                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 07-30011
                Plaintiff-Appellee,           D.C. No.
               v.                        CR-06-02076-AAM
JOSE MARTIN SOTO,                           ORDER AND
             Defendant-Appellant.
                                             OPINION

       Appeal from the United States District Court
          for the Eastern District of Washington
       Alan A. McDonald, District Judge, Presiding

                Argued and Submitted
         November 7, 2007—Seattle, Washington

                   Filed March 19, 2008

    Before: William C. Canby, Jr., Susan P. Graber, and
            Ronald M. Gould, Circuit Judges.

                       Per Curiam;
               Concurrence by Judge Graber;
               Concurrence by Judge Gould




                           2609
                  UNITED STATES v. SOTO           2611


                      COUNSEL

Tracy A. Staab, Research & Writing Attorney, Federal
Defenders of Eastern Washington & Idaho, Spokane, Wash-
ington, for the defendant-appellant.
2612                UNITED STATES v. SOTO
Thomas J. Hanlon, Assistant United States Attorney, Yakima,
Washington, for the plaintiff-appellee.


                           ORDER

   The petition for panel rehearing is GRANTED. The memo-
randum disposition filed on November 28, 2007, is withdrawn
and the Clerk is ordered to file the attached opinion in its
place. New petitions for rehearing and petitions for rehearing
en banc may be filed.


                          OPINION

PER CURIAM:

   Defendant Jose Martin Soto appeals his conviction for pos-
session of methamphetamine with intent to distribute, 21
U.S.C. § 841(a). He argues that the district court violated Car-
ter v. Kentucky, 450 U.S. 288 (1981), and James v. Kentucky,
466 U.S. 341 (1984), by failing to give his requested instruc-
tion that the jury make no adverse inference from his constitu-
tionally protected choice not to testify. We hold that any error
was harmless beyond a reasonable doubt. We also reject
Defendant’s other challenge to the jury instructions. We
therefore affirm.

       FACTUAL AND PROCEDURAL HISTORY

   Police arrested Lenise Acevedo on drug charges. She
agreed to help them arrest several of her suppliers, including
Defendant. After a controlled sale of methamphetamine at
Defendant’s house, police obtained and executed a search
warrant. They arrested Defendant, who was asleep in bed, and
searched his house. That search uncovered drugs hidden in the
kitchen, in the bedroom where Defendant was sleeping, and
                     UNITED STATES v. SOTO                  2613
in a nearby bedroom; two scales commonly used by drug dis-
tributors in a kitchen drawer; and $537 in cash.

   Defendant was indicted on one count of distribution of
methamphetamine, 21 U.S.C. § 841(a), and one count of pos-
session of methamphetamine with intent to distribute, id. He
pleaded not guilty. In addition to the results of the search of
Defendant’s house, the primary evidence introduced by the
government in the three-day jury trial was the testimony of
Acevedo, who testified in exchange for a reduced sentence.

  In a pretrial conference on August 12, 2006, the district
court set a deadline of August 29—one week before trial—for
proposed jury instructions to be submitted in writing by both
parties. Neither party objected to the deadline or to the
requirement of written proposals. Only the government sub-
mitted proposed jury instructions in writing; Defendant did
not submit any proposed jury instructions, either orally or in
writing.

   At the close of trial and immediately before the parties’
closing arguments, Defendant’s counsel orally requested an
instruction that the jury should not “hold . . . against him” the
fact that Defendant had not testified. The court refused the
instruction because no timely written request had been made.

   After the parties gave their closing arguments, the court
instructed the jury. The court charged the jury to consider the
instructions “as a whole” and to presume Defendant’s inno-
cence, explained that the burden of proof beyond a reasonable
doubt rested with the government, and defined “reasonable
doubt.” The instructions also included this statement: “Your
sole interest is to seek the truth from the evidence in the case.
You’ve been chosen and sworn as jurors in this case to try the
issues of fact presented by the parties and determine the issue
of guilt or innocence.” The post-trial instructions did not
2614                      UNITED STATES v. SOTO
include a statement that the jury should draw no adverse infer-
ence from the Defendant’s failure to testify.1

   The jury convicted Defendant of possession, but acquitted
him of distribution. The lower end of the Sentencing Guide-
lines range was 188 months, but the district court imposed a
sentence of only 120 months—the statutory mandatory mini-
mum. 21 U.S.C. § 841(b)(1)(A). Defendant timely appeals his
conviction.

