FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-50433
Plaintiff-Appellee,
v. D.C. No.
CR-04-02506-NAJ
JORGE ENRIQUE LOPEZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted
March 8, 2006—Pasadena, California
Filed November 30, 2006
Before: Susan P. Graber, Kim McLane Wardlaw, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson
18869
18872 UNITED STATES v. LOPEZ
COUNSEL
Chase Scolnick, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
Timothy F. Salel, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
OPINION
RAWLINSON, Circuit Judge:
In this appeal, we must decide whether the government’s
impermissible references to Appellant Jorge Enrique Lopez’s
post-Miranda silence mandate reversal of his conviction.
Because we conclude that any error was harmless beyond a
reasonable doubt and, because none of Lopez’s other asser-
tions of error is meritorious, we affirm the conviction and sen-
tence.
I. FACTS AND PROCEDURAL HISTORY
On September 17, 2004, Lopez entered the United States
and was arrested by a United States Border Patrol Senior
Patrol Agent and transported to a Border Patrol Station, where
he was processed. Subsequently, Lopez was indicted for being
UNITED STATES v. LOPEZ 18873
a deported alien found in the United States in violation of 8
U.S.C. § 1326.
At trial, Lopez took the stand and asserted a duress defense.
Lopez testified that he entered the United States, hoping to get
arrested and avoid being harmed by a drug dealer. During
cross-examination, Lopez was questioned about whether he
related the harm that he faced to any of the various people
with whom he came into contact before he was transported to
the Border Patrol Station. Lopez admitted that he did not tell
anyone about the threats. The prosecutor also questioned
Lopez about what he told the agents at the Border Patrol Sta-
tion, where Lopez was processed and given his constitution-
ally mandated Miranda warning by Agent Michael
Harrington (Harrington). The relevant portion of the line of
questioning began as follows:
Q. You never told any of the border patrol agents
about any threats that occurred to you in Mex-
ico, did you?
A. No, sir.
Q. You never told any of the border patrol agents
who were there about any guys with knives who
were chasing you, did you?
A. No, sir.
Q. You didn’t tell any of them about anything
about being scared, running for your life into
the United States, did you?
A. No, sir.
Q. You didn’t tell [Harrington] about, [sic] “I am
actually scared because I was running from a
18874 UNITED STATES v. LOPEZ
guy who tried to kill me.” You never told him
that, did you?
A. No, sir.
(Emphasis added).
Lopez objected to this series of questions. The district court
overruled the objection on the basis that the questions were in
reference to Lopez’s pre-Miranda processing.
The prosecutor began his closing argument by noting that
while Lopez was at the port of entry, he failed to “indicate to
anyone whatsoever that he feared for his life” and reiterated
that “there was no person that [Lopez] went to and explained
the circumstances.” During rebuttal, the prosecutor stated that
“[Lopez] was hanging out near to [the] port of entry; [sic] did
not tell any of the agents, any of the immigration officers, any
of the customs officials, anybody, that he had been threatened
whatsoever.”
Lopez was convicted and sentenced to thirty months’
imprisonment.
II. DISCUSSION
A. Fifth Amendment
According to Lopez, the Government violated his Fifth
Amendment right to remain silent by impermissibly com-
menting on his post-arrest silence. Lopez does not challenge
all of the prosecutor’s comments regarding his silence, as he
rightfully concedes “that the only appropriate context to ques-
tion or comment on Mr. Lopez’s failure to explain his duress
was pre-arrest.” United States v. Beckman, 298 F.3d 788, 795
(9th Cir. 2002). “We review de novo whether references to a
defendant’s silence violate his Fifth Amendment privilege
against self-incrimination.” United States v. Bushyhead, 270
UNITED STATES v. LOPEZ 18875
F.3d 905, 911 (9th Cir. 2001). “If there was an improper com-
ment on a defendant’s silence at trial, violating the Fifth
Amendment privilege against self-incrimination, we apply
harmless error review.” Id.
i. Doyle Error
[1] The Fifth Amendment right to remain silent contains an
implicit assurance “that silence will carry no penalty.” Doyle
v. Ohio, 426 U.S. 610, 618 (1976). “[I]t would be fundamen-
tally unfair and a deprivation of due process to allow the
arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.” Id. (footnote reference omitted).
