United States v. Orozco, No. 13-30199 (Goodwin with McKeown and Watford).
The Ninth Circuit affirms a marijuana manufacturing charge and use of a weapon in a drug trafficking offense. The court held that a brief mention of the defendant's right to consular access during the testimony of officers who were explaining how the Miranda warnings were read did not require a mistrial. The mention was fleeting and the testimony conveyed only that the defendant was a citizen of another country, not necessarily that he was present illegally in the United States (a crime for which he was not on trial). Nor was the district court required to give a curative instruction, because that would have needlessly emphasized this testimony. The court also held that the district court has discretion not to allow the defendant to testify at trial once the evidence has closed. Although a defendant generally does have a constitutional right to testify on his own behalf, he may not sit in silence as the government's case unfolds, listen to the prosecutor's closing argument, and only then decide that he wants to take the stand. Because the request came so late in the trial, the Ninth Circuit upheld the trial judge's decision not to reopen the evidence. The defendant never explained what his proposed testimony would contain or why he waited so long to decide to testify.