the potential error by sustaining the contemporaneous objection,
instructing the jury to disregard the question, and giving appropriate jury
instructions. See United States v. Lopez, 500 F.3d 840, 846-47 (9th Cir. 2007).
Because the government’s brief comments were minimally harmful and
immediately remedied, they did not “so infect[] the trial with unfairness as to make
the resulting conviction a denial of due process.” Id. There was thus no Doyle
error. See id.
During deliberations, the jury sent out a note requesting clarification as to
what testimony they should not consider. Gunderson contends that the note shows
that the jury was confused. The jury’s question, however, gave the district court
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the opportunity to clarify what evidence it had struck, and suggests only that the
jury endeavored to comply with its instructions.
At sentencing, the district court denied Gunderson’s request for a two-level
downward adjustment in offense level for minor role. See U.S.S.G. § 3B1.2. The
district court reasoned that it lacked sufficient information about Gunderson’s role
in the offense and his relationship to others in the scheme to conclude that he
merited a reduction for minor role. Gunderson contends that the material
witnesses’ testimony at trial, indicating the involvement of multiple other
participants, supported the conclusion that Gunderson was a minor player in the
scheme. Gunderson further objects that the district court placed him in a catch-22
by requiring him to offer evidence of his exact role in the scheme and relationship
to the other participants in order to secure a minor role reduction; doing so, he
contends, would have been inconsistent with his position that he had no role in the
scheme at all.
The defendant bears the burden of proving the applicability of a minor role
adjustment by a preponderance of the evidence. United States v. Davis, 36 F.3d
1424, 1436 (9th Cir. 1994). The district court’s task was to compare the
defendant’s conduct, including relevant conduct, to that of other co-participants in
the scheme. United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006). While
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the material witnesses’ testimony did indicate that other participants were
involved, the testimony did not detail the relationships between the various
participants or explain their relative roles in the scheme. There was no other trial
evidence of Gunderson’s role in relation to that of his co-participants, and
Gunderson did not introduce additional evidence of his role at sentencing.
Because Gunderson did not meet his burden, the district court did not clearly err in
concluding that, on the limited evidence before it, it could not determine the exact
nature of Gunderson’s role in the scheme relative to the other participants, and that
Gunderson was thus not entitled to a minor role reduction.
AFFIRMED.
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