                     STANDARDS OF REVIEW

   We review de novo whether the district court committed
reversible error by refusing to instruct the jury that it should
draw no adverse inference from a defendant’s failure to tes-
tify. United States v. Castaneda, 94 F.3d 592, 596 (9th Cir.
1996).

  When a defendant fails to object at trial to jury instructions,
we review for plain error. Fed. R. Crim. P. 52(b); United
States v. Lopez, 477 F.3d 1110, 1113 (9th Cir.), cert. denied,
128 S. Ct. 131 (2007).
  1
   Pretrial, the court cautioned the jury pool:
      [Defendant’s] not required to take the stand himself. . . . If he
      calls no witnesses, doesn’t testify, . . . you’re to draw no adverse
      presumption from that fact. . . .
        ....
         He may not get on the stand for all kinds of reasons[,] . . .
      [many of which] don’t have anything really to do with this case.
      . . . You should simply remember that the burden lies over here
      [referring to the government].
                        UNITED STATES v. SOTO                        2615
                            DISCUSSION

  A.    “No Adverse Inference” Instruction

   [1] In Carter, 450 U.S. 288, the Supreme Court “held that
a trial judge must, if requested to do so, instruct the jury not
to draw an adverse inference from the defendant’s failure to
take the stand.” James, 466 U.S. at 342. The government
argues that harmless error analysis applies to Carter error and
that, even if the district court erred, any error was harmless
beyond a reasonable doubt. We agree.2

   [2] The Supreme Court has recognized that some errors—
known as structural errors—“defy analysis by harmless-error
standards because they affect the framework within which the
trial proceeds.” United States v. Gonzalez-Lopez, 126 S. Ct.
2557, 2564 (2006) (internal quotation marks and alteration
omitted); see generally Arizona v. Fulminante, 499 U.S. 279,
307-10 (1991) (dividing errors into “trial errors” and “struc-
tural errors”). “If the defendant had counsel and was tried by
an impartial adjudicator, there is a strong presumption that
any other constitutional errors that may have occurred are
subject to harmless-error analysis. Only in rare cases has [the
Supreme] Court held that an error is structural . . . .” Washing-
ton v. Recuenco, 126 S. Ct. 2546, 2551 (2006) (citations,
internal quotation marks, and alterations omitted). The Court
has expressly reserved the question whether harmless error
analysis applies to Carter error. James, 466 U.S. at 351; Car-
ter, 450 U.S. at 304.

   [3] We hold that failure to give a Carter instruction is not
a structural error, because it does not “affect the framework
within which the trial proceeds.” Gonzalez-Lopez, 126 S. Ct.
at 2564 (alteration omitted). The types of errors deemed struc-
  2
   We therefore need not reach the government’s alternative argument
that the district court did not err because it properly enforced the proce-
dural requirements of Federal Rule of Criminal Procedure 30(a).
2616                 UNITED STATES v. SOTO
tural are different in kind from a failure to give a Carter
instruction. See Recuenco, 126 S. Ct. at 2551 n.2 (cataloguing
structural errors: “complete denial of counsel,” “biased trial
judge,” “racial discrimination in selection of grand jury,” “de-
nial of self-representation at trial,” “denial of public trial,”
and “defective reasonable-doubt instruction”). The failure to
give a Carter instruction is more akin, for example, to the
failure of a trial judge to instruct the jury on an element of the
offense. See Neder v. United States, 527 U.S. 1, 9 (1999)
(holding that failure to instruct the jury on an element of the
offense is not structural error because it “does not necessarily
render a criminal trial fundamentally unfair or an unreliable
vehicle for determining guilt or innocence”). Moreover, a
Carter instruction is not required in every criminal trial; it is
merely available if a defendant so requests. Carter, 450 U.S.
at 305. We therefore join the only other circuit to have
addressed the question and hold that Carter error is subject to
harmless error analysis. See United States v. Brand, 80 F.3d
560, 568 (1st Cir. 1996) (holding that the “failure to give a
requested Carter instruction falls comfortably” in the cate-
gory of errors amenable to harmless-error analysis); see also
People v. Evans, 72 Cal. Rptr. 2d 543, 549-50 (Ct. App. 1998)
(reaching the same conclusion).

