U.S. v. Padilla, No. 09-10451 (2-9-11) (McKeown with D. Nelson and Hug). A court has a constitutional obligation to give a "no-adverse-inference" instruction to the jury if the defendant exercises his right to remain silent. Carter v. Kentucky, 450 US 288 (1981). Is this obligation satisfied, in this instance, by a court's preliminary instruction to the jury? The 9th holds that it does, but makes clear that its decision is under the circumstances here. This appeal follows a retrial after a hung jury on drug conspiracy and importation charges. At the second trial, the defendant had submitted a Carter instruction for the final instructions. However, in the discussions and conferences at the end of the case, when the court said it would give the instructions it gave at the first trial, defense counsel had no objection. The Carter instruction was subsequently not given. It was given at the start of the case. The 9th, in considering the issue, noted that prior precedent in U.S. v .Castaneda, 94 F. 3d 592 (9th Cir. 1996), had deemed a "presumption of innocence" type instruction, given in voir dire, sufficient. However, another panel, U.S. v. Soto, 519 F.3d 927 (9th Cir. 2008), and specifically Gould in a concurrence, questioned the validity of Castenada. This panel here though, under these circumstances, found the instructions sufficient. The trial was short, and a Carter instruction was given as a preliminary instruction. Moreover, defense counsel did not object. Still, this is an issue that should be noted, and raised.