Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1990)

MEMORANDUM^** 

Quintero timely appeals his convictions on several charges relating to the importation of 574 pounds of marijuana into the United States from Mexico. We have jurisdiction under 28 U.S.C. § 1291 (1988). We affirm.

FACTS

On February 3, 1990, Quintero and two others were arrested at the Shelter Island boat launch in San Diego, California, when San Diego police and United States Customs agents discovered 574 pounds of marijuana in the front compartment of the boat that Quintero and the other two individuals had just pulled out of the water. The indictment filed eleven days later charged Quintero and three co-defendants with conspiracy to import a controlled substance, 21 U.S.C. §§ 952, 960, & 963; importation of a controlled substance, 21 U.S.C. §§ 952 & 960; conspiracy to possess a controlled substance with intent to distribute, 21 U.S.C. §§ 841(a) (1) & 846; possession of a controlled substance with intent to distribute, 21 U.S.C. § 841(a) (1); and aiding and abetting, 18 U.S.C. § 2.

Unable to post his $150,000 bail, Quintero was held in the San Diego Municipal Correctional Center ("MCC") until trial. In preparation for trial, an investigator for the defense obtained civilian clothing for Quintero to wear at trial and delivered it to him at the MCC. On the morning of the first day of trial, defense counsel asked the district court to permit Quintero to change into a long-sleeved shirt, because the short-sleeved shirt provided to Quintero by the investigator would not cover tattoos on his forearms. Quintero believed that the tattoos would prejudice the jury against him. The district court asked the marshal if there was any objection to Quintero's request, and the marshal objected. The district court denied the request, noting the marshals' rule that the clothing had to be presented beforehand.

Later that day, defense counsel attempted to deliver the long-sleeved shirt to the MCC Watch Commander so that Quintero could wear it the second day of trial, when he planned to testify. The Watch Commander refused to accept the delivery, informing counsel that the clothing had to be presented at least 24 hours in advance.

At the start of the second day of trial, Quintero's defense counsel again asked that Quintero be permitted to don the long-sleeved shirt. The district court again asked whether the marshals objected, and the marshal did object. The court therefore denied the request, explaining:

We have certain rules. You're a competent lawyer, and if you want to do these things, you do them in line. Now, let's have the Defendant stand up. He's dressed in a sport shirt with a dark undercover, with jeans on. There's no indication that he's in custody from just looking at him there. He may have a couple of tatoos [sic] on his arm, but in this day and age, a tatoo doesn't mean much. And I'm sure the Government's (sic) not going to say, "You're guilty as charged because you have a tatoo on your arm." So I'm going to deny it.

Quintero took the stand that day in his short-sleeved shirt. The jury convicted him on all counts.

DISCUSSION

Quintero raises a single issue on appeal. He contends that the district court denied him his right to a fair trial when it prevented him from putting on the long-sleeved shirt and covering the allegedly prejudicial tattoos on his forearms. The question of whether his right to a fair trial was violated is a mixed question of law and fact that we review de novo. See Norris v. Risley, 878 F.2d 1178, 1181 (9th Cir. 1989).

Quintero relies principally on the Supreme Court's opinion in Estelle v. Williams, 425 U.S. 501 (1976), and a case from our circuit, Felts v. Estelle, 875 F.2d 785 (9th Cir. 1989). In Williams, the Supreme Court held that the government cannot require a defendant to go to trial in prison clothing because of the danger that it would prejudice the jury against the defendant and counter the presumption of innocence. 425 U.S. at 503-05. We reached the same result in Felts, where the police had lost an indigent defendant's clothing, leaving him no choice but to wear "prison garb" at his trial. 875 F.2d at 786; see also Bentley v. Crist, 469 F.2d 854, 856 (9th Cir. 1972) (" [C]ompelling the accused to wear prison clothing may deny to him the presumption of innocence.") (footnote omitted).

Williams and Felts cannot be stretched to cover Quintero's situation for two reasons. First, both cases involved defendants compelled by the state to wear prison clothing at their trials. Quintero had his own civilian clothing provided to him by his defense team. The only requirement imposed by the state was that the clothing be provided 24 hours in advance, a requirement that the defense satisfied when it initially delivered to Quintero the clothing that he wore at trial. Second, Williams and Felts rest on the concern that jurors will lose their ability to presume innocent a defendant who stands before them dressed in the clothing of a convict. See Williams, 425 U.S. at 504-05; Felts, 875 F.2d at 786. Civilian clothing, like that worn by Quintero, does not have that effect on a jury.

Quintero contends that juror prejudice arose from the tattoos on his forearms, which the government prevented him from covering with a long-sleeved shirt. Based on language in Felts, he argues that he was entitled to have "acceptable attire" and "suitable civilian clothes" for his trial. See Felts, 875 F.2d at 786. However, we employed those terms in addressing the claim of an indigent defendant to whom the government refused to provide any civilian clothing. We did not define the terms in Felts, see id. at 786 n. 4, nor did we indicate that clothing provided by the defendant's own defense team, as opposed to the government, must meet the same test of suitability to satisfy the right to a fair trial. Felts certainly does not suggest that civilian clothing provided to a defendant by his defense team is suitable only if it fully comports with the defendant's desires. We cannot say that the clothing provided to Quintero and worn by him at trial was unsuitable.¹ 

The district court refused to allow Quintero to don the long-sleeved shirt primarily because of the MCC rule that clothing for a defendant in custody must be provided at least 24 hours in advance. The asserted justification for this rule is a concern for security: the clothing must be searched thoroughly for contraband or weapons before it can be introduced into the MCC. This security concern represents a valid justification for the MCC policy. Quintero and his defense team followed the rule when they initially arranged for the delivery of civilian clothing. They subsequently failed to comply with the rule with regard to the long-sleeved shirt, and the district court did not act improperly in enforcing that rule by denying Quintero's requests at trial.² 

We also cannot say that the district court erred in concluding that there was little danger of prejudice. In assessing prejudice, we are required to determine

based on reason, principle, and common human experience whether the circumstances described by [Quintero] created an unacceptable risk of impermissible factors coming into play and were thus so inherently prejudicial as to pose an unacceptable threat to the defendant's right to a fair trial.

Norris, 878 F.2d at 1182 (internal quotations omitted). The circumstances that Quintero describes do not satisfy this test. While it is conceivable that a particular tattoo could create prejudice under certain circumstances, the record before us does not reflect what Quintero's tattoos depicted. We do not believe that all tattoos, as a general matter, create juror prejudice sufficient to violate a defendant's right to a fair trial. The district court did not err when it concluded that prejudice was unlikely in this case.

Quintero's convictions are AFFIRMED.