                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 6 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10414

                Plaintiff-Appellee,             D.C. No.
                                                4:15-cr-02319-CKJ-LCK-1
 v.

NESTOR GABRIEL PORTILLO-                        MEMORANDUM*
HENRIQUEZ,

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                     Argued and Submitted February 16, 2018
                            San Francisco, California

Before: SCHROEDER, TORRUELLA,** and RAWLINSON, Circuit Judges.

      On December 2, 2015, Border Patrol agents arrested defendant-appellant

Nestor Gabriel Portillo-Henriquez ("Portillo-Henriquez") in the Arizona desert upon

suspicion that he was transporting marijuana from Mexico to the United States.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Juan R. Torruella, United States Circuit Judge for the
First Circuit, sitting by designation.
After a trial, Portillo-Henriquez was convicted of possession with intent to distribute

and conspiracy to possess marijuana with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846.          Portillo-Henriquez appeals his

convictions on two grounds, which we address in turn. We affirm.

1.    Portillo-Henriquez first argues that it was plain error for a magistrate judge to

conduct voir dire at his trial without his express consent. Neither defense counsel

nor the government objected to the magistrate judge conducting the proceedings

during trial. When a defendant raises an issue on appeal that was not raised before

the district court, we review only for plain error. See Federal Rule of Criminal

Procedure 52(b); United States v. Olano, 507 U.S. 725, 730-37 (1993); United States

v. Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011). We find no plain error here.

      Portillo-Henriquez fails to carry his burden. Supreme Court precedent on this

issue makes clear that a magistrate judge has the authority to conduct voir dire

proceedings under 28 U.S.C. § 636(b)(3) if designated by a district judge and if

express consent is given by the defendant. United States v. Gonzalez, 553 U.S. 242,

250 (2008). The Supreme Court, though, has left open the question of whether

"consent may be inferred from a failure by a party and his or her attorney to object

to the presiding by a magistrate judge." Id., 553 U.S. at 253.

      In the absence of binding Supreme Court or Ninth Circuit precedent on this

matter, we conclude that even if there were error, it was certainly not plain. See


                                          2                                    16-10414
United States v. Thompson, 82 F.3d 849, 856 (9th Cir. 1996) (noting that error cannot

be plain when there is no controlling Supreme Court or Ninth Circuit precedent and

the other circuits are split).

       Therefore, Portillo-Henriquez has not demonstrated that the district court

plainly erred in taking his failure to object to the magistrate judge conducting voir

dire as implied consent.

2.     Portillo-Henriquez next argues that the district court abused its discretion by

instructing a witness to answer a juror's question when the witness appeared reluctant

to do so. He contends that under the circumstances, the witness felt compelled to

oblige, and that the jury would interpret the instruction as an indication of the judge's

bias. However, his argument ignores the context of the questioning and overlooks

the procedural protections that were in place. First, both defense counsel and the

government agreed that jury questions would be allowed. Second, defense counsel

was afforded the opportunity to re-cross examine the witness following this question,

during which counsel attempted to clarify the testimony. Third, there is no evidence

that the district judge having asked the question would indicate to the jury that the

judge was advocating on behalf of the government. In fact, the record demonstrates

that the judge read the juror question to the witness verbatim.

       It is settled law that "[a] federal trial judge . . . is more than a moderator or

umpire. He has the responsibility to preside in such a way as to promote a fair and


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expeditious development of the facts unencumbered by irrelevancies." United States

v. Harris, 501 F.2d 1, 10 (9th Cir. 1974) (quoting Smith v. United States, 305 F.2d

197, 205 (9th Cir. 1962)). As such, a district judge has discretion to allow jurors to

submit questions to witnesses. See United States v. Huebner, 48 F.3d 376, 382 (9th

Cir. 1994) (holding that a trial court may permit jurors to submit questions for

witnesses so long as the procedure for doing so is neutral and prejudice does not

result from any question asked).

      The district court did not abuse its discretion when it instructed the witness to

respond to the juror’s question. The record shows that proper procedures were in

place and, furthermore, we cannot conclude that the jury would have arrived at a

different outcome absent the instruction.

      AFFIRMED




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