U.S. v. Luna, 76-2326
| Citation | 539 F.2d 417 |
| Decision Date | 22 September 1976 |
| Docket Number | No. 76-2326,76-2326 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Augustin Gomez LUNA, Defendant-Appellant. Summary Calendar. * United States Court of Appeals, Fifth Circuit |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Roland E. Dahlin, II, Federal Public Defender, Karen K. Friedman, Asst. Federal Public Defender, Houston, Tex., Juan E. Gavito, Asst. Federal Public Defender, Brownsville, Tex., for defendant-appellant.
Edward B. McDonough, Jr., U. S. Atty., James R. Gough, George A. Kelt, Jr., John Patrick Smith, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before DYER, