NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-50060 Plaintiff-Appellee, D.C. No. 3:19-cr-03707-BEN-1 v. JUAN VALDERAMA-MANCILLA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Argued and Submitted June 7, 2021 Pasadena, California Before: MURGUIA, BADE, and LEE, Circuit Judges. 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 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. removals. He also appeals the district court’s 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 prosecutor’s questions or comments that Valderama contests on appeal reference Valderama’s silence during Schwartz’s 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 prosecutor’s comments to refer to Valderama’s post- arrest silence. Cf. United States v. Baker, 999 F.2d 412, 415–16 (9th Cir. 1993). Because “[t]he use of a defendant’s 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 Valderama’s Doyle objections,1 any error was harmless beyond a reasonable doubt because there was additional evidence 1 Doyle v. Ohio, 426 U.S. 610, 618 (1976). 2 undermining Valderama’s arguments about his specific intent. See United States v. Bushyhead, 270 F.3d 905, 913 (9th Cir. 2001). 2. The prosecutor’s references to Valderama’s 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 Valderama’s 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 …
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