United States of America v. Santiago Contreras Orozco

Santiago Contreras Orozco was convicted of

manufacturing 1,000 or more marijuana plants, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), and 18 U.S.C. § 2, and

carrying a firearm during a drug trafficking crime, in

violation of 23 U.S.C. § 541(a)(1) and 18 U.S.C.

§ 924(c)(1)(A)(i). Orozco appeals his convictions,

challenging two rulings made by the district court. First, he

assigns error to the district court's denial of his motion for a

mistrial because a government witness testified that Orozco

was advised of "his right to a consulate.” Orozco, a citizen of

Mexico, argues that the consulate reference was "highly

prejudicial” because it amounted to a disclosure that he was

illegally in the United States. Second, Orozco claims that his

constitutional rights were violated when the district court

refused to reopen the evidence to allow him to testify—a

request Orozco made during the closing-argument phase of

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trial. Because Orozco fails to establish that either of the

district court's decisions was an abuse of discretion, we

affirm the judgment.

I

In late 2010, an elk hunter reported to the United States

Forest Service a potential marijuana grow in the Wenaha

Tucannon Wilderness in Eastern Washington. Delayed by

weather conditions, Forest Service agents investigated the

area in July 2011 and arrested Orozco, who was armed with

a loaded .380 caliber weapon. A search of the surrounding

area revealed marijuana plants and evidence linking Orozco

to the grow operation, including, two .380 caliber

ammunition clips, and a cell phone containing pictures of

marijuana plants and a phone call history showing that the

cell phone had been used to call members of Orozco's family.

Orozco was charged, and the case proceeded to trial. A

number of government witnesses testified, including Joseph

Helm, Chief Deputy of the Columbia County Sheriff's Office,

who testified about transferring Orozco from the marijuana

grow to the Columbia County Jail. Helm testified that he

spoke fluent Spanish, that he asked Orozco whether he spoke

English, and that after being informed that Orozco spoke only

Spanish, he read Orozco his Miranda rights in Spanish. After

a series of questions and answers describing the constitutional

guarantees provided by Miranda, Helm testified as follows:

I, with the assistance of Fish and Wildlife

Officer Ryan John, we took [Orozco] out of

the restraints that were currently on him, pat

searched him, put him in the restraints from

UNITED STATES V. OROZCO 5

. . . my department . . . for transport and I also

advised him of a right to a consulate.

After a brief sidebar, Orozco's trial counsel moved for a

mistrial, arguing that the deputy's testimony amounted to a

"disclosure that [Orozco] has illegal status.” The district

court disagreed. Denying the motion, the court reasoned:

I'm mindful that [consular notification] is

something that is done for people who speak

Spanish and in some occasions for, there's an

indication there's someone unlawfully in the

country. But just using the words, "also

advised him of a right to a consulate” doesn't

mean much. It doesn't carry much in the way

of information to, frankly, the average juror

and average person. . . .

* * *

It's a very small comment made in the

testimony. I'm not persuaded that it creates

prejudice that would require a mistrial. I

think that the defendant will continue to have

a fair trial.

Although neither party requested a curative instruction, the

court concluded that "the best remedy is no comment,” since

instructing the jury would be prejudicial to Orozco by

bringing the jurors' attention to something they probably did

not understand.

The trial continued, and the government concluded its

case-in-chief. Defense counsel requested a short recess to

UNITED 6 STATES V. OROZCO

meet with Orozco, and after doing so, informed the court that

Orozco had decided to exercise his right to remain silent and

would not testify. The defense then rested its case without

calling any witnesses. The parties finalized jury instructions,

and the government presented its closing argument to the

jury. Outside the presence of the jury, Orozco's counsel

informed the court that "after hearing [the government's]

closing, [Orozco] tells me he's changed his mind” about

testifying. The district court denied Orozco's request to

testify, reasoning that the jury had been instructed that trials

move in stages, and despite Orozco being given a fair chance

to testify during the evidence-gathering phase of trial, he had

chosen not to do so.

