NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff

- Appellee,
v. HERMINIO GARCIA

- CARILLO Defendant

- Appellant. Nos. 17

- 50081 & 17

- 50106 D.C. Nos. 3:16

- cr - 02217

- LAB

- 1 & 3:17

- cr - 07002

- LAB

- 1
MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Larry Alan Burns, District Judge, Presiding Argued and Submitted July 10, 2018 Pas adena, California Before: FISHER, ** WATFORD, and FRIEDLAND, Circuit Judges. Herminio Garcia

- Carillo appeals from the district court’s judgments convicting him of attempted illegal reentry and revoking his term of supervised release imposed in an earli er case. We affirm.

* This disposition is not appropriate for pu blication and is not precedent except as provided by 9th Cir. R. 36

- 3. ** The Honorable D. Michael Fisher, Senior United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. 

# FILED
JUL 24 2018 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL SPage 2 of 5 The district court did not abuse its discretion in rejecting Garcia’s proposed voir dire questions. The Constitution requires a court to pose questions concerning potential racial bias only when issues of race are “inextricably bound up with the conduct of the trial.” Rosales

- Lopez v. United States , 451 U.S. 182, 189 (1981) (plurality opinion) (quoting Ristaino v. Ross , 424 U.S. 589, 597 (1976)); United States v. Sarkisian , 197 F.3d 966, 978

– 79 (9th Cir. 1999). That standard was met in Ham v. South Carolina , 409 U.S. 524 (1973), where the defendant was a locally prominent African

- American civil rights activist who alleged that the police had targeted him because of his civil rights work. Id. at 525. In those circumstances, the Cour t concluded, issues of race would inevitably be front and center at trial. In Rosales

- Lopez , by contrast, the Court held that “no ‘special circumstances’ of constitutional dimension” justified an inquiry into racial or ethnic prejudice, even though the de fendant there was of Mexican descent and had been charged with participation in the illegal transportation of Mexican nationals into the United States. 451 U.S. at 192. This case is governed by Rosales

- Lopez rather than Ham , because here, too, there are no special circumstances suggesting that racial issues would be “inextricably bound up with the conduct of the trial.” Id. at 189 (quoting Ristaino , 424 U.S . at 597)
.Page 3 of 5 Even under the more forgiving standard that applies under our supervisory power, the d istrict court permissibly denied Garcia’s voir dire requests. See id. ( recognizing the “broad role of the trial court” in conducting voir dire ). To succeed under this standard, Garcia must establish that there was a “reasonable possibility” that racial o r ethnic prejudice influenced the jury. Id. at 192; Sarkisian , 197 F.3d at 979. Garcia contends that this standard was met because his trial occurred shortly after the 2016 presidential election, and during the campaign leading up to the election the win ning candidate was openly critical of Mexican immigrants. The circumstances Garcia relies on are not dramatically different from those present in United States v. Anekwu , 695 F.3d 967 (9th Cir. 2012), where we held that the district court did not abuse it s discretion in refusing to ask questions about potential racial bias during voir dire
. Id. at 979

– 81. There, the defendant was a Nigerian national accused of defrauding Americans. Id. at 971, 977

– 78. He pointed to media reports and recent cases sugges ting that Nigerians often perpetrated the type of fraud he had been charged with committing. Id . We nonetheless held that “this evidence does not prove that the population at large has prejudice against Nigerians.” Id. at 980.Page 4 of 5 The same is true here. T he fact that a successful presidential candidate made derogatory remarks about Mexican immigrants during the campaign does not, on its own, demonstrate that the population at large is prejudiced against such individuals. And, as in Anekwu , see id. at 977, the jurors individually informed the district court that they could be fair and impartial

— here, these assurances were given after the district court stressed that anyone who could not “fairly listen to the facts” in “a criminal immigration case , ” or who se “strong feelings” about immigration prevented them from following the law, should not sit on the jury
. Without some affirmative indication that members of the jury pool might have harbored prejudice against Mexican immigrants, this case cannot be disting uished from our decision in Anekwu
. Moreover, injecting the subject of race into voir dire is far from cost less
. Requiring the inquiry Garcia propose d would have risked “ creat[ing] the impression ‘that justice in a court of law may turn upon the pigmen tation of skin [or] the accident of birth , ’” and the district court may have been “understandably hesitant to introduce such a suggestion into [his] courtroom.” Rosales

- Lopez , 451 U.S. at 190 (quoting Ristaino , 424 U.S. at 596 n.8). While it of course wo uld have be en more pernicious to allow “persons entertaining a disqualifying prejudice” to
serve on the jury, Aldridge v. United States , 283 U.S. 308, 315 (1931) , the districtPage 5 of 5
court was in the better position to decide which was a greater risk here
. See R osales

- Lopez , 451 U.S. at 189 (“Because the obligation to impanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determ ining how best to conduct the voir dire .”). Because the district court did not abuse its discretion in declining Garcia’s voir dire requests, we affirm his conviction for illegal reentry. Other than the supposed invalidity of his attempted illegal reen try conviction, Garcia did not raise any grounds for challenging the revocation of his supervised release. We therefore affirm the district court’s judgment revoking his supervised release as well. AFFIRMED.Unite d

State s v . Garc ia-C

arillo , Nos. 17-50081, 17-50106 W ATFOR D , C irc uit Judge , disse nting: A de fe nda

nt in a fe de ra l c rim ina l tria l is e ntitle d to a sk prospe c tive jurors
a bout pote ntia l ra c ia l or e thnic pre judic e whe ne ve r the re is a “ re a s ona ble possibility

