United States v. Adam Gunderson

MEMORANDUM

Adam Gunderson appeals his conviction and sentence, following a jury trial, for two counts of transportation of undocumented aliens in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Gunderson was caught at a border patrol checkpoint with two undocumented alien men in his trunk. At trial, Gunder-son took the stand and denied that he was aware of the men before he was stopped at the checkpoint. On cross-examination, the government sought to impeach Gunderson by asking about his reaction — or lack thereof — when confronted with evidence of the two men. Following defense counsel’s objection that the government’s question was a comment on silence in violation of Gunderson’s Fifth Amendment rights, the district court struck the entire line of questioning and instructed the jury to disregard it. Gunderson contends that the striking of the testimony and admonishment did not cure prejudice that resulted from the questioning, and that the district court should have declared a mistrial.

We review de novo a claim that a defendant’s Fifth Amendment privilege was violated. United States v. Hernandez, 476 F.3d 791, 796…