The jury found Orozco guilty on both counts. Orozco

filed a timely motion for a new trial based, in part, on the

allegation that Helm's consulate reference deprived him of a

fair trial. The court denied the motion. After finding that

Orozco was not competent for sentencing under 18 U.S.C.

§ 4244(d),1 entered a provisional sentence of life in prison

and remanded Orozco to the custody of the Attorney General

for treatment in a suitable facility. Orozco appeals.

II

Orozco argues that the district court erred by denying his

motion for a mistrial and his motion for a new trial under

Federal Rule of Criminal Procedure 33 because Helm's

reference to consular notification informed the jury that

1 At sentencing, the government stipulated that Orozco was not

competent for sentencing. Nothing in the record indicates that Orozco

was not competent to stand trial. When asked during oral argument,

Orozco's appellate counsel conceded this point.

UNITED STATES V. OROZCO 7

Orozco was illegally in the United States. We affirm because

the district court did not abuse its discretion in denying the

motions. See United States v. Allen, 341 F.3d 870, 891 (9th

Cir. 2003) (mistrial); United States v. Sarno, 73 F.3d 1470,

1507 (9th Cir. 1995) (motion for new trial).

Contrary to Orozco's contention, the deputy's single

reference to a consulate did not convey anything about

Orozco's legal status. It is unlikely that any juror divined

meaning from the brief reference to the right to a consulate.

In any event, because all foreign nationals, regardless of their

legal status, are entitled to consular notification, the

testimony conveyed only that Orozco was a citizen of another

country. See Vienna Convention on Consular Relations, art.

36, April 24, 1963, [1970], 21 U.S.T. 77, T.I.A.S. No. 6820;

see also 28 C.F.R. § 50.5. Moreover, we agree with the

district court that the testimony was a solitary,

inconsequential comment made during Helm's testimony.

Under the circumstances, the district court was well within its

broad discretion when it determined that Orozco had failed to

establish that a mistrial was warranted. See Renico v. Lett,

559 U.S. 766, 774 (2010) (noting that the "decision to declare

a mistrial is left to the sound discretion of the judge, but the

power ought to be used with the greatest caution, under

urgent circumstances, and for very plain and obvious causes.”

(citations and internal quotation marks omitted)).

In the summary of argument, Orozco "contends that he

did not receive a fair trial due to the introduction into

evidence of the issue of his illegal status in the United States,

and the lack of a curative instruction.” He does not further

discuss the failure to give a curative instruction, nor did he

request such an instruction at trial. Although we have no

obligation to address the failure to give a sua sponte curative

UNITED 8 STATES V. OROZCO

instruction, the argument is without merit in any event. See

Retlaw Broad. Co. v. N.L.R.B., 53 F.3d 1002, 1005 (9th Cir.

1995) (declining to address an argument "summarily

mentioned in [the] opening brief”). Helm's fleeting reference

to the right to a consulate was essentially meaningless.

Because a cautionary instruction would have needlessly

brought the jurors' attention to Helm's irrelevant testimony,

it was not an abuse of discretion for the district court to

continue the trial and forgo instructing the jury to disregard

the consulate reference. See United States v. McCown,

711 F.2d 1441, 1454 (9th Cir. 1983).

We likewise reject the argument that Helm's testimony

regarding the right to a consulate was undisclosed 404(b)

evidence because the testimony did not reveal anything, let

alone the defendant's status as illegally present in the United

States. The testimony was therefore not "[e]vidence of a

crime, wrong, or other act.” See Fed. R. Evid. 404(b).

