The Ninth Circuit Court of Appeals today released an opinion in USA v. LOPEZ, No. 05-50433, a criminal appeal. The panel consisted of Susan P. Graber, Kim McLane Wardlaw, and Johnnie B. Rawlinson, Circuit Judges.
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 assertions of error is meritorious, we affirm the conviction and sentence. 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 a deported alien found in the United States in violation of 8 U.S.C. Â§ 1326. At trial, Lopez took the stand and asserted a duress defense. Lopez testified that he entered the United States, hoping to get . . .
The opinion filed on November 30, 2006 is amended as follows: 1. Slip Opinion page 18874, Section II.A. -change the second sentence to read: “Lopez does not challenge all of the prosecutor’s comments regarding his silence, as he rightfully concedes that it was appropriate to question or comment on Mr. Lopez’s pre-arrest failure to offer his duress explanation. . . .
WARDLAW, Circuit Judge, concurring in part and concurring in the judgment:
I concur in the judgment and in Parts I, II-A, II-B and IIC(i) of the majority opinion. I disagree with the majority that Lopez’s testimony can be fairly characterized as an admission . . .