NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50234
Plaintiff-Appellee, D.C. Nos.
3:20-cr-00439-LAB-1
v. 3:20-cr-00439-LAB
OSCAR LUNA-AQUINO,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted December 9, 2021
Pasadena, California
Before: BERZON and BEA, Circuit Judges, and BENNETT,** District Judge.
Appellant Oscar Luna-Aquino (“Luna”) was convicted of importation of
methamphetamine, in violation of 21 U.S.C. § 960, after he was stopped at a port of
entry with approximately 95 pounds of pure methamphetamine concealed in his
vehicle. At trial, the sole issue in dispute was whether Luna had knowledge of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard D. Bennett, United States District Judge for the
District of Maryland, sitting by designation.
drugs he was transporting. On appeal, Luna asserts that four isolated questions by
the prosecutor drew attention to his failure to testify in violation of his Fifth
Amendment privilege against compelled self-incrimination.1 For the following
reasons, we affirm Luna’s conviction.
“To realize the Fifth Amendment’s guarantee against compelled self-
incrimination, the Supreme Court has held that it is improper for a prosecutor to
comment on a defendant’s decision not to testify.” United States v. Preston, 873 F.3d
829, 842 (9th Cir. 2017) (citing Griffin v. California, 380 U.S. 609, 615 (1965)). A
prosecutorial comment will violate this rule “‘if it is manifestly intended to call
attention to the defendant's failure to testify, or is of such a character that the jury
would naturally and necessarily take it to be a comment on the failure to testify.’”
Rhoades v. Henry, 598 F.3d 495, 510 (9th Cir. 2010) (citation omitted).
As a component of its case for knowledge, the Government introduced
translations of Spanish-language text messages Luna exchanged with two unknown
and unidentified contacts, “Pedro, Jr.” and “Jr.” During its direct examination of
Ruth Monroy—a translation expert from the United States Attorney’s Office and the
1
Luna also suggests that the court erred when it declined to instruct the jury
to find knowledge of drug type and quantity as predicates for conviction on the
importation offense. However, this issue is foreclosed by United States v. Collazo,
984 F.3d 1308 (9th Cir. 2021) (en banc), in which this Court held that a defendant
need not have knowledge of the type and quantity of drugs he was distributing to be
convicted under a similar statute. Luna acknowledges this authority and has only
raised this issue to preserve it for further review.
2
expert witness responsible for authenticating these translations—the Government
asked the following questions:
Would you agree that one benefit to providing in-court interpretation is
that you can ask the speaker to clarify what they mean?
...
One other benefit to in-court interpretation is the formality with which
we speak in a courtroom, right?
...
Going back to comparing [translating prerecorded messages] with an
in-court interpretation, do you have the benefit of asking the speaker
what he or she meant?
...
Again, comparing to in-court translation services, do you have the
benefit of asking a writer [of text messages] what he or she meant or
seeking clarification from them?
Luna insists that these questions violated Griffin by emphasizing that the translator
could have asked him what his messages mean if he took the witness stand. This
contention is unpersuasive.
These questions do not constitute Griffin statements, as it is quite unlikely a
jury would see them as commentary on Luna’s failure to testify as to the meaning of
his communications. These questions were posed during a brief colloquy between
the prosecutor and Ms. Monroy about the process she used to translate Luna’s
messages. At the time of this colloquy, the jury was aware that Ms. Monroy had
served as a courtroom interpreter, and the prosecutor was aware that her translations
would be challenged. These questions enhanced Ms. Monroy’s credibility by
acknowledging the inherent limitations of her translations and the difficult
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circumstances in which she performed them. Moreover, while Ms. Monroy was
asked to address contemporaneous clarifications of oral testimony, any explanation
by Luna would have been offered long after the translations were introduced. Given
these contextual considerations, we are not persuaded that a jury would have viewed
these four questions as anything more than a technical inquiry about the translation
process.
Moreover, the prosecutor’s questions would in any event be too attenuated to
constitute indirect Griffin error. To determine whether a comment “naturally and
necessarily” draws attention to a defendant’s failure to testify, “[c]ourts have
distinguished between those cases in which the defendant is the sole witness who
could possibly offer evidence on a particular issue, and those cases in which the
information is available from other defense witnesses as well.” Lincoln v. Sunn, 807
F.2d 805, 809–10 (9th Cir. 1987); accord Rhoades, 598 F.3d at 510 (“Comment is
unacceptable . . . if the defendant is the sole person who could provide information
on a particular issue.”). Here, the prosecutor’s references to the author of these
communications did not “naturally and necessarily” refer to Luna, as many of the
incriminating messages were written by his alleged co-conspirators: “Pedro, Jr.” and
“Jr.” Accordingly, to the extent that these questions incidentally highlight Luna’s
silence, they may also be viewed as commentary on the difficulties created by the
unavailability of these witnesses and defense counsel’s failure to call them to testify.
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This possibility is sufficient to avoid implied Griffin error, as “[a] prosecutor may
comment on a defendant’s failure to present witnesses” other than the defendant, so
long as the comment “is not phrased as to call attention to defendant’s own failure
to testify.” United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980).
Finally, even if these questions did amount to indirect Griffin error, they do
not require reversal if they were harmless beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18, 24 (1967). This Court has held that a Griffin error “mandates
reversal only if: (1) the commentary is extensive; (2) an inference of guilt from
silence is stressed to the jury as a basis for the conviction; and (3) where there is
evidence that could have supported acquittal.” Jeffries v. Blodgett, 5 F.3d 1180, 1192
(9th Cir. 1993); see, e.g., Hovey v. Ayers, 458 F.3d 892, 912 (9th Cir. 2006) (holding
Griffin error was harmless where “the prosecutor’s inappropriate comments were
isolated statements” and “minimal in comparison with the weight of the evidence”).
The four isolated questions Luna challenges were raised only during an
authentication colloquy, were not reiterated during closing arguments, and were not
invoked as the basis for conviction. Any prejudicial effect created by these questions
was minimal and clearly outweighed by the substantial evidence of guilt on record.
Cf. United States v. Whitehead, 200 F.3d 634, 639 (9th Cir. 2000) (holding similar
evidence was “overwhelming” and “determinative”). Accordingly, any Griffin error
in this case was harmless.
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AFFIRMED.
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