   [4] Here, assuming that the district court erred, its failure
to give a “no adverse inference” instruction was harmless
beyond a reasonable doubt. See Chapman v. California, 386
U.S. 18, 24 (1967) (stating the standard that, “before a federal
constitutional error can be held harmless, the court must be
able to declare a belief that it was harmless beyond a reason-
able doubt”). The evidence that Defendant distributed
methamphetamine was not particularly strong, but the jury
acquitted Defendant of that charge. The uncontradicted evi-
dence that Defendant possessed methamphetamine with intent
to distribute, by contrast, was overwhelming. See Brand, 80
F.3d at 568 (finding that any Carter error was harmless
beyond a reasonable doubt because the uncontradicted evi-
dence against the defendants was “overwhelming”).
                     UNITED STATES v. SOTO                   2617
   [5] When police executed the search warrant of Defen-
dant’s own home, Defendant was the only person there. The
police found methamphetamine hidden in the bedroom where
Defendant was sleeping, as well as in a nearby bedroom and
in the kitchen. They also found drug-weighing scales and a
substantial amount of cash. Because the evidence demon-
strated that Defendant was the sole occupant of his residence
and that drugs, cash, and scales were discovered in the resi-
dence, we hold that the district court’s failure to instruct the
jury not to draw any adverse inference from Defendant’s fail-
ure to testify was harmless beyond a reasonable doubt.

   Defendant asserts that the error cannot be harmless because
the question for the jury was one of credibility. Defendant’s
theory of the case was that Acevedo planted drugs in the
house before the controlled buy and before the execution of
the search warrant and then lied about it on the witness stand.
According to Defendant, the jury naturally would look to him
to dispel Acevedo’s account of the events, and the district
court’s failure to instruct on his silence therefore had an indis-
putable effect on the jury’s deliberations. We might be per-
suaded by Defendant’s argument were it not for the fact that
the jury acquitted him of distribution. Logically, on this
record, the jury rejected Acevedo’s testimony, which was the
only link to the distribution charge. That is, the jury’s deter-
mination on the possession count, which was supported
mainly by the physical evidence, did not turn on the question
of Acevedo’s credibility.

   We have addressed the question of reversible error in this
context once before. In Castaneda, 94 F.3d at 596, we
assessed similar facts and held that “[t]he district court did not
commit reversible error by rejecting Castaneda’s proposed
[Carter] instruction.” Castaneda is not a model of clarity, as
at least one court has observed. See Evans, 72 Cal. Rptr. 2d
at 546 (noting that “the opinion is not entirely clear as to the
grounds on which the court rested its decision”). Defendant
also contends that Castaneda was wrongly decided. But our
2618                      UNITED STATES v. SOTO
holding today rests on independent grounds that are different
from, but not inconsistent with, the reasons given in Cas-
taneda. We therefore need not address the correctness of Cas-
taneda nor, if we were to agree that Castaneda was wrongly
decided, request en banc rehearing. See Miller v. Gammie,
335 F.3d 889, 899 (9th Cir. 2003) (en banc) (holding that, in
the absence of an intervening Supreme Court decision, only
the en banc court may overrule a decision by a three-judge
panel).

  B. Jury Instructions on the Government’s Burden of
  Proof

   We hold that the district court did not err when instructing
the jury on the government’s burden of proof. See United
States v. Olano, 507 U.S. 725, 732 (1993) (holding that plain
error requires, first, that the district court erred).

