FILED
NOT FOR PUBLICATION
AUG 04 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10056
Plaintiff-Appellee, D.C. No. 5:13-cr-00619-EJD-1
v.
MEMORANDUM*
HECTOR DAVID LOPEZ-BANUELOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted July 6, 2016
San Francisco, California
Before: SILVERMAN and NGUYEN, Circuit Judges, and GARBIS,** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
Hector David Lopez-Banuelos, while on probation, was subjected to a legal
search at his home, where drugs, drug paraphernalia, a loaded firearm, and
ammunition were found. At trial, a jury found him guilty on four counts of drug
and firearm violations. Lopez-Banuelos appeals his conviction and sentence. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Lopez-Banuelos asserts that his Sixth Amendment rights were violated when
the district court refused to compel the government to grant use immunity to his
wife during the suppression hearing. A violation of the Sixth Amendment right to
make a defense is reviewed de novo. United States v. Stever, 603 F.3d 747, 752
(9th Cir. 2010). Whether a district court erred by refusing to compel the
government to grant immunity to a defense witness is a mixed question of law and
fact reviewed de novo, and the underlying factual findings are reviewed for clear
error. United States v. Wilkes, 662 F.3d 524, 532 (9th Cir. 2011).
The executive branch has the sole authority and discretion to grant immunity
to a prospective defense witness. United States v. Straub, 538 F.3d 1147, 1156
(9th Cir. 2008). In Straub, we clarified the test for determining when due process
requires that the district court compel use immunity:
[T]he defendant must show that: (1) the defense
witness’s testimony was relevant; and (2) either (a) the
prosecution intentionally caused the defense witness to
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invoke the Fifth Amendment right against
self-incrimination with the purpose of distorting the
fact-finding process; or (b) the prosecution granted
immunity to a government witness in order to obtain that
witness’s testimony, but denied immunity to a defense
witness whose testimony would have directly
contradicted that of the government witness, with the
effect of so distorting the fact-finding process that the
defendant was denied his due process right to a
fundamentally fair trial.
Id. at 1162.
Lopez-Banuelos has not provided a proffer of the testimony he wished to
have immunized and, therefore, has not shown that the testimony was relevant.
Even assuming that the testimony would have been relevant and supportive of the
defense on the suppression issue, Lopez-Banuelos has not shown a violation of his
Constitutional rights. There has been no showing that the government
intentionally caused the witness to invoke the Fifth Amendment or selectively
denied immunity. Nor has there been a showing of any extraordinary
circumstances raising fairness concerns regarding the prosecution’s exercise of
discretion.
Lopez-Banuelos contends that the district court erred in its statement of the
case provided at the commencement of voir dire. Since trial counsel did not raise
these objections to the district court’s statement, we review the matter for plain
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error. See United States v. Mitchell, 502 F.3d 931, 955 (9th Cir. 2007). However,
we find no error. The district court did not inform the potential jurors of any
prejudicial information, cf. Scott v. Lawrence, 36 F.3d 871, 874 (9th Cir. 1994),
and properly instructed the selected jury that it must ultimately decide all questions
of fact, see United States v. Sanchez-Lopez, 879 F.2d 541, 553 (9th Cir. 1989).
Finally, Lopez-Banuelos contends that the jury instructions were inadequate
to enable him to present his theory of defense. “We review whether a trial court’s
instructions adequately covered a defendant’s proffered defense de novo, and
review a district court’s formulation of jury instructions for an abuse of discretion.”
United States v. Morsette, 622 F.3d 1200, 1201 (9th Cir. 2010) (per curiam)
(quoting United States v. Chastain, 84 F.3d 321, 323 (9th Cir. 1996)). The
instruction given was consistent with binding precedent on possession of a firearm
in furtherance of a drug trafficking offense and adequately covered the elements of
the offense. Perhaps the instruction could have been improved by providing
further definition of “in furtherance,” using wording from the defense instruction.
However, “[t]he trial court has substantial latitude so long as its instructions fairly
and adequately cover the issues presented.” United States v. Hicks, 217 F.3d 1038,
1045 (9th Cir. 2000) (citation omitted). Lopez-Banuelos “is not entitled to an
instruction with wording of his own choosing.” United States v. Hofus, 598 F.3d
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1171, 1174 (9th Cir. 2010) (citation omitted). The trial court instruction did not
interfere with the ability of Lopez- Banuelos to present his theory of the case, and
there was ample evidence for the jury to convict.
AFFIRMED.
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