” tha t suc h pre judic e m ight influe n c e a

juror’ s e va lua tion of the
e vide nc e . Rosale

s-Lope z v . Unite d State s , 451 U.S. 182, 192 (1981) (plura l ity opinion). The

de fe nda nt in this c a se , He rm inio Ga rc ia -C a rillo, is a M e xic a n
na tiona l who wa s c ha

rge d with ille ga lly

re -e n te ring the Unite d Sta te s. He a rgue s tha t a re a sona ble possibility

of ra c ia l or e thnic pre

judic e e xiste d in his c a s e be c a use his tria l took pla c e shortly a fte r Dona ld Trum

p wa s e le c te d

pre s ide nt. Throughout his c a m pa ign, the n-c a

ndida te Trum p m a d e sta

t e m e nts a bout im m igra nts from M e x ic o tha

t c a st the m

in a ne ga tive light. To ta

ke one e xa m

ple , he sta

te d the following whe n la

unc hing his pre side ntia l bid: “ W he n M e xic o se nds its pe ople , the y ’ re not se nding the ir be s t. The y ’ re not se n ding y ou. The y ’ re not se nding y ou. The y ’ re se n ding pe ople tha t ha ve lots of proble m s, a

n d the y ’ re bringing those proble m s with us. The y ’ re bringing drugs. The y ’ re bringing c rim e . The y ’ re
ra pists. And som

e , I a ssum e , a

re good pe ople .” Donald Trump Pre side n tial C ampaign Announc e me nt

(C -SPAN broa dc a st June 16, 2015), https://www.c -spa

n.org/vide o/? 326473-1/dona ld-trum p-pre side ntia l-c a m

p a igna nnounc e m e nt& sta

rt= 6 70. 

# FIL ED
JUL 24 2018 M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALSPa ge 2 of 3

C ould som e one who sha

re d sim ila r vie ws a bout im m igra nts from M e xic o sit
a s a fa ir a nd im pa rtia l juror in a

c a s e involving a

M e xic a n na tiona l c h a

rge d with ille g a lly re -e nte ring the Unite d Sta te s? Proba bly not. So Ga

rc i a -C a rillo a ske d the distric t c o urt to inquire

during v oir dire

whe the r a ny

of the prospe c tive jurors would be bia se d a ga inst him be c a use of his ra c e or e thnic ity . The distric t c ourt
re fuse d to do so. In m

y vie w, tha t re fusa l wa s a

n a buse of disc re tion. The “ re a sona

ble possibility

” sta nda rd is not diffic u lt to m e e t. A de fe nda n t just ne e ds to show a

ra t iona l ba sis for thinking tha t ra c e or e thnic ity

m ight fa c tor into a prospe c tive juror’ s a s se ssm e nt of his guilt or innoc e nc e . He re , Ga rc ia

C a rillo m a d e tha

t showing. He

note d tha t the c rim e with whic h he wa s c ha rge d
re quire d the gove rnm e nt to prove tha t he is a M e xic a n na tiona l who re -e nte re d the Unite d Sta te s ille ga lly . His tria l wa s se t to ta ke pla c e on the he e ls of a divisive
na tiona l e le c tion in whic h the issue of ille ga l im m igra tion—

pa rtic ula rly from M e x ic o—

re c e ive d signific a nt a

tte ntion. And, a s note d, the winning c a ndida te
e spouse d vie ws of M e x i c a n im

m igra nts tha t, if sha re d by a prospe c tive juror, would like ly

be disqua lify ing, or a

t the ve ry le a st re l e va

n t in de c i ding whe t

he r to
e xe rc ise a pe re m ptory c ha l l e nge . W he n a

suc c e s sful pre side ntia l c a ndida te
e m bra c e s the vie w tha

t im m igra nts from M e xic o a re ra pists who bring c rim e a nd drugs into the

Unite d Sta te s, is it irra

tiona l to think tha

t one or m ore m e m

be rs of aPa ge 3 of 3

jury ve nire dra wn shortly

a fte r the e le c tion m ight sha re sim ila r vie ws? W a s it irra tiona l for Ga

rc ia -C a rillo to be c onc e rne d tha t som e prospe c tive jurors m ight vie w him through the le ns of the ste re oty pe e m bra c e d by the n-c a ndida

t e Trum p? Just la st y e a r, the Supre m e C ourt re m inde d us tha t ra c ia l bia s is “ a fa m ilia

r
a nd re c urring e vil” in our c rim ina l justic e sy ste m . P e n a-Rodrigue z v . C olorado , 137 S. C t. 855, 868 (2017). One of the fe w wa

y s to root out tha

t e v il is through

v oir dire , whe n

prospe c tive jurors c a n be que stione d a bout the ir a

bility to se t a side
c onside ra tions of ra c e o r e thnic ity
. Se e id. Ye s, posing suc h que stions ha s the unfortuna te c onse q u e nc e of foc using prospe c tive jurors’ a tte ntion on the de fe nda n t’ s sta tus a s a m e m be r of a ra c ia l or e t

hnic m inority . B ut a s the C ourt note d in Aldridge

v . Unite d State

s , 283 U.S. 308 (1931), not pe rm itting suc h inquiry whe n the de fe nda

nt re a sona

bly re que sts it inflic ts e v e n

gre a te r ha rm

on the
a dm inistra

tion of justic e , by

a llowing doubts to linge

r a b out whe the r “ pe rsons
e nte rta ining a

disqua lify ing pre

judic e we re a l lowe d to se rve a s jurors.” Id. a t 315. The distric t c ourt fa ile d in its duty to e nsure tha t Ga rc ia -C a rillo wa s trie d by
a fa i r a nd im

pa rtia l jury , by

re fusing his re que s t to a s k a sim ple but vita l que stion during v oir dire . I would re ve rse his c onvic tion a nd re m a nd for a

ne w tria l.