   [6] “In evaluating the constitutionality of the jury charge,
we must determine whether there is a reasonable likelihood
that the jury understood the instructions to allow conviction
based on proof insufficient to meet the requirements of due
process.” Ramirez v. Hatcher, 136 F.3d 1209, 1211 (9th Cir.
1998) (internal quotation marks omitted). The challenged
instruction is not examined in isolation; “[r]ather, taken as a
whole, the instructions must correctly convey the concept of
reasonable doubt to the jury.” Id. (internal quotation marks
and alterations omitted).

   [7] Here, the district court repeatedly emphasized the gov-
ernment’s burden to prove all elements of the offense beyond
a reasonable doubt.3 In light of those clear jury instructions,
  3
   The district court’s charge included the following jury instructions:
      The burden is always upon the prosecution to prove guilt beyond
      a reasonable doubt. This burden never shifts to a defendant. . . .
         The test for conviction is proof beyond a reasonable doubt. It
      is not required that the government prove guilt beyond all possi-
                        UNITED STATES v. SOTO                            2619
we think that there is no likelihood that the jury understood
that any lower standard of proof could suffice. The district
court’s statement challenged by Defendant—“Your sole inter-
est is to seek the truth from the evidence in the case. You’ve
been chosen and sworn as jurors in this case to try the issues
of fact presented by the parties and determine the issue of
guilt or innocence”—is correct and does not contradict its
numerous instructions on the government’s burden of proof.

                            CONCLUSION

  Any error stemming from the district court’s failure to give
a Carter instruction was harmless beyond a reasonable doubt,

   ble doubt, but reasonable doubt. A reasonable doubt is a doubt
   based upon reason and common sense, the kind of doubt that
   would make a reasonable person hesitant to act. Proof beyond a
   reasonable doubt is proof that leaves you firmly convinced that
   the defendant is guilty. A reasonable doubt may arise not only
   from the evidence, but also from the lack of evidence.
      If after a careful and impartial consideration of all of the evi-
   dence, you are not convinced beyond a reasonable doubt that the
   defendant is guilty, it is your duty to find the defendant not
   guilty. On the other hand, if after a careful and impartial consid-
   eration of all the evidence, you are convinced beyond a reason-
   able doubt that the defendant is guilty, it’s your duty to find the
   defendant guilty.
      ....
     The defendant[’s plea of] “not guilty” . . . imposes on the gov-
   ernment the burden of establishing each of these elements by
   proof beyond a reasonable doubt.
      . . . It is sufficient if the evidence in the case establishes beyond
   a reasonable doubt that the offense was committed on a date rea-
   sonably near the date alleged.
     . . . [T]he government must prove each of the following ele-
   ments [on Count 1] beyond a reasonable doubt.
      ....
     . . . [T]he government must prove each of the following ele-
   ments [on Count 2] beyond a reasonable doubt.
(Emphases added.)
2620                UNITED STATES v. SOTO
and the district court properly instructed the jury on the gov-
ernment’s burden of proof.

  AFFIRMED.



GRABER, Circuit Judge, concurring:

    I write separately to address an additional, alternative
ground for affirmance not reached by the opinion: whether the
district court erred by enforcing the procedural requirements
of Federal Rule of Criminal Procedure 30(a). Op. at 2615 n.2.
In my view, the district court did not abuse its discretion when
it refused Defendant’s proposed instruction on the ground that
he had failed to make a “proper request” within the meaning
of Carter v. Kentucky, 450 U.S. 288, 305 (1981).

  Rule 30(a) of the Federal Rules of Criminal Procedure pro-
vides:

       Any party may request in writing that the court
    instruct the jury on the law as specified in the
    request. The request must be made at the close of the
    evidence or at any earlier time that the court reason-
    ably sets. When the request is made, the requesting
    party must furnish a copy to every other party.

Pursuant to Rule 30(a), the district court here set a deadline
of a week before trial for submission of proposed jury instruc-
tions in writing. Defendant did not object, and he has never
argued that the date or the requirement of written proposals
was unreasonable. Defendant submitted no written proposed
jury instructions at any time.

