FILED NOT FOR PUBLICATION JUL 24 2018 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 17-50081 & 17-50106 Plaintiff - Appellee, D.C. Nos. 3:16-cr-02217-LAB-1 & 3:17-cr-07002-LAB-1 v. HERMINIO GARCIA-CARILLO MEMORANDUM* Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Larry Alan Burns, District Judge, Presiding Argued and Submitted July 10, 2018 Pasadena, California Before: FISHER,** WATFORD, and FRIEDLAND, Circuit Judges. Herminio Garcia-Carillo appeals from the district court’s judgments convicting him of attempted illegal reentry and revoking his term of supervised release imposed in an earlier case. We affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable D. Michael Fisher, Senior United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. Page 2 of 5 The district court did not abuse its discretion in rejecting Garcia’s proposed voir dire questions. The Constitution requires a court to pose questions concerning potential racial bias only when issues of race are “inextricably bound up with the conduct of the trial.” Rosales-Lopez v. United States, 451 U.S. 182, 189 (1981) (plurality opinion) (quoting Ristaino v. Ross, 424 U.S. 589, 597 (1976)); United States v. Sarkisian, 197 F.3d 966, 978–79 (9th Cir. 1999). That standard was met in Ham v. South Carolina, 409 U.S. 524 (1973), where the defendant was a locally prominent African-American civil rights activist who alleged that the police had targeted him because of his civil rights work. Id. at 525. In those circumstances, the Court concluded, issues of race would inevitably be front and center at trial. In Rosales-Lopez, by contrast, the Court held that “no ‘special circumstances’ of constitutional dimension” justified an inquiry into racial or ethnic prejudice, even though the defendant there was of Mexican descent and had been charged with participation in the illegal transportation of Mexican nationals into the United States. 451 U.S. at 192. This case is governed by Rosales-Lopez rather than Ham, because here, too, there are no special circumstances suggesting that racial issues would be “inextricably bound up with the conduct of the trial.” Id. at 189 (quoting Ristaino, 424 U.S. at 597). Page 3 of 5 Even under the more forgiving standard that applies under our supervisory power, the district court permissibly denied Garcia’s voir dire requests. See id. (recognizing the “broad role of the trial court” in conducting voir dire). To succeed under this standard, Garcia must establish that there was a “reasonable possibility” that racial or ethnic prejudice influenced the jury. Id. at 192; Sarkisian, 197 F.3d at 979. Garcia contends that this standard was met because his trial occurred shortly after the 2016 presidential election, and during the campaign leading up to the election the winning candidate was openly critical of Mexican immigrants. The circumstances Garcia relies on are not dramatically different from those present in United States ...
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