FILED

NOT FOR PUBLICATION

DEC 17 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50159

Plaintiff-Appellee, D.C. No. 3:16-cr-01830-LAB-1

v.

MEMORANDUM*

NESTOR DAVID VASQUEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted November 16, 2018 Pasadena, California

Before: W. FLETCHER and PAEZ, Circuit Judges, and GLEASON,** District Judge.

Nestor Vasquez appeals his conviction for illegal entry after deportation in

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We

affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. Vasquez argues that the district court’s security measures — placing a Deputy

U.S. Marshal within ten feet of him while he testified and having the marshal escort

him back from the witness stand following his testimony — violated his due process

rights. We review the district court’s courtroom security decisions for abuse of

discretion. United States v. Shryock, 342 F.3d 948, 974 (9th Cir. 2003) (citing Wilson

v. McCarthy, 770 F.2d 1482, 1485 (9th Cir. 1985)). To determine whether courtroom

security measures violate a defendant’s right to a fair trial, reviewing courts must

“look at the scene presented to jurors and determine whether what they saw was so

inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair

trial.” Holbrook v. Flynn, 475 U.S. 560, 572 (1986). Even if the challenged security

measure is not inherently prejudicial, we must “consider[] whether the measures

actually prejudiced members of the jury.” Hayes v. Ayers, 632 F.3d 500, 522 (9th Cir.

2011) (citing Holbrook, 475 U.S. at 572). Neither security measure employed here

was inherently prejudicial, and there was no evidence showing actual prejudice.1

Vasquez also argues that the prosecutor at his trial improperly commented on

his post-arrest and pre- and post-Miranda silence. “We review de novo whether

references to a defendant’s silence violate the Fifth Amendment privilege against

1 Although we affirm the district court’s order here, we do not foreclose the possibility that similar courtroom security measures may well be prejudicial under other circumstances. 2 self-incrimination.” United States v. Bushyhead, 270 F.3d 905, 911 (9th Cir. 2001).

Prosecutors may not “impeach a defendant’s exculpatory story, told . . . at trial, by

cross-examining the defendant about his failure to have told the story after receiving

Miranda warnings at the time of his arrest.” Doyle v. Ohio, 426 U.S. 610, 611 (1976).

But where a defendant makes a post-arrest statement “that ‘may arguably be

inconsistent with the trial story,’ he has raised a question of credibility” and the

government “may probe all post-arrest statements and the surrounding circumstances

under which they were made, including defendant’s failure to provide critical

details.’” United States v. Makhlouta, 790 F.2d 1400, 1404 (9th Cir. 1986) (quoting

United States v. Ochoa-Sanchez, 676 F.2d 1283, 1286 (9th Cir.), cert. denied, 459

U.S. 911 (1982)). Prosecutors are also permitted to use pre-arrest silence to impeach

a criminal defendant’s credibility without violating the defendant’s self-incrimination

or due process rights. Jenkins v. Anderson, 447 U.S. 231, 239-40 (1980).

The prosecutor did not impermissibly comment on Vasquez’s silence at trial.

As permitted by Jenkins, the prosecutor used Vasquez’s pre-arrest, pre-Miranda

silence to impeach Vasquez’s credibility at trial. And the prosecutor’s comments on

Vasquez’s post-Miranda statement, pointing out its omission of details, permissibly

highlighted inconsistencies between Vasquez’s story at trial and his comments to

officers following his arrest and waiver of his Miranda rights.

3

AFFIRMED.

4