  At the close of evidence, the following colloquy occurred
between the judge and Defendant’s counsel:
                    UNITED STATES v. SOTO                      2621
       MR. SCOTT: Your Honor, the government has
    not proposed the instruction because the defendant,
    rather, has not testified. And I would ask that that —
    I believe that that is typically given, but that was not
    part of the proposed instructions, and I would just
    ask formally on the record that the court instruct the
    jury that they should not take that and hold that
    against him.

       THE COURT:        Counsel, I’m not going to do
    that.

       MR. SCOTT:      I understand.

       THE COURT: You had the opportunity to sub-
    mit instructions that you proposed. That’s what the
    rule [Rule 30 of the Federal Rules of Criminal Pro-
    cedure] requires. And the court would then have an
    opportunity to look at it in context and hear from the
    government concerning any objections it might have.
    I’m not going to make one up. I don’t think you need
    to be concerned. I really think that, from the instruc-
    tions the court proposes to give, that his constitu-
    tional rights are protected. And I spent a good deal
    of time talking to them about it when they were
    being selected.

      MR. SCOTT:         I think that you have, Your
    Honor.

       THE COURT: And I’m not going to deal with
    instructions unless they’re proposed to the court,
    provided according to the rules.

   In short, Defendant’s proposed jury instruction was both
untimely and in incorrect form. Citing the requirements of
Rule 30, the district judge rejected Defendant’s request. In my
view, the district court did not err.
2622                     UNITED STATES v. SOTO
   The bare failure to give a Carter instruction is not itself
error. It is only when the defendant makes a proper request
that the trial court is obliged to give the instruction. The ques-
tion, then, is whether the trial court constitutionally can
impose reasonable restrictions on the form and timing of that
request.1

   Both Carter and James v. Kentucky, 466 U.S. 341 (1984),
strongly suggest that the defendant’s right to a Carter instruc-
tion does not trump reasonable procedural rules. The Court in
Carter concluded:

         The freedom of a defendant in a criminal trial to
      remain silent unless he chooses to speak in the unfet-
      tered exercise of his own will is guaranteed by the
      Fifth Amendment and made applicable to state crim-
      inal proceedings through the Fourteenth. And the
      Constitution further guarantees that no adverse infer-
      ences are to be drawn from the exercise of that privi-
      lege. Just as adverse comment on a defendant’s
      silence cuts down on the privilege by making its
      assertion costly, the failure to limit the jurors’ specu-
      lation on the meaning of that silence, when the
      defendant makes a timely request that a prophylactic
      instruction be given, exacts an impermissible toll on
      the full and free exercise of the privilege. Accord-
      ingly, we hold that a state trial judge has the consti-
      tutional obligation, upon proper request, to
  1
    There is no doubt that the district court generally can impose such
restrictions. See Fed. R. Crim. P. 30(a); United States v. Cunningham, 194
F.3d 1186, 1200 (11th Cir. 1999) (affirming the district court’s denial of
a proposed instruction because it was not submitted in writing); United
States v. Johnson, 713 F.2d 633, 652-53 (11th Cir. 1983) (same: because
the request was untimely); United States v. Lustig, 555 F.2d 737, 750-51
(9th Cir. 1977) (holding that any jury instruction error by the district court
was “excusable in light of [the defendant’s] tardiness” in submitting jury
instructions after the close of evidence rather than five days before trial,
as required by local rule).
                       UNITED STATES v. SOTO                      2623
      minimize the danger that the jury will give evidenti-
      ary weight to a defendant’s failure to testify.

450 U.S. at 305 (citations and internal quotation marks omit-
ted) (emphases added). In James, the entire issue the Court
faced was whether the petitioner had procedurally defaulted
by requesting the instruction in incorrect form by using the
term “admonition” rather than “instruction.” 466 U.S. at 342.
Although the Court concluded that, under Kentucky law, the
procedural error was nonexistent, or slight at best, id. at 348-
49, its reasoning inescapably suggests that a more firmly
rooted and clear-cut procedural rule would have changed the
outcome.

