United States of America, Plaintiff-appellee, v. Javier Godinez, Defendant-appellant, 86 F.3d 1164 (9th Cir. 1996)

MEMORANDUM^* 

Javier Godinez appeals his conviction for possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). We have jurisdiction, 28 U.S.C. § 1291, and affirm.

Godinez argues that his due process rights were violated when the government cross-examined and referred in closing argument to his post-arrest, post-Miranda failure to state that he had been threatened and had carried heroin under duress. However, we have previously considered virtually identical situations, United States v. Makhlouta, 790 F.2d 1400 (9th Cir. 1986); United States v. Ochoa-Sanchez, 676 F.2d 1283 (9th Cir.), cert. denied, 459 U.S. 911 (1982), and held that the government's use of arguable inconsistencies, as here, does not run afoul of the defendant's rights under Doyle v. Ohio, 426 U.S. 610 (1976). In light of Makhlouta and Ochoa-Sanchez, Godinez's reliance on the Tenth Circuit's decision in United States v. Canterbury, 985 F.2d 483 (10th Cir. 1993) is misplaced.

AFFIRMED.