Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

MEMORANDUM^** 

Pascual Hernandez-Ramon appeals his conviction for illegal entry into the United States, in violation of 8 U.S.C. § 1325. The sole question is whether an improper comment by the prosecuting attorney was harmless error beyond a reasonable doubt. "The inquiry is whether allegedly improper behavior, considered in the context of the entire trial, including the conduct of the defense counsel, affected the jury's ability to judge the evidence fairly." United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986).

Defendant, who had previously been deported for illegal entry, took the stand at the present trial and told the jury he was born in Puerto Rico. The prosecutor produced very convincing evidence to the contrary: the last time Hernandez-Ramon was deported he claimed to be a native of Mexico, and the immigration officer who testified in this case knew Hernandez-Ramon from the previous deportation and knew that he claimed to be from Mexico. Defendant's answer to this was that he had lied when he told the Border Patrol agent he was Mexican, and that he had lied when he gave the Border Patrol the names of his father and mother in Mexico.

With all this evidence hammering down the credibility of the defendant, the prosecutor still thought it necessary to tell the jury they should be curious why Hernandez-Ramon did not produce a Puerto Rican birth certificate. Because a defendant has no duty to produce evidence, and because the burden of proof never shifts, the comment was a blunder. If the case were at all close, we might have to call it an unconstitutional shifting of the burden of proof as the appellant requests. On the whole record, however, the blunder was practically a textbook example of harmless error.

AFFIRMED.