United States v. Javier Godinez

86 F.3d 1164, 1996 U.S. App. LEXIS 41956, 1996 WL 279577

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 23, 1996
• Docket: 95-10343
• Status: Unpublished

Opinion

86 F.3d 1164

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Javier GODINEZ, Defendant-Appellant.

No. 95-10343.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 1996.
Decided May 23, 1996.

Before: ALARCON, BEEZER, and RYMER, Circuit Judges.

MEMORANDUM*

Javier Godinez appeals his conviction for possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction, 28 U.S.C. § 1291, and affirm.

Godinez argues that his due process rights were violated when the government cross-examined and referred in closing argument to his post-arrest, post-Miranda failure to state that he had been threatened and had carried heroin under duress. However, we have previously considered virtually identical situations, United States v. Makhlouta, 790 F.2d 1400 (9th Cir.1986); United States v. Ochoa-Sanchez, 676 F.2d 1283 (9th Cir.), cert. denied, 459 U.S. 911 (1982), and held that the government's use of arguable inconsistencies, as here, does not run afoul of the defendant's rights under Doyle v. Ohio, 426 U.S. 610 (1976). In light of Makhlouta and Ochoa-Sanchez, Godinez's reliance on the Tenth Circuit's decision in United States v. Canterbury, 985 F.2d 483 (10th Cir.1993) is misplaced.

AFFIRMED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3