However, “[t]he Supreme Court has subsequently held in
Greer v. Miller, 483 U.S. 756 (1987), that there is no Doyle
violation if the district court promptly sustains a timely objec-
tion to a question concerning post-arrest silence, instructs the
jury to disregard the question, and gives a curative jury
instruction.” United States v. Foster, 985 F.2d 466, 468 (9th
Cir. 1993), as amended, 995 F.2d 882 (9th Cir. 1993) and 17
F.3d 1256 (9th Cir. 1994).
[2] The prosecutor’s cross-examination technique consisted
of questioning Lopez chronologically about the various peo-
ple with whom he interacted at the border. However, the
inquiries regarding what Lopez failed to tell Harrington vio-
lated Doyle, because Lopez’s contact with Harrington encom-
passed both pre-Miranda and post-Miranda periods. By
drawing attention to the fact that Lopez “never” mentioned
the alleged threats to Harrington, the prosecutor implicated
Lopez’s silence both pre-Miranda and post-Miranda. “Even
if counsel for the government intended his comments to refer
only to post-arrest/pre-Miranda silence, the actual language
used contains no such limitation and it is highly doubtful that
the jury understood any such limitation.” United States v.
Baker, 999 F.2d 412, 415 (9th Cir. 1993).
18876 UNITED STATES v. LOPEZ
Similarly, although for the most part the prosecutor permis-
sibly referenced Lopez’s pre-Miranda silence during closing
argument, he also made overly broad references that imper-
missibly encompassed Lopez’s failure to mention the threats
to anyone after the invocation of his right to remain silent.1
“[A] prosecution closing argument that broadly condemn[s]
appellant[’s] silence: pre-Miranda and post-Miranda vio-
late[s] due process.” United States v. Whitehead, 200 F.3d
634, 639 (9th Cir. 2000) (citation and internal quotation
marks omitted).
[3] In sum, Doyle error occurred when the prosecutor asked
Lopez whether he ever told Harrington about the threats he
received, and when he argued during closing argument that
“[t]here was no duress related to any government agent.”
ii. Harmless Error
[4] The burden of proving a constitutional error harmless
beyond a reasonable doubt rests upon the government. United
States v. Williams, 435 F.3d 1148, 1162 (9th Cir. 2006).
“When deciding whether a prosecutor’s reference to a defen-
dant’s post-arrest silence was prejudicial, this court will con-
sider the extent of comments made by the witness, whether an
inference of guilt from silence was stressed to the jury, and
the extent of other evidence suggesting defendant’s guilt.”
Bushyhead, 270 F.3d at 913 (citation omitted).
[5] The only witness who testified about Lopez’s post-
Miranda silence was Lopez himself, on cross-examination.
However, the “quantitative extent” of Lopez’s responses
1
We reject the government’s argument that its comments constituted a
fair response to testimony that Lopez’s counsel invited. The questions
posed on direct examination addressed only pre-Miranda exchanges,
while the government’s cross-examination strayed into post-Miranda
exchanges. Where, as here, the government’s comments are far broader
than a mere response to defense questioning, the error in commenting on
post-Miranda silence is not invited. See Baker, 999 F.2d at 416 n.5.
UNITED STATES v. LOPEZ 18877
regarding his post-Miranda silence “was not great in relation
to the remainder of his testimony,” which focused on Lopez’s
failure to tell the various people he encountered pre-Miranda
about the threats he received. United States v. Velarde-
Gomez, 269 F.3d 1023, 1035 (9th Cir. 2001) (en banc). Fur-
ther, “the qualitative extent” of Lopez’s testimony implicating
his post-Miranda silence was limited; the prosecutor’s “man-
ner of questioning” focused primarily on Lopez’s pre-
Miranda silence. Id. As a result, Lopez’s case can be distin-
guished from other cases where the defendant’s post-Miranda
silence formed the basis of the government’s suggested infer-
ence of guilt. Cf. Velarde-Gomez, 269 F.3d at 1035, and
United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.
