200 F.3d 634 (9th Cir. 2000), 99-50200, United States v. Whitehead

Docket Nº:99-50200
Citation:200 F.3d 634
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMOTHY JAMES WHITEHEAD, Defendant-Appellant.
Case Date:January 11, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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200 F.3d 634 (9th Cir. 2000)




No. 99-50200

United States Court of Appeals, Ninth Circuit

January 11, 2000

Argued and Submitted October 12, 1999

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[Copyrighted Material Omitted]

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Joseph J. Burghardt, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

John H. Gomez, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. OPINION

Appeal from the United States District Court for the Southern District of California; Thomas J. Whelan, District Judge, Presiding. D.C. No. CR-98-02091-TJW

Before: Sidney R. Thomas, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.

WARDLAW, Circuit Judge:

Timothy James Whitehead ("Whitehead") seeks reversal of his jury conviction for importation of marijuana, see 21 U.S.C. SS 952, 960 (1994), and importation of marijuana with intent to distribute, see id. S 841(a)(1), on the ground that the government infringed upon his Fifth Amendment right to remain silent. In particular, Whitehead contends that the district court erred in admitting evidence of his post-arrest, preMiranda silence during the government's case-in-chief, and that it further erred when it permitted the prosecutor to comment on this silence during closing argument. Whitehead also argues that the district court erred in failing to grant use immunity to his brother, proposed defense witness Jason Whitehead, and that the district court lacked jurisdiction because the 28 U.S.C. S 546(d) appointment of the United States Attorney for the Southern District of California violated the Appointments Clause of the Constitution, U.S. Const. art. II, S 2, cl. 2. We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm.


On June 8, 1998, at approximately 11:45 p.m., Whitehead attempted to enter the United States from Mexico at the Calexico, California Port of Entry. He drove a red 1988 Hyundai Excel to the border, and his 17-year-old brother Jason was his only passenger. Whitehead responded to questions from government officials at primary inspection and again at secondary inspection; however, after he was placed in custody, and before he received warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Whitehead remained silent.

As Whitehead drove up to primary inspection, INS Inspector Sean Hildenbrand noticed that "there was nothing in [Whitehead's car]. There was no clothing, soda can, et cetera. There wasn't any garbage or anything laying in the vehicle." When Whitehead complied with a request that he open the car's trunk, Inspector Hildenbrand discovered that it too was empty. Inspector Hildenbrand found it unusual that both the interior and trunk of Whitehead's vehicle were empty. Moreover, Whitehead appeared nervous, and when asked, Whitehead stated that he did not know who owned the Hyundai. Based on these factors, Inspector Hildenbrand referred Whitehead to the secondary inspection lot.

At secondary inspection, a narcotics-detector dog screened Whitehead's car and alerted to the rear of the vehicle. United States Customs Service Inspector Robert Garcia and another official then escorted Whitehead and his brother to the secondary office, placing the two in custody for the purposes of Miranda1. Once

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inside the office, Inspector Garcia frisked Whitehead and searched his wallet and shoes, but he did not find anything unusual. During this time, Whitehead did not speak.

Inspector Garcia next searched the Hyundai. Underneath the rear bumper, he found several brick-shaped packages wrapped in cellophane, and inside these packages, he discovered a green, leafy substance that field-tested positive for marijuana. Inspector Garcia immediately returned to the secondary office, had Whitehead and his brother remove their shoes and belts, and placed the two men in separate holding cells. Whitehead continued to remain silent.

Inspector Garcia then completed his search of Whitehead's vehicle, finding fifteen cellophane-wrapped packages concealed in the front and rear bumpers and rear doors. These packages contained 54.85 pounds of marijuana.

On July 8, 1988, the United States filed a two-count indictment against Whitehead in the Southern District of California. Count One charged importation of marijuana, in violation of 21 U.S.C. SS 952, 960. Count Two charged possession of marijuana with intent to distribute, in violation of 21 U.S.C. S 841(a)(1).

During trial, Whitehead subpoenaed his brother Jason to testify. After Jason first invoked his Fifth Amendment right not to testify, Whitehead requested that the district court order the government to grant use immunity to...

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