Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1016 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Carlos CASTRO-FIERRO, Defendant-Appellant.

No. 90-30319.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

Before JAMES R. BROWNING, GOODWIN and POOLE, Circuit Judges.


MEMORANDUM** 

Carlos Castro-Fierro appeals his sentence, imposed following a jury trial, for being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (1). Castro-Fierro contends that the district court erred by enhancing his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1), based in part on two prior burglary convictions that were constitutionally invalid because the prosecutor had improperly commented on the defendant's failure to testify.1  We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

A district court's application of the Armed Career Criminal Act is reviewed de novo. United States v. Chatman, 869 F.2d 525, 527 (9th Cir. 1989), abrogated on other grounds, Taylor v. United States, 110 S. Ct. 2143 (1990). The validity of a prior conviction is a mixed question of law and fact which we review de novo. United States v. Baker, 850 F.2d 1365, 1371 (9th Cir. 1988). We review de novo whether the prosecution impermissibly commented on a defendant's decision not to testify. United States v. Gray, 876 F.2d 1411, 1416 (9th Cir. 1989), cert. denied, 110 S. Ct. 2168 (1990). " [D]efendants may collaterally attack prior convictions when faced with a sentence enhancement statute." United States v. Clawson, 831 F.2d 909, 914 (9th Cir. 1987), cert. denied, 488 U.S. 923 (1988).

The prosecution may not comment on a defendant's decision not to testify. Id. However, prosecutorial comment on a defendant's failure to present exculpatory evidence is permissible if it does not focus attention on the defendant's failure to testify. United States v. Yu-Chong, 920 F.2d 594, 598 (9th Cir. 1990); see also Lincoln v. Sunn, 807 F.2d 805 (9th Cir. 1987); United States v. Lopez, 803 F.2d 969 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987).

Castro-Fierro contends that the government made improper references to his failure to testify on two separate occasions during his trial on the burglary charges. The first allegedly improper reference occurred during defense counsel's opening statement when the government objected to defense counsel's failure to state what, if any, evidence the defense was going to present during the case. The comments made by the government in open court were limited to an objection that the defense counsel was arguing against the government's evidence rather than stating what evidence the defense intended to present. The government's statement regarding whether Castro-Fierro was going to testify was made at a sidebar out of the hearing of the jury.2  There was no indication that the government's comments during defense counsel's opening statement were "of such a character that the jury would naturally and necessarily take it to be a comment on the [defendant's] failure to testify." See Gray, 876 F.2d at 1416.

Castro-Fierro contends that the Yakima prosecutor made further improper comments in his closing statements by repeatedly using the term "uncontested" when referring to the facts of the case. Unlike the situation in Lincoln, upon which Castro-Fierro relies, the prosecutor made no specific references to Castro-Fierro's failure to testify, nor was Castro-Fierro the only person who could have rebutted the government's evidence as to his means of supporting himself, the existence or extent of his heroin habit, or his presence in the motel. Cf. Lincoln, 807 F.2d at 810.3  The prosecutor in Castro-Fierro's Washington burglary convictions did no more than make permissible references to the defense's failure to present exculpatory evidence when remarking on the "uncontested" facts of the case. See Yu-Chong, 920 F.2d at 599; cf. Lincoln, 807 F.2d at 810.

Therefore, the Washington burglary convictions are valid and the district court did not err by enhancing Castro-Fierro's sentence under the Armed Career Criminal Act. See Baker, 850 F.2d at 1370-71.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The two prior convictions at issue here were alleged in paragraphs three and four of the enhancement information filed with the district court. The burglary cases were joined and tried together before a jury in the Superior Court of the State of Washington in and for Yakima County. On February 4, 1983, the jury returned guilty verdicts to both burglary charges

 2

During Castro-Fierro's opening statement, the government objected, arguing that Mr. Fessler, Castro-Fierro's counsel, was "arguing the status of the State's evidence rather than outlining that evidence he may wish to present in his own defense." The district court overruled the objection. The government renewed its objection later during Mr. Fessler's opening statement. At that point, the following interchange took place in open court:

PROSECUTOR: He has not said one word about the evidence he's going to present if he is.

THE COURT: I'm going to sustain the objection.

MR. FESSLER: [Completes his opening statement]

PROSECUTOR: Well, Your Honor, I think that the prosecutor has a right to determine whether or not the defense is going to be presenting evidence. I failed to hear any indication from Mr. Fessler that there is. And I would think that it would at least be a courtesy to me. And--But it is certainly his sworn duty to the jury to indicate the manner in which--of his defense if in fact any is going to be presented.

Subsequent argument regarding the objection took place at the bench, out of the jury's hearing.

 3

In Lincoln, the prosecutor repeatedly emphasized that the defendant was the only person who could have rebutted the evidence against him, utilizing such phrases as "there's only one person who can tell us," and "there is only one other person who can testify" in reference to evidence suggesting the defendant's guilt. Lincoln, 807 F.2d at 809 n. 1