Argued and Submitted, Seattle, Washington: June 5,
Appeal from the United States District Court for the Eastern District of Washington. D.C. No. 2:11-cr-00150-FVS-1. Fred L. Van Sickle, Senior District Judge, Presiding.
Affirming convictions for manufacturing marijuana plants and carrying a firearm during a drug trafficking crime, the panel held that the district court did not abuse its discretion in denying the defendant's motion for a mistrial on the basis of a government witness's testimony, nor in refusing to reopen the evidence to allow the defendant to testify.
The panel held that the district court did not abuse its discretion in denying a mistrial and a new trial on the basis of testimony that the defendant was advised of " his right to a consulate." The panel concluded that this single reference did not convey anything about the defendant's legal status in the United States because all foreign nationals are entitled to consular notification.
The panel held that the district court did not abuse its discretion in refusing to reopen the evidence to allow the defendant to testify. Joining other circuits, the panel held that a defendant must generally invoke the right to testify before the close of evidence. The panel held that the following factors are considered to determine whether a district court abused its discretion in denying a motion to reopen to allow a defendant to testify: (1) the timeliness of the defendant's motion, (2) the character of the proposed testimony, (3) the disruptive effect of granting the motion, and (4) whether the defendant offered a reasonable excuse for his or her untimely request to testify.
Dan B. Johnson (argued), Spokane, Washington, for Defendant-Appellant.
Earl A. Hicks (argued), Assistant United States Attorney, Michael C. Ormsby, United States Attorney, Spokane, Washington, for Plaintiff-Appellee.
Before: Alfred T. Goodwin, M. Margaret McKeown, and Paul J. Watford, Circuit Judges. Opinion by Judge Goodwin.
GOODWIN, Circuit Judge:
Santiago Contreras Orozco was convicted of manufacturing 1,000 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(vii), and 18 U.S.C. § 2, and carrying a firearm during a drug trafficking crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c)(1)(A)(i). Orozco appeals his convictions, challenging two rulings made by the district court. First, he assigns error to the district court's denial of his motion for a mistrial because a government witness testified that Orozco was advised of " his right to a consulate." Orozco, a citizen of Mexico, argues that the consulate reference was " highly prejudicial" because it amounted to a disclosure that he was illegally in the ...