UNITED STATES v. VALDERAMA MANCILLA (2021)

United States Court of Appeals, Ninth Circuit.2021-06-22No. No. 20-50060

Summary · law.co

Holding. The court affirmed Valderama's conviction, rejecting his claims that prosecutorial misconduct and references to prior removals violated his rights and finding no error in the district court's denial of his motion to invalidate the underlying removal order.

Valderama was convicted by jury of attempting to enter and reenter the United States illegally. On appeal, he challenged the prosecutor's comments about his silence before arrest, arguing they violated his Fifth Amendment rights. He also objected to the prosecutor's references to his prior removals as improper character evidence and challenged the validity of his underlying 1998 removal order used to support the reentry charge.

The court found no Fifth Amendment violation because the prosecutor's comments addressed only Valderama's silence before his arrest and before he received Miranda warnings, which is permissible. The references to his prior removals were not improper propensity evidence because they were essential to proving his specific intent to enter the country unlawfully—a key element of the charged offenses. Additionally, Valderama could not invalidate his 1998 removal order because he failed to demonstrate he would have received a different outcome had any procedural defects been cured, given his extensive history of illegal entries and returns.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether prosecutor comments on pre-arrest silence violated Fifth Amendment privilege
Whether references to prior removals constituted improper propensity evidence
Whether the 1998 removal order could be invalidated under 8 U.S.C. § 1326(d) on due process grounds

Procedural posture

Valderama appealed his jury conviction for attempted illegal entry and attempted illegal reentry, challenging prosecutorial statements and the district court's denial of his motion to dismiss based on the underlying removal order's validity.

Authorities cited

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Opinion · public domain

MEMORANDUM *

Juan Valderama-Mancilla (“Valderama”) appeals his conviction following a jury trial for felony attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1) and attempted illegal reentry in violation of 8 U.S.C. § 1326(a). Valderama contends that the prosecutor improperly referred to his “post-arrest silence” at trial and urged the jury to draw propensity inferences from his prior illegal entries and removals. He also appeals the district courts denial of his motion under 8 U.S.C. § 1326(d) to dismiss the attempted reentry charge on the ground that the underlying removal order from 1998 was invalid. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. Valderama argues that the prosecutor improperly commented on his post-arrest silence in violation of his Fifth Amendment privilege against self-incrimination by referring to his failure to tell Border Patrol Agent Schwartz that he entered the United States for the purpose of receiving eye surgery in custody. But each of the prosecutors questions or comments that Valderama contests on appeal reference Valderamas silence during Schwartzs pre-arrest encounter with Valderama. Moreover, there is no mention in the trial record of any post-arrest interactions between Schwartz and Valderama from which the jury could have mistakenly understood the prosecutors comments to refer to Valderamas post-arrest silence. Cf. United States v. Baker, 999 F.2d 412, 415–16 (9th Cir. 1993). Because “[t]he use of a defendants pre-arrest, pre-Miranda silence is permissible as impeachment evidence and as evidence of substantive guilt,” there was no error. United States v. Beckman, 298 F.3d 788, 795 (9th Cir. 2002). And even if the district court erred in denying Valderamas Doyle objections,

any error was harmless beyond a reasonable doubt because there was additional evidence undermining Valderamas arguments about his specific intent. See United States v. Bushyhead, 270 F.3d 905, 913 (9th Cir. 2001).

2. The prosecutors references to Valderamas prior removals did not result in plain error. See United States v. Alcantara-Castillo, 788 F.3d 1186, 1190–91 (9th Cir. 2015). Not only is the evidence of Valderamas prior removals not improper propensity evidence under Federal Rule of Evidence 404(b) because the evidence forms “an essential element of the charged offense,” United States v. Martinez-Rodriguez, 472 F.3d 1087, 1089 (9th Cir. 2007), but the prior removals were also probative of his specific intent to enter free from official restraint—the main issue at trial, see United States v. Leos-Maldonado, 302 F.3d 1061, 1065 (9th Cir. 2002). See also United States v. McCollum, 732 F.2d 1419, 1424 (9th Cir. 1984) (“Such a prior act can be probative of intent because the fact that the defendant had an unlawful intent at the time he committed the extrinsic offense makes it less likely that he had a lawful intent when he performed the acts charged as the present offense.”). In any event, the prosecutors comments on Valderamas prior removals did not affect Valderamas “substantial rights” or the “fairness, integrity or public reputation” of the proceedings, especially considering the other evidence of Valderamas guilt. Leos-Maldonado, 302 F.3d at 1064–65 (citation omitted).

3. For the reasons above, reversal for cumulative error is also not warranted. See United States v. Fernandez, 388 F.3d 1199, 1256 (9th Cir. 2004).

4. The district court did not err in denying Valderamas motion to dismiss the attempted reentry charge pursuant to 8 U.S.C. § 1326(d) on the ground that the underlying removal order from 1998 was invalid. Even if Valderamas due process rights were violated by defects in the underlying removal proceeding,

which we do not decide, Valderama does not show that he suffered prejudice as a result of any defects because it is not “plausible” that an Immigration Judge “presented with all of the facts would exercise discretion in” Valderamas favor given his lengthy immigration history, demonstrated by his fifteen voluntary returns. United States v. Gonzalez-Flores, 804 F.3d 920, 927 (9th Cir. 2015) (citation omitted). Therefore, Valderama cannot establish that his 1998 removal order was “fundamentally unfair,” one of the three requirements a noncitizen must meet to challenge the validity of his removal order under 8 U.S.C. § 1326(d).

AFFIRMED.

FOOTNOTES

. Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

. We deny the governments motion to take judicial notice of and transmit the recording of the first half of the 1998 removal hearing filed at Dkt. 22.