NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 27 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10158

Plaintiff-Appellee, D.C. No. 4:14-cr-00526-DCB-DTF-2 v.

OSCAR LOPEZ-MAGALLON, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 17-10159

Plaintiff-Appellee, D.C. No. 4:16-cr-00960-DCB-DTF-1 v.

OSCAR LOPEZ-MAGALLON,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding

Argued and Submitted September 4, 2018 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BERZON and FRIEDLAND, Circuit Judges, and DOMINGUEZ,** District Judge.

Oscar Lopez-Magallon appeals from his conviction for illegal reentry, in

violation of 8 U.S.C. § 1326(a) and (b)(2), and the resulting revocation of his

supervised release.1 He now challenges the voluntariness of a factual stipulation to

the elements of the offense and a stipulation to the admission of a transcript

memorializing a pre-trial interview with the Government, specifically challenging

the admission of his own attorney’s statements in the transcript. Lopez-Magallon

further challenges the Government’s comments on and the inferences the district

court drew from his post-Miranda silence. The introduction of his attorney’s

statements violated Lopez-Magallon’s rights under the Sixth Amendment’s

Confrontation Clause, and the use of Lopez-Magallon’s post-Miranda silence

violated his Fifth Amendment rights. Because those errors cumulatively

prejudiced Lopez-Magallon’s duress defense, we reverse and remand to the district

court for further proceedings.

** The Honorable Daniel R. Dominguez, United States District Judge for the District of Puerto Rico, sitting by designation. 1 At the time of his arrest, Lopez was on supervised release in the District of Arizona for a 2014 federal conviction for possession with intent to distribute marijuana.

2 The admission of his attorney’s testimonial statements against him without

opportunity for cross-examination violated Lopez-Magallon’s right to

confrontation under the Sixth Amendment. See Crawford v. Washington, 541 U.S.

36 (2004). Lopez-Magallon’s stipulation to the admission of the interview

transcript did not waive his right to challenge the statements. Generally,

stipulations must be knowingly and voluntarily made. United States v. Ferreboeuf,

632 F.2d 832, 836 (9th Cir. 1980). Lopez-Magallon did not knowingly and

voluntarily stipulate to the introduction of his attorney’s statements as evidence

against him. Lopez-Magallon and his attorney were unaware that those statements

would be introduced as evidence, and, in fact, the attorney’s statements had never

been translated for Lopez-Magallon, which further suggests that they were viewed

as representational comments, not evidence.

In addition, the Government improperly invited adverse inferences from, and

the district court improperly drew such adverse inferences from, Lopez-Magallon’s

post-Miranda silence. Despite the Government’s attempts to distinguish it, we are

bound by Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the Court held that “it

would be fundamentally unfair and a deprivation of due process to allow the

arrested person’s silence to be used to impeach an explanation subsequently

offered at trial.” Id. at 618. Similarly, the Court in Doyle concluded that:

[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against

3 him, and that he may have an attorney if he wishes, it seems to [us] that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony . . . .

Id. at 619 (internal quotation marks and citation omitted).

“In deciding whether the combined effect of multiple errors prejudiced a

defendant we ask whether the errors stand in ‘unique symmetry . . . , such that

[they] amplify each other in relation to a key contested issue in the case.’” United

States v. Preston, 873 F.3d 829, 835 (9th Cir. 2017) (alterations in original)

(quoting Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011)). We may also

consider forfeited errors in deciding whether the cumulative effect of errors

“rendered [the] trial fundamentally unfair.” Id. at 839, 846. The attorney’s

statements and the Government’s argument regarding Lopez-Magallon’s post-

arrest silence addressed when and how Lopez-Magallon first told his story of

duress; the district court relied on both as key factors in its determination that

Lopez-Magallon lacked credibility. Given that the case turned on whether the

district court believed Lopez-Magallon’s duress defense and that both these errors

impacted that assessment, the conviction must be reversed and the case remanded

for a new trial.

If Lopez-Magallon decides on remand to exercise his right to a jury trial, the

case does not need to be reassigned to a different district court judge. But if

4 Lopez-Magallon decides to proceed again with a bench trial, we conclude that the

case should be reassigned to a new district court judge, because we expect the

original trial judge “would likely have substantial difficulty in putting out of his

mind” his previous reliance on Lopez-Magallon’s post-Miranda silence and his

attorney’s statements. United States v. Hanna, 49 F.3d 572, 578 (9th Cir. 1995).

REVERSED.2

2 Consistent with the instant disposition, the revocation of Lopez- Magallon’s supervised release is hereby REVERSED.

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