United States v. Jesus Cervantes-Gonzalez & Humberto Alfonso Rivero-Toscano, 472 F.2d 611 (9th Cir. 1973). · Go Syfert
United States v. Jesus Cervantes-Gonzalez & Humberto Alfonso Rivero-Toscano, 472 F.2d 611 (9th Cir. 1973). Cases Citing This Book View Copy Cite
1 citation event across 1 distinct court.
Strongest positive: United States v. Jesus Enrique Munoz (87-2137), Paul Bailey (88-1009), Harout Aydinian (88-1095) (ca6, 1989-01-17)
Top citers, strongest first. 1 distinct citer. How cited ↗
discussed Cited as authority (rule) United States v. Jesus Enrique Munoz (87-2137), Paul Bailey (88-1009), Harout Aydinian (88-1095)
6th Cir. · 1989 · confidence medium
In a similar case, the Ninth Circuit held that: "Any semantic difference between "may" and "shall" in the context of the standard instruction in such cases could not affect the outcome of a trial, and clearly had no adverse affect upon appellants in this case." United States v. Cervantes-Gonzalez, 472 F.2d 611, 612 (9th Cir.1973). 25 Moreover, during voir dire the judge instructed the jury panel that: 26 The defendant has a right not to testify.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus CERVANTES-GONZALEZ and Humberto Alfonso Rivero-Toscano, Defendants-Appellants
72-2747.
Court of Appeals for the Ninth Circuit.
Jan 2, 1973.
472 F.2d 611
Manuel H. Garcia, Tucson, Ariz., for defendants-appellants., William C. Smitherman, U. S. Atty., Ann Bowen, W. Ronald Jennings, Asst. U. S. Attys., Tucson, Ariz., for plaintiff-appellee.
Trask, Goodwin, Wallace.
Cited by 1 opinion  |  Published
PER CURIAM:

Cervantes-Gonzalez and Rivero-Tos-cano challenge their respective convictions on four counts of aiding and abetting in the distribution of controlled substances.

The government’s evidence was sufficient to prove each of the alleged instances of incriminating conversations, payment, and delivery of the respective narcotics between the defendants and the government agents who testified. The testimony was, for the most part, uncontradicted, and the jury was entitled to believe it.

Appellants contend that the prosecutor made an improper comment on their failure to testify. The record reveals no such comment.

Appellants also seek to fault many of the court’s instructions. One such instruction correctly told the jury that no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of a defendant to testify. Any semantic difference between “may” and “shall” in the context of the standard instruction in such cases could not affect the outcome of a trial, and clearly had no adverse effect upon the appellants in this case. Counsel have expended commendable diligence in going over each of the instructions in a similar search for error, but have pointed to none that could have impaired the defense. The difficulty with the defense lay in the facts, not in the law.

Affirmed.