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NOT FOR PUBLICATION JUL 24 2018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 v. Anekwu, 695 F.3d 967 (9th Cir. 2012), where we held

that the district court did not abuse its discretion in refusing to ask questions about

potential racial bias during voir dire. Id. at 979–81. There, the defendant was a

Nigerian national accused of defrauding Americans. Id. at 971, 977–78. He

pointed to media reports and recent cases suggesting that Nigerians often

perpetrated the type of fraud he had been charged with committing. Id. We

nonetheless held that “this evidence does not prove that the population at large has

prejudice against Nigerians.” Id. at 980. Page 4 of 5

The same is true here. The fact that a successful presidential candidate made

derogatory remarks about Mexican immigrants during the campaign does not, on

its own, demonstrate that the population at large is prejudiced against such

individuals. And, as in Anekwu, see id. at 977, the jurors individually informed the

district court that they could be fair and impartial—here, these assurances were

given after the district court stressed that anyone who could not “fairly listen to the

facts” in “a criminal immigration case,” or whose “strong feelings” about

immigration prevented them from following the law, should not sit on the jury.

Without some affirmative indication that members of the jury pool might have

harbored prejudice against Mexican immigrants, this case cannot be distinguished

from our decision in Anekwu.

Moreover, injecting the subject of race into voir dire is far from costless.

Requiring the inquiry Garcia proposed would have risked “creat[ing] the

impression ‘that justice in a court of law may turn upon the pigmentation of skin

[or] the accident of birth,’” and the district court may have been “understandably

hesitant to introduce such a suggestion into [his] courtroom.” Rosales-Lopez, 451

U.S. at 190 (quoting Ristaino, 424 U.S. at 596 n.8). While it of course would have

been more pernicious to allow “persons entertaining a disqualifying prejudice” to

serve on the jury, Aldridge v. United States, 283 U.S. 308, 315 (1931), the district Page 5 of 5

court was in the better position to decide which was a greater risk here. See

Rosales-Lopez, 451 U.S. at 189 (“Because the obligation to impanel an impartial

jury lies in the first instance with the trial judge, and because he must rely largely

on his immediate perceptions, federal judges have been accorded ample discretion

in determining how best to conduct the voir dire.”).

Because the district court did not abuse its discretion in declining Garcia’s

voir dire requests, we affirm his conviction for illegal reentry. Other than the

supposed invalidity of his attempted illegal reentry conviction, Garcia did not raise

any grounds for challenging the revocation of his supervised release. We therefore

affirm the district court’s judgment revoking his supervised release as well.

AFFIRMED.

FILED

United States v. Garcia-Carillo, Nos. 17-50081, 17-50106

JUL 24 2018

WATFORD, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

A defendant in a federal criminal trial is entitled to ask prospective jurors

about potential racial or ethnic prejudice whenever there is a “reasonable

possibility” that such prejudice might influence a juror’s evaluation of the

evidence. Rosales-Lopez v. United States, 451 U.S. 182, 192 (1981) (plurality

opinion). The defendant in this case, Herminio Garcia-Carillo, is a Mexican

national who was charged with illegally re-entering the United States. He argues

that a reasonable possibility of racial or ethnic prejudice existed in his case because

his trial took place shortly after Donald Trump was elected president. Throughout

his campaign, then-candidate Trump made statements about immigrants from

Mexico that cast them in a negative light. To take one example, he stated the

following when launching his presidential bid: “When Mexico sends its people,

they’re not sending their best. They’re not sending you. They’re not sending you.

They’re sending people that have lots of problems, and they’re bringing those

problems with us. They’re bringing drugs. They’re bringing crime. They’re

rapists. And some, I assume, are good people.” Donald Trump Presidential

Campaign Announcement (C-SPAN broadcast June 16, 2015),

https://www.c-span.org/video/?326473-1/donald-trump-presidential-campaign-

announcement&start=670. Page 2 of 3 Could someone who shared similar views about immigrants from Mexico sit

as a fair and impartial juror in a case involving a Mexican national charged with

illegally re-entering the United States? Probably not. So Garcia-Carillo asked the

district court to inquire during voir dire whether any of the prospective jurors

would be biased against him because of his race or ethnicity. The district court

refused to do so. In my view, that refusal was an abuse of discretion.

The “reasonable possibility” standard is not difficult to meet. A defendant

just needs to show a rational basis for thinking that race or ethnicity might factor

into a prospective juror’s assessment of his guilt or innocence. Here, Garcia-

Carillo made that showing. He noted that the crime with which he was charged

required the government to prove that he is a Mexican national who re-entered the

United States illegally. His trial was set to take place on the heels of a divisive

national election in which the issue of illegal immigration—particularly from

Mexico—received significant attention. And, as noted, the winning candidate

espoused views of Mexican immigrants that, if shared by a prospective juror,

would likely be disqualifying, or at the very least relevant in deciding whether to

exercise a peremptory challenge. When a successful presidential candidate

embraces the view that immigrants from Mexico are rapists who bring crime and

drugs into the United States, is it irrational to think that one or more members of a Page 3 of 3 jury venire drawn shortly after the election might share similar views? Was it

irrational for Garcia-Carillo to be concerned that some prospective jurors might

view him through the lens of the stereotype embraced by then-candidate Trump?

Just last year, the Supreme Court reminded us that racial bias is “a familiar

and recurring evil” in our criminal justice system. Pena-Rodriguez v. Colorado,

137 S. Ct. 855, 868 (2017). One of the few ways to root out that evil is through

voir dire, when prospective jurors can be questioned about their ability to set aside

considerations of race or ethnicity. See id. Yes, posing such questions has the

unfortunate consequence of focusing prospective jurors’ attention on the

defendant’s status as a member of a racial or ethnic minority. But as the Court

noted in Aldridge v. United States, 283 U.S. 308 (1931), not permitting such

inquiry when the defendant reasonably requests it inflicts even greater harm on the

administration of justice, by allowing doubts to linger about whether “persons

entertaining a disqualifying prejudice were allowed to serve as jurors.” Id. at 315.

The district court failed in its duty to ensure that Garcia-Carillo was tried by

a fair and impartial jury, by refusing his request to ask a simple but vital question

during voir dire. I would reverse his conviction and remand for a new trial.