                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 04 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10056

              Plaintiff-Appellee,                D.C. No. 5:13-cr-00619-EJD-1

 v.
                                                 MEMORANDUM*
HECTOR DAVID LOPEZ-BANUELOS,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Edward J. Davila, District Judge, Presiding

                        Argued and Submitted July 6, 2016
                            San Francisco, California

Before: SILVERMAN and NGUYEN, Circuit Judges, and GARBIS,** Senior
District Judge.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
      Hector David Lopez-Banuelos, while on probation, was subjected to a legal

search at his home, where drugs, drug paraphernalia, a loaded firearm, and

ammunition were found. At trial, a jury found him guilty on four counts of drug

and firearm violations. Lopez-Banuelos appeals his conviction and sentence. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      Lopez-Banuelos asserts that his Sixth Amendment rights were violated when

the district court refused to compel the government to grant use immunity to his

wife during the suppression hearing. A violation of the Sixth Amendment right to

make a defense is reviewed de novo. United States v. Stever, 603 F.3d 747, 752

(9th Cir. 2010). Whether a district court erred by refusing to compel the

government to grant immunity to a defense witness is a mixed question of law and

fact reviewed de novo, and the underlying factual findings are reviewed for clear

error. United States v. Wilkes, 662 F.3d 524, 532 (9th Cir. 2011).

      The executive branch has the sole authority and discretion to grant immunity

to a prospective defense witness. United States v. Straub, 538 F.3d 1147, 1156

(9th Cir. 2008). In Straub, we clarified the test for determining when due process

requires that the district court compel use immunity:

              [T]he defendant must show that: (1) the defense
             witness’s testimony was relevant; and (2) either (a) the
             prosecution intentionally caused the defense witness to


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               invoke the Fifth Amendment right against
               self-incrimination with the purpose of distorting the
               fact-finding process; or (b) the prosecution granted
               immunity to a government witness in order to obtain that
               witness’s testimony, but denied immunity to a defense
               witness whose testimony would have directly
               contradicted that of the government witness, with the
               effect of so distorting the fact-finding process that the
               defendant was denied his due process right to a
               fundamentally fair trial.

Id. at 1162.

      Lopez-Banuelos has not provided a proffer of the testimony he wished to

have immunized and, therefore, has not shown that the testimony was relevant.

Even assuming that the testimony would have been relevant and supportive of the

defense on the suppression issue, Lopez-Banuelos has not shown a violation of his

Constitutional rights. There has been no showing that the government

intentionally caused the witness to invoke the Fifth Amendment or selectively

denied immunity. Nor has there been a showing of any extraordinary

circumstances raising fairness concerns regarding the prosecution’s exercise of

discretion.

      Lopez-Banuelos contends that the district court erred in its statement of the

case provided at the commencement of voir dire. Since trial counsel did not raise

these objections to the district court’s statement, we review the matter for plain



                                           3
error. See United States v. Mitchell, 502 F.3d 931, 955 (9th Cir. 2007). However,

we find no error. The district court did not inform the potential jurors of any

prejudicial information, cf. Scott v. Lawrence, 36 F.3d 871, 874 (9th Cir. 1994),

and properly instructed the selected jury that it must ultimately decide all questions

of fact, see United States v. Sanchez-Lopez, 879 F.2d 541, 553 (9th Cir. 1989).

      Finally, Lopez-Banuelos contends that the jury instructions were inadequate

to enable him to present his theory of defense. “We review whether a trial court’s

instructions adequately covered a defendant’s proffered defense de novo, and

review a district court’s formulation of jury instructions for an abuse of discretion.”

United States v. Morsette, 622 F.3d 1200, 1201 (9th Cir. 2010) (per curiam)

(quoting United States v. Chastain, 84 F.3d 321, 323 (9th Cir. 1996)). The

instruction given was consistent with binding precedent on possession of a firearm

in furtherance of a drug trafficking offense and adequately covered the elements of

the offense. Perhaps the instruction could have been improved by providing

further definition of “in furtherance,” using wording from the defense instruction.

However, “[t]he trial court has substantial latitude so long as its instructions fairly

and adequately cover the issues presented.” United States v. Hicks, 217 F.3d 1038,

1045 (9th Cir. 2000) (citation omitted). Lopez-Banuelos “is not entitled to an

instruction with wording of his own choosing.” United States v. Hofus, 598 F.3d


                                            4
1171, 1174 (9th Cir. 2010) (citation omitted). The trial court instruction did not

interfere with the ability of Lopez- Banuelos to present his theory of the case, and

there was ample evidence for the jury to convict.

      AFFIRMED.




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