   Admittedly, Carter and James were appeals from state
cases, and the issue was whether an independent and adequate
state ground barred the federal courts from considering the
constitutional claim. But if state courts are free to impose pro-
cedural requirements that defendants make a “proper request,”
Carter, 450 U.S. at 305, there is no principled reason why
federal courts could not do the same. In fact, the Federal
Rules of Criminal Procedure do impose certain requirements,
including that proposed instructions be submitted in timely
fashion and in writing. Fed. R. Crim. P. 30(a).

   Allowing district courts to impose reasonable procedural
restrictions on requests for jury instructions (including a Car-
ter instruction) makes sense. A contrary rule would mean that
the district court would be at the mercy of a defendant, no
matter when or how a request is made and no matter how rea-
sonable the court’s directions. Defendant here complains that
he did not submit the instruction because he was unsure
before trial whether he would testify. Although the applicabil-
ity of that argument in this particular case is doubtful,2 there
  2
   Defendant submitted no proposed jury instructions, so it is question-
able whether he truly mulled over the possibility of submitting this one
particular instruction.
2624                 UNITED STATES v. SOTO
still is no conflict with the district judge’s requirements:
Defendant clearly could have submitted a conditional jury
instruction, to be read if Defendant indeed invoked his right
not to testify.

   That reasonable restrictions may be imposed on the form
and timing of a defendant’s request for a Carter instruction
does not mean that district courts could reject reasonable
requests by a defendant. Here, however, the district court did
not abuse its discretion in rejecting Defendant’s request. The
request was untimely because it was made for the first time
several days after the deadline and at the end of a three-day
trial, and Defendant neither objected to the reasonableness of
the deadline nor requested an extension. The request was not
in the correct form because it was not submitted in writing.
Defendant did not ask for time to submit the request in writ-
ing. To the contrary, even though the judge asked both coun-
sel if they wished to proceed that afternoon or wait until the
next day, Defendant’s counsel responded that he wished to
proceed immediately. The request was not in the correct form
also because it was only a general request for the instruction,
not a succinct proposed instruction: “I would just ask formally
on the record that the court instruct the jury that they should
not take that and hold that against him.” The district court
explained its reasons for rejecting that request, and Defendant
acceded.

   I emphasize that a district court might well abuse its discre-
tion if it applied procedural requirements rigidly, even if the
requirements were consistent with Rule 30. A mere technical
failure or a slight untimeliness likely would not trump the
strong reasons behind the constitutional right to the Carter
instruction. But the several failures in this case and the wholly
reasonable approach and explanations by the district court
counsel against reversal.

  I acknowledge that the Fifth Circuit reached a different
conclusion in United States v. Eiland, 741 F.2d 738, 742 (5th
Cir. 1984):
                      UNITED STATES v. SOTO                    2625
        [Defendant’s] objection to the omission of this
     charge had the same effect as a valid request for the
     instruction. We have cautioned against blindly
     applying the procedures for requesting or objecting
     instructions so as to create a “trap for the unwary.”
     United States v. Davis, 583 F.2d 190, 195 (5th Cir.
     1978). Eiland’s objection and the court’s response
     . . . clearly preserved the defendant’s constitutional
     right to an instruction on his failure to testify.

(Footnote omitted.) But Eiland is factually distinguishable. In
that case, the district court’s only stated reason for not includ-
ing the instruction was that the court thought that the other
instructions were sufficient. See id. at 742 n.1 (“Well, I told
[the jury] several times that the defendant is not required to
prove his innocence, doesn’t have to produce any evidence at
all. I think that is sufficient.”). On that point, the district court
was wrong under Fifth Circuit precedent, and the Fifth Circuit
reversed on that ground. Id. at 743. It appears that the defen-
dant’s request in Eiland was timely and that the government
did not argue that the defendant had violated Rule 30’s
requirement that the proposed instruction be in writing. Here,
moreover, the district court clearly explained the required pro-
cedures, so there was no “trap for the unwary.”

