United States v. Orozco

Testimony that a government official had advised a defendant of a “right to consulate” does not necessarily indicate the defendant’s illegal status because all foreign nationals enjoy this right; additionally a defendant must generally invoke his right to testify prior to the close of evidence.

Defendant Orozco was convicted of manufacturing 1,000 or more marijuana plants and possessing a firearm during a drug trafficking crime. Orozco appealed, requesting a new trial. Orozco raises two issues on appeal. First, Orozco argues that a government witness’s testimony was prejudicial and warranted a mistrial. Chief Deputy Helm transferred Orozco to the local jail after Orozco was detained. Helm testified he spoke with Orozco in Spanish and that he advised Orozco of his right to a consulate. Orozco argued this statement was highly prejudicial as it was a disclosure that Orozco was in the country illegally. Orozco moved for mistrial. The district court denied Orozco’s motion, concluding that the solitary statement made by Helm only indicated that Orozco was a citizen of a foreign country not that he had illegal status. The Ninth Circuit held that testimony stating a government official had advised a defendant of a “right to consulate” does not indicate the defendant’s illegal status because all foreign nationals enjoy this right. Second, Orozco argues the district court erred by not reopening the evidence to allow him to testify. At the conclusion of the government’s case in chief, Orozco exercised his right to remain silent. After the government’s closing argument, Orozco moved to reopen the evidence to testify. The district court denied the motion because Orozco had been given a chance to testify, which he elected not to take, and the motion was made too late in the trial process. The panel held that a defendant must generally invoke his right to testify prior to the close of evidence. The panel found the district court did not abuse its discretion by denying Orozco’s motion for mistrial or by refusing to reopen the evidence at a late stage of trial. AFFIRMED.