Unpublished Disposition, 927 F.2d 610 (9th Cir. 1991)

MEMORANDUM^** 

Edward Manuel Crisostomo appeals from an opinion of the appellate division of the District Court of Guam, affirming his conviction on charges of theft and forgery. On appeal, Crisostomo contends that the prosecutor improperly commented on his failure to testify in violation of his fifth amendment privilege against self-incrimination.

During closing argument the prosecutor stated:

So on two of the checks, we have eyewitnesses. Eyewitnesses who have not been contradicted in any way....

Crisostomo argues that the jury could reasonably have inferred that this comment referred to Crisostomo's failure to testify in his own behalf.

The prosecution in a criminal case may not comment on the defendant's failure to testify. Griffin v. California, 380 U.S. 609, 615 (1965); United States v. Kessi, 868 F.2d 1097, 1106 (9th Cir. 1989). A defendant's fifth amendment privilege is violated if "the language used [in the prosecutor's closing argument] was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." Kessi, 868 F.2d at 1106 (quoting United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir. 1984)). A prosecutor may properly call attention to the defendant's failure to present exculpatory evidence, United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied 481 U.S. 1030 (1987), and may comment on the defendant's failure to counter or explain testimony presented or evidence introduced. Kessi, 868 F.2d at 1106.

" [O]ur Court has been reluctant to reverse where ... the prosecutorial comment was a single isolated statement, did not stress an inference of guilt from silence as a basis of conviction, and was followed by curative instructions." United States v. Soulard, 730 F.2d 1292, 1307 (9th Cir. 1984).

Here, the comment by the prosecutor did not directly or indirectly address Crisostomo's failure to testify. It is apparent from the excerpts of the trial testimony and the closing argument that the prosecutor was commenting on the defense's failure to rebut certain evidence, and not on Crisostomo's failure to testify. The single comment was isolated; there is no allegation that the prosecutor made any previous or subsequent comments related to this one in the presence of the jury.

Furthermore, even if the prosecutor's comment did violate Crisostomo's fifth amendment privilege, the jury instructions were adequate to cure any violation.¹ 

The prosecutor's comment was an isolated one which did not refer specifically to the defendant's failure to testify. There has been no violation of the defendant's fifth amendment privilege.

AFFIRMED.