1991). By far, the most powerful evidence of Lopez’s actions
was taken from his pre-Miranda silence. If Lopez was in fact
running for his life, it would be reasonable to expect that he
would disclose that fact in the heat of the moment when he
first encountered border agents. That he did not do so sup-
ports a permissible inference, based on pre-Miranda silence,
that he did not disclose that fact because it was not the true
state of affairs. See Beckman, 298 F.3d at 795. Accordingly,
the same inference would follow if the post-Miranda ques-
tions were eliminated from consideration. Adding these infer-
ences to the stipulated evidence of guilt, i.e., Lopez’s
presence in the United States after deportation, and his lack
of citizenship, harmless error is established beyond a reason-
able doubt. See United States v. Pino-Noriega, 189 F.3d 1089,
1099 (9th Cir. 1999) (finding error harmless where there was
“overwhelming other evidence of [defendant-appellant’s]
guilt”).
[6] Consideration of “whether an inference of guilt from
silence was stressed to the jury” is also appropriate. Bushy-
head, 270 F.3d at 913. An inference of guilt is stressed to the
jury where the government “draw[s] a direct inference of guilt
[from defendant’s silence] during its closing argument.”
Velarde-Gomez, 269 F.3d at 1035. Although the prosecutor’s
broad rebuttal argument encompassed Lopez’s post-Miranda
18878 UNITED STATES v. LOPEZ
silence, he did not “draw[ ] a direct inference of guilt . . . [or]
use[ ] the testimony about [Lopez’s] [post-Miranda] silence as
[his] principal means of meeting [the government’s] burden.”
Id. Rather, the reference was made contemporaneously with
references to Lopez’s pre-Miranda silence and Lopez’s state-
ment during his testimony that he wanted to be arrested so he
would not have to spend another night on the streets. This
record does not support a conclusion that post-Miranda
silence was “stressed.” Cf. Whitehead, 200 F.3d at 638-39
(concluding that prosecutor stressed the defendant’s silence
where all references were to the period after defendant
invoked his right to remain silent).
As discussed, the evidence that Lopez faced no duress was
powerfully incriminating.2 Even though the prosecutor imper-
missibly elicited testimony and improperly referenced
Lopez’s post-Miranda silence during closing argument, it was
permissible for the jury to consider Lopez’s pre-arrest, pre-
Miranda silence as substantive evidence of guilt. See Beck-
man, 298 F.3d at 795. Therefore, the jury could permissibly
consider the powerfully incriminating admission that Lopez
mentioned nothing about the purported threats to: (1) the bor-
der agents whom he encountered at the Calexico port of entry,
(2) the security officer, or (3) the arresting border agents. (The
jury could also consider Lopez’s powerfully incriminating,
2
The evidence of Lopez’s guilt on the 8 U.S.C. § 1326 charge was over-
whelming. Lopez stipulated that he was an alien who had previously been
deported and who did not have consent to re-enter the United States. See
United States v. Pina-Jaime, 332 F.3d 609, 611 (9th Cir. 2003) (noting
that “[a] deported alien violates 8 U.S.C. § 1326(a)(2) if he ‘enters,
attempts to enter, or is at any time found in’ the United States unless ‘the
Attorney General has expressly consented to such alien’s reapplying for
admission.’ ”) (citation and alteration omitted). See also United States v.
Solorzano-Rivera, 368 F.3d 1073, 1080 (9th Cir. 2004) (noting that jump-
ing over a border fence in order to get away from harassers constituted
voluntary entry); United States v. Gonzalez-Sandoval, 894 F.2d 1043,
1047 (9th Cir. 1990) (finding harmless error beyond a reasonable doubt in
view of overwhelming evidence of guilt under 8 U.S.C. § 1326).
UNITED STATES v. LOPEZ 18879
pre-Miranda statement, not that he was threatened, but that he
“didn’t want to spend another night in the streets.”