   In conclusion, I agree fully with the opinion that any error
was harmless beyond a reasonable doubt. Additionally, the
district court did not abuse its discretion by refusing to give
Defendant’s proposed instruction that was untimely, not in
writing, not in precise form, and in violation of Rule 30(a).



GOULD, Circuit Judge, concurring:

   I join the per curiam opinion in full. Given the other evi-
dence of Soto’s guilt on the possession offense, and the fact
that he was acquitted on the distribution offense, the error
2626                     UNITED STATES v. SOTO
caused by the judge’s refusal to instruct the jury as Soto had
requested regarding Soto’s failure to testify was harmless
beyond a reasonable doubt. I write separately, however, to
state my view that the refusal of the district court to give such
an instruction when requested at trial was error, and that our
precedent of United States v. Castaneda, 94 F.3d 592 (9th Cir.
1996) which seems to reach a contrary conclusion,1 was
wrongly decided and, at an appropriate opportunity, should be
revisited through our en banc process.

   The Supreme Court has stated in no uncertain terms that
judges presiding over jury trials have a “constitutional obliga-
tion . . . to minimize the danger that the jury will give eviden-
tiary weight to a defendant’s failure to testify” and that they
are to discharge this obligation by instructing the jury, when
a defendant properly requests such an instruction, that the jury
may draw no adverse inference from the defendant’s decision
not to take the stand. See Carter v. Kentucky, 450 U.S. 288,
305 (1981); see also James v. Kentucky, 466 U.S. 341, 342
(1984) (reaffirming the Carter rule). While purporting to
acknowledge this Supreme Court authority, our opinion in
Castaneda effectively ignored it by holding that a model
Ninth Circuit jury instruction regarding the presumption of
   1
     It is unclear whether Castaneda held that the failure to give a “no
adverse inference” instruction was not error at all because the substance
of that proposed instruction was adequately covered by other instructions
that the jury was given, or whether the Castaneda court concluded that
there was error under Carter but that the error was harmless because the
judge made remarks during voir dire about the defendant’s right not to tes-
tify and cautioned that “if he exercises that right, you cannot allow that to
affect your determination of the issues.” See Castaneda, 94 F.3d at 596.
In my view, this confusion about the proposition for which Castaneda
actually stands is one of the chief problems with the opinion, but I believe
that either interpretation is inconsistent with the Supreme Court’s guid-
ance in Carter and James. Nothing in the Supreme Court’s precedents on
this issue suggests that the judge’s “constitutional obligation” to warn the
jury not to give evidentiary weight to the defendant’s failure to testify can
be met through statements made during voir dire rather than a formal jury
instruction, when requested, at the close of trial.
                     UNITED STATES v. SOTO                   2627
innocence and the government’s burden of proving guilt
beyond a reasonable doubt “sufficiently covered the substance
of Castaneda’s proposed instruction: the defendant’s failure to
testify does not lessen the government’s burden to prove its
case.” Castaneda, 94 F.3d at 596.

   In deciding Carter, however, the Supreme Court dismissed
an almost identical “presumption of innocence” jury instruc-
tion as “no substitute for the explicit instruction that the peti-
tioner’s lawyer requested.” Carter, 450 U.S. at 304. The
Court reasoned that while “the Fifth Amendment privilege
and the presumption of innocence are closely aligned[,] . . .
these principles serve different functions,” and so the explicit
“no adverse inference” instruction, when requested by a
defendant, is still required by the Fifth and Fourteenth
Amendments. See id. at 304-05. Thus, Castaneda represents
a mistake waiting to be corrected.

  I hope that when a proper occasion arises, a larger comple-
ment of our court’s judges will remedy the confusion caused
by Castaneda and bring this circuit’s jury instruction jurispru-
dence into complete harmony with the Supreme Court’s man-
date in Carter. Following the Supreme Court’s advice in
Carter will ensure fairness to those accused of crimes and
help to attain a superior criminal procedure.
