United States of America v. Oscar Lopez-Magallon

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR LOPEZ-MAGALLON,
Defendant-Appellant.
No. 17-10158
D.C. No.
4:14-cr-00526-DCB-DTF-2
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR LOPEZ-MAGALLON,
Defendant-Appellant.
No. 17-10159
D.C. No.
4:16-cr-00960-DCB-DTF-1
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted September 4, 2018
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
SEP 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: BERZON and FRIEDLAND, Circuit Judges, and DOMINGUEZ,**
District Judge.
Oscar Lopez-Magallon appeals from his conviction for illegal reentry, in
violation of 8 U.S.C. § 1326(a) and (b)(2), and the resulting revocation of his
supervised release.1 He now challenges the voluntariness of a factual stipulation to
the elements of the offense and a stipulation to the admission of a transcript
memorializing a pre-trial interview with the Government, specifically challenging
the admission of his own attorney’s statements in the transcript. Lopez-Magallon
further challenges the Government’s comments on and the inferences the district
court drew from his post-Miranda silence. The introduction of his attorney’s
statements violated Lopez-Magallon’s rights under the Sixth Amendment’s
Confrontation Clause, and the use of Lopez-Magallon’s post-Miranda silence
violated his Fifth Amendment rights. Because those errors cumulatively
prejudiced Lopez-Magallon’s duress defense, we reverse and remand to the district
court for further proceedings.
** The Honorable Daniel R. Dominguez, United States District Judge for
the District of Puerto Rico, sitting by designation.
1 At the time of his arrest, Lopez was on supervised release in the District of
Arizona for a 2014 federal conviction for possession with intent to distribute
marijuana.

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The admission of his attorney’s testimonial statements against him without
opportunity for cross-examination violated Lopez-Magallon’s right to
confrontation under the Sixth Amendment. See Crawford v. Washington, 541 U.S.
36 (2004). Lopez-Magallon’s stipulation to the admission of the interview
transcript did not waive his right to challenge the statements. Generally,
stipulations must be knowingly and voluntarily made. United States v. Ferreboeuf,
632 F.2d 832, 836 (9th Cir. 1980). Lopez-Magallon did not knowingly and
voluntarily stipulate to the introduction of his attorney’s statements as evidence
against him. Lopez-Magallon and his attorney were unaware that those statements
would be introduced as evidence, and, in fact, the attorney’s statements had never
been translated for Lopez-Magallon, which further suggests that they were viewed
as representational comments, not evidence.
In addition, the Government improperly invited adverse inferences from, and
the district court improperly drew such adverse inferences from, Lopez-Magallon’s
post-Miranda silence. Despite the Government’s attempts to distinguish it, we are
bound by Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the Court held that “it
would be fundamentally unfair and a deprivation of due process to allow the
arrested person’s silence to be used to impeach an explanation subsequently
offered at trial.” Id. at 618. Similarly, the Court in Doyle concluded that:
[W]hen a person under arrest is informed, as Miranda requires,
that he may remain silent, that anything he says may be used against

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him, and that he may have an attorney if he wishes, it seems to [us]
that it does not comport with due process to permit the prosecution
during the trial to call attention to his silence at the time of arrest and
to insist that because he did not speak about the facts of the case at
that time, as he was told he need not do, an unfavorable inference
might be drawn as to the truth of his trial testimony . . . .
Id. at 619 (internal quotation marks and citation omitted).
“In deciding whether the combined effect of multiple errors prejudiced a
defendant we ask whether the errors stand in ‘unique symmetry . . . , such that
[they] amplify each other in relation to a key contested issue in the case.’” United
States v. Preston, 873 F.3d 829, 835 (9th Cir. 2017) (alterations in original)
(quoting Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011)). We may also
consider forfeited errors in deciding whether the cumulative effect of errors
“rendered [the] trial fundamentally unfair.” Id. at 839, 846. The attorney’s
statements and the Government’s argument regarding Lopez-Magallon’s post-
arrest silence addressed when and how Lopez-Magallon first told his story of
duress; the district court relied on both as key factors in its determination that
Lopez-Magallon lacked credibility. Given that the case turned on whether the
district court believed Lopez-Magallon’s duress defense and that both these errors
impacted that assessment, the conviction must be reversed and the case remanded
for a new trial.
If Lopez-Magallon decides on remand to exercise his right to a jury trial, the
case does not need to be reassigned to a different district court judge. But if

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Lopez-Magallon decides to proceed again with a bench trial, we conclude that the
case should be reassigned to a new district court judge, because we expect the
original trial judge “would likely have substantial difficulty in putting out of his
mind” his previous reliance on Lopez-Magallon’s post-Miranda silence and his
attorney’s statements. United States v. Hanna, 49 F.3d 572, 578 (9th Cir. 1995).
REVERSED.2
2 Consistent with the instant disposition, the revocation of Lopez-
Magallon’s supervised release is hereby REVERSED.

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