[7] We also examine the length of jury deliberation when
assessing harmlessness. “Longer jury deliberations weigh
against a finding of harmless error because lengthy delibera-
tions suggest a difficult case.” Velarde-Gomez, 269 F.3d at
1036 (citations, alterations and internal quotation marks omit-
ted). In this case, the jury deliberated for approximately two
and one-half hours, suggesting that any error in allowing testi-
mony or commentary on Lopez’s post-arrest silence was
harmless. Cf. id. (noting that the jury deliberated for four
days, thereby supporting an inference that the impermissible
evidence affected jury deliberations).
iii. Due Process
[8] No Doyle error occurs “if the district court promptly
sustains a timely objection to a question concerning post-
arrest silence, instructs the jury to disregard the question, and
gives a curative jury instruction.” Foster, 985 F.2d at 468.
The record reveals two such instances during the trial of this
case.3 The trial court acted promptly to prevent “the inquiry
that Doyle forbids” by “explicitly sustain[ing] an objection to
the . . . question[s] that touched upon [Lopez’s] post-arrest
silence [and] . . . specifically advis[ing] the jury that it should
disregard any questions to which an objection was sustained.”
Greer, 483 U.S. at 764 (footnote reference omitted). Never-
theless, even in the absence of a Doyle violation, the prosecu-
3
After being “admonish[ed] . . . not to go into any post-invocation of
the statements,” the prosecutor asked Lopez, “[t]he first time you told any
government agent that you feared for your safety because there was a man
with a knife was yesterday, correct?” The single question was followed by
an objection that was sustained. The court also struck the answer and
admonished the jury to disregard the answer. During re-cross-examination,
the prosecutor asked Lopez “[y]ou told no one on September 17th that
anyone had threatened you with a knife?” The judge sua sponte excluded
that question, which was never answered.
18880 UNITED STATES v. LOPEZ
tor’s “attempt[s] to violate the rule of Doyle by asking . . .
improper question[s] in the presence of the jury” constitute
prosecutorial misconduct, and that misconduct warrants rever-
sal where it “may [have] so infec[ted] the trial with unfairness
as to make the resulting conviction a denial of due process.”
Id. at 765 (citation omitted). Because the district court sus-
tained the Doyle objections, struck the one answer, admon-
ished the jury to disregard that answer, and instructed the jury
that “questions . . . by lawyers are not evidence” and that “tes-
timony that has been excluded or stricken or that you have
been instructed to disregard is not evidence and must not be
considered[,]” the prosecutor’s improper questions did not
violate Lopez’s due process rights. See id. at 766 (holding that
there was no due process violation occasioned by the prosecu-
tor’s attempt to violate Doyle on closely analogous facts).
B. Jury Instruction—Burden of Proof
Lopez challenges the district court’s jury instruction that
Lopez was “presumed innocent unless and until proved guilty
beyond a reasonable doubt,” claiming that the instruction
unconstitutionally abandoned the presumption of innocence.
“We review de novo a claim that a jury instruction violates
due process,” United States v. Tirouda, 394 F.3d 683, 687 n.1
(9th Cir. 2005), cert. denied, 126 S.Ct. 1462 (2006), (citation
omitted), by “creating an unconstitutional presumption or
inference.” Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir. 1999)
(citation omitted).
[9] “Although the Constitution does not require jury
instructions to contain any specific language, the instructions
must convey both that a defendant is presumed innocent until
proven guilty and that he may only be convicted upon a show-
ing of proof beyond a reasonable doubt.” Gibson v. Ortiz, 387
F.3d 812, 820 (9th Cir. 2004) (citation omitted). “Any jury
instruction that reduces the level of proof necessary for the
Government to carry its burden is plainly inconsistent with
the constitutionally rooted presumption of innocence.” Id.
UNITED STATES v. LOPEZ 18881
(alterations, citation and internal quotation marks omitted).
“Any challenged instruction must be considered in light of the
full set of jury instructions and the trial record as a whole.”
Id. at 821 (citation omitted).
[10] Before trial began, the judge instructed the jury to pre-
sume Lopez “innocent unless and until proved guilty beyond
a reasonable doubt.” At the close of trial, the judge similarly
instructed the jury that Lopez “is presumed to be innocent . . .
[and] [t]he government has the burden of proving every ele-
ment of the charge beyond a reasonable doubt.” He later reit-
erated that “the government must prove each of the . . .
elements [of 8 U.S.C. § 1326(a)] beyond a reasonable doubt.”
