Opinion
No. 07-30011.
Argued and Submitted November 7, 2007 Seattle, Washington.
November 28, 2007.
Appeal from the United States District Court for the Eastern District of Washington Alan A. McDonald, District Judge, Presiding, D.C. No. CR-06-02076-AAM.
Before: CANBY, GRABER, and GOULD, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Defendant Jose Martin Soto appeals his conviction for possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a), alleging errors in the jury instructions. We affirm.
1. The district court did not commit reversible error by declining to give a requested end-of-trial jury instruction that the jury could draw no adverse inference from Defendant's failure to testify. See United States v. Castaneda, 94 F.3d 592, 596 (9th Cir. 1996) (stating that de novo review applies). We previously rejected the argument that the failure to give a "no adverse inference" instruction constituted reversible error under identical relevant facts, id., and Defendant has not offered any meaningful distinction between this case andCastaneda. During voir dire in this case, the court did instruct the jury pool that, if Defendant exercised the right not to testify, the jury was forbidden to allow that choice to affect its decision.
We need not reach the government's alternative argument that the requested instruction was procedurally barred.
2. The district court did not plainly err when instructing the jury on the government's burden of proof. See United States v. Lopez, 477 F.3d 1110, 1113 (9th Cir.) (stating that plain error review applies when a defendant neither proposed nor objected to a jury instruction), cert. denied, 128 S. Ct. 131 (2007). "[T]aken as a whole, the instructions . . . correctly convey[ed] the concept of reasonable doubt to the jury," indeed emphasizing the proper burden of proof many times, and there is no "reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the requirements of due process." Ramirez v. Hatcher, 136 F.3d 1209, 1211 (9th Cir. 1998) (alterations and internal quotation marks omitted).