Macias-Curiel

MEMORANDUM *

Adrian Macias-Curiel (“Curiel”) appeals his jury conviction of, and Adrian Ivan Macias (“Macias”) appeals his conviction and sentence for, importation of marijuana and possession of marijuana with intent to distribute. See 21 U.S.C. §§ 841 , 952, 960. Curiel contends the district court improperly admitted testimony about prior incidents at the Calexico port of entry. Macias argues that (1) the government violated his Fifth Amendment rights by eliciting testimony about his post-Miranda silence; (2) the district court erred by denying his motion to sever his trial from that of Cu-riel; and (3) the district court erred when it denied him safety-valve relief from the statutory mandatory minimum sentence. *52 For the reasons discussed below, we affirm the district court.

We first address Curiel’s claim that the district court erred in allowing evidence of prior incidents in which he crossed the border in vehicles with empty, non-factory manufactured floor compartments. Evidence of prior bad acts may be admissible to provide “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed.R.Evid. 404(b). Here the court…

concurring in part and dissenting in part:

I concur in the majority disposition, except in its treatment of Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), which I believe the majority misapplies. Doyle held that “it would be fundamentally unfair and a deprivation of due process” to allow a Mirandized defendant’s silence at the time of arrest to be used to impeach his exculpatory testimony proffered for the first time at his criminal trial. 426 U.S. at 618 , 96 S.Ct. 2240 . Our decision in United States v. Caruto, 532 F.3d 822 (9th Cir.2008), which correctly applied Doyle , should control the outcome in this case.

In United States v. Caruto, defendant Elide Caruto was stopped at the Calexico, California port of entry when Customs and Border Protection officers discovered cocaine hidden in the gas tank of her truck. 532 F.3d at 824 . After Immigration and Customs Enforcement Special Agents read Caruto her Miranda rights, she signed a waiver and agreed to make a statement. Id. Five to seven minutes later, however, Caruto invoked her Miranda rights and interrogation stopped. Id.

At Caruto’s trial, Agent Matthew Kelley testified that defendant Caruto, during her…