We have expressly held that use of the phrase “unless and
until” adequately informs the jury of the presumption of inno-
cence. See United States v. Brady, 579 F.2d 1121, 1131 (9th
Cir. 1978) (upholding instructions which concluded with the
language, “unless and until outweighed by evidence in the
case to the contrary, the law presumes that a person is inno-
cent of crime or wrong”); see also Juan H. v. Allen, 408 F.3d
1262, 1279 (9th Cir. 2005), cert. denied, 126 S.Ct. 1142
(2006), and 126 S.Ct. 1145 (2006). Moreover, when the
instructions are considered as a whole, it is not reasonably
likely that the jury interpreted the “unless and until” phrase as
shifting the burden of proof to Lopez. See Bruce v. Terhune,
376 F.3d 950, 955-56 (9th Cir. 2004) (per curiam) (noting that
there is no error where “the instructions as a whole made clear
to the jury that the prosecution bore the burden of proving
each element of the crime beyond a reasonable doubt”) (cita-
tion omitted).
C. Sentence
For the first time on appeal, Lopez challenges his sentence.
Lopez asserts that the district court erred by imposing a sen-
tence in excess of the two-year maximum set forth in 8 U.S.C.
§ 1326(a). Lopez contends that the enhancement pursuant to
8 U.S.C. § 1326(b) was impermissibly predicated on a prior
18882 UNITED STATES v. LOPEZ
felony conviction that was not proved to a jury or admitted by
Lopez. Lopez urges us to conclude that the United States
Supreme Court’s holding in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), has been narrowed by subse-
quent rulings, calling into doubt the enhancement in this case.
A claim raised for the first time on appeal that a sentence
violates a defendant-appellant’s constitutional rights under
Apprendi v. New Jersey, 530 U.S. 466 (2000), is reviewed for
plain error. United States v. Castillo-Rivera, 244 F.3d 1020,
1024 (9th Cir. 2001). “Under the plain error standard, [Lopez]
must establish an error, that was plain, and that affected his
substantial rights.” United States v. Buckland, 289 F.3d 558,
563 (9th Cir. 2002) (en banc).
Lopez’s argument is foreclosed by our precedent. See
United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir.
2005) (noting that this Court continues to be bound by the
Supreme Court’s holding in Almendarez-Torres), cert. denied,
126 S.Ct. 1911 (2006); see also, United States v. Delaney,
427 F.3d 1224, 1226 (9th Cir. 2005) (stating that “[t]he
Supreme Court has made clear that the fact of a prior convic-
tion need not be proved to a jury beyond a reasonable doubt
or admitted by the defendant to satisfy the Sixth Amend-
ment”). Similarly, Lopez’s argument that because 8 U.S.C.
§ 1326(b)(2) requires an alien’s prior removal to have been
subsequent to the prior conviction, Apprendi requires that the
temporal sequence of conviction and removal—as distinct
from the fact of conviction itself—be proved to a jury beyond
a reasonable doubt, is foreclosed. See Castillo-Rivera, 244
F.3d at 1025 (explaining that Apprendi carved out a recidi-
vism exception under which neither the prior conviction nor
the fact that the removal was subsequent to the prior convic-
tion must be proved to a jury).
III. CONCLUSION
The prosecutor impermissibly commented on Lopez’s right
to remain silent in violation of the rule articulated in Doyle.
UNITED STATES v. LOPEZ 18883
However, the Doyle error was harmless beyond a reasonable
doubt because of the limited reference to Lopez’s post-
Miranda silence and the overwhelming evidence of Lopez’s
guilt. Although the prosecutor’s questions were impermissi-
ble, Lopez’s due process rights were not violated because the
questions were immediately objected to, and the district court
gave appropriate limiting instructions. It is not reasonably
likely that the jury interpreted the district court’s instruction
that Lopez was “presumed innocent unless and until proved
guilty” as shifting the burden of proof to Lopez. Finally, the
jury was not required to find the fact of a prior conviction.
CONVICTION AND SENTENCE AFFIRMED.