III

Orozco next argues that his constitutional rights were

violated when the district court refused to reopen the

evidence to allow him to testify. We review de novo a

defendant's claim that he was deprived of his constitutional

right to testify, however, we review for an abuse of discretion

a district court's decision not to reopen evidence to permit a

defendant to testify. See United States v. Pino-Noriega,

189 F.3d 1089, 1094 (9th Cir. 1999). At oral argument,

counsel for Orozco urged us to adopt a broad categorical rule

that would permit a defendant to invoke his or her

constitutional right to testify at any time before the case is

turned over to the jury for deliberations. We decline the

invitation. Instead, we join our sister circuits in holding that

UNITED STATES V. OROZCO 9

a defendant must generally invoke the right to testify before

the close of evidence and we consider the following factors

(the "Walker factors”) to determine whether a district court

abused its discretion in denying a motion to reopen to allow

a defendant to testify: (1) the timeliness of the defendant's

motion, (2) the character of the proposed testimony, (3) the

disruptive effect of granting the motion, and (4) whether the

defendant offered a reasonable excuse for his or her untimely

request to testify. See United States v. Byrd, 403 F.3d 1278,

1284, 1287 (11th Cir. 2005) (citing United States v. Walker,

772 F.2d 1172, 1177 (5th Cir. 1985)); United States v.

Peterson, 233 F.3d 101, 106 (1st Cir. 2000).

"The right of an accused to testify in his own defense is

well established, and is a 'constitutional right of fundamental

dimension.'” Pino-Noriega, 189 F.3d at 1094 (quoting

United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)).

The right to testify, however, does not include an option to

listen to the prosecution's final argument and then engage in

a rebuttal argument. See Rock v. Arkansas, 483 U.S. 44, 55

(1987) (noting that the right to testify must, at times, "bow to

accommodate other legitimate interests in the criminal trial

process”) (quoting Chambers v. Mississippi, 410 U.S. 284,

295 (1987)); Pino-Noriega, 189 F.3d at 1095–96 (holding

that a defendant waives his right by failing "to assert his right

to testify before he discovers that the jury has returned a

guilty verdict”); Neuman v. Rivers, 125 F.3d 315, 318–19

(6th Cir. 1997) (holding that a defendant was not deprived of

his right to testify, but instead waived the right by waiting to

make the request to testify until just before jury instructions).

Indeed, procedural and evidentiary rules controlling the

presentation of evidence "do not offend the defendant's right

to testify” unless such rules are "arbitrary or disproportionate

to the purposes they are designed to serve.” See Rock,

UNITED 10 STATES V. OROZCO

483 U.S. at 55 & n.11, 56; see also Chambers, 410 U.S. at

302 ("In the exercise of this right, the accused, as is required

of the State, must comply with established rules of procedure

and evidence designed to assure both fairness and reliability

in the ascertainment of guilt and innocence.”).

Applying the Walker factors here, the district court did

not abuse its discretion by refusing to reopen the evidence to

allow Orozco's testimony. First, Orozco's motion to reopen

the evidence after the government's closing argument was

clearly untimely, although not as untimely as the request

made in Pino-Noriega, 189 F.3d at 1095 (after the jury had

reached but not yet delivered its verdict). Second, as to the

character of his proposed testimony, the record is silent.

While a defendant's first-hand account of the events leading

to his accusation has some inherent value, see Peterson,

233 F.3d at 107, Orozco did not explain what he hoped to say

or how he planned to bolster his defense. Third, granting

Orozco's untimely request to testify would likely have caused

at least some disruption to the trial process, but we have no

way of evaluating the extent of that disruption because

Orozco made no record concerning the character of his

proposed testimony. Finally, and perhaps most significantly,

Orozco failed to offer any excuse for his late request to

testify, let alone a reasonable one. As we have previously

held, a district court "may refuse to permit an accused to

reopen his case, and present additional evidence, where there

is insufficient reason for the accused's failure to offer

evidence at the proper time.” Kelm, 827 F.2d at 1323 (citing

United States v. Ramirez, 608 F.2d 1261, 1267 (9th Cir.

1979)).

A defendant seeking to testify after the close of proof is

best situated to make a record explaining the reasons

UNITED STATES V. OROZCO 11

justifying the untimely request to testify and the character of

his or her proposed testimony. Doing so enables the

government to better assess whether it will seek to introduce

rebuttal evidence, and in turn, allows the district court to

better assess the potential disruption the proposed testimony

will create. Considering each of the Walker factors in light of

the record in this case, we cannot say the district court abused

its discretion.

AFFIRMED