                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 30 2010

                                                                       MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50206

               Plaintiff - Appellee,             D.C. No. 3:08-CR-02348-WQH-1

  v.
                                                 MEMORANDUM *
ADAM GRANT GUNDERSON,

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Southern District of California
                     William Q. Hayes, District Judge, Presiding

                         Argued and Submitted March 1, 2010
                                Pasadena, California

Before:        CANBY and W. FLETCHER, Circuit Judges, and TUNHEIM,**
               District Judge.

       Adam Gunderson appeals his conviction and sentence, following a jury trial,

for two counts of transportation of undocumented aliens in violation of 8 U.S.C. §




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable John R. Tunheim, US District Judge for the District of
Minnesota, sitting by designation.
1324(a)(1)(A)(ii). We have jurisdiction pursuant to 28 U.S.C. § 1291 and we

affirm.

      Gunderson was caught at a border patrol checkpoint with two undocumented

alien men in his trunk. At trial, Gunderson took the stand and denied that he was

aware of the men before he was stopped at the checkpoint. On cross-examination,

the government sought to impeach Gunderson by asking about his reaction—or

lack thereof—when confronted with evidence of the two men. Following defense

counsel’s objection that the government’s question was a comment on silence in

violation of Gunderson’s Fifth Amendment rights, the district court struck the

entire line of questioning and instructed the jury to disregard it. Gunderson

contends that the striking of the testimony and admonishment did not cure

prejudice that resulted from the questioning, and that the district court should have

declared a mistrial.

      We review de novo a claim that a defendant’s Fifth Amendment privilege

was violated. United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007).

“Doyle error requires reversal unless the prosecution demonstrates, beyond a

reasonable doubt, that the error was harmless.” United States v. Caruto, 532 F.3d

822, 827 (9th Cir. 2008).




                                          2
      The government may use post-arrest, pre-Miranda silence for impeachment

purposes, but is prohibited from using post-arrest, post-Miranda silence at all, even

for impeachment. Caruto, 532 F.3d at 827; Hernandez, 476 F.3d at 796; United

States v. Velarde-Gomez, 269 F.3d 1023, 1032 (9th Cir. 2001) (en banc). The

record does not make entirely clear whether the alleged statement was made before

or after Gunderson received his Miranda warnings, or even whether the

government sought to comment on Gunderson’s statement or his silence. Even if

the government impermissibly commented on post-Miranda silence, however, the

court remedied the potential error by sustaining the contemporaneous objection,

instructing the jury to disregard the question, and giving appropriate jury

instructions. See United States v. Lopez, 500 F.3d 840, 846-47 (9th Cir. 2007).

Because the government’s brief comments were minimally harmful and

immediately remedied, they did not “so infect[] the trial with unfairness as to make

the resulting conviction a denial of due process.” Id. There was thus no Doyle

error. See id.

      During deliberations, the jury sent out a note requesting clarification as to

what testimony they should not consider. Gunderson contends that the note shows

that the jury was confused. The jury’s question, however, gave the district court




                                          3
the opportunity to clarify what evidence it had struck, and suggests only that the

jury endeavored to comply with its instructions.

      At sentencing, the district court denied Gunderson’s request for a two-level

downward adjustment in offense level for minor role. See U.S.S.G. § 3B1.2. The

district court reasoned that it lacked sufficient information about Gunderson’s role

in the offense and his relationship to others in the scheme to conclude that he

merited a reduction for minor role. Gunderson contends that the material

witnesses’ testimony at trial, indicating the involvement of multiple other

participants, supported the conclusion that Gunderson was a minor player in the

scheme. Gunderson further objects that the district court placed him in a catch-22

by requiring him to offer evidence of his exact role in the scheme and relationship

to the other participants in order to secure a minor role reduction; doing so, he

contends, would have been inconsistent with his position that he had no role in the

scheme at all.

      The defendant bears the burden of proving the applicability of a minor role

adjustment by a preponderance of the evidence. United States v. Davis, 36 F.3d

1424, 1436 (9th Cir. 1994). The district court’s task was to compare the

defendant’s conduct, including relevant conduct, to that of other co-participants in

the scheme. United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006). While


                                           4
the material witnesses’ testimony did indicate that other participants were

involved, the testimony did not detail the relationships between the various

participants or explain their relative roles in the scheme. There was no other trial

evidence of Gunderson’s role in relation to that of his co-participants, and

Gunderson did not introduce additional evidence of his role at sentencing.

Because Gunderson did not meet his burden, the district court did not clearly err in

concluding that, on the limited evidence before it, it could not determine the exact

nature of Gunderson’s role in the scheme relative to the other participants, and that

Gunderson was thus not entitled to a minor role reduction.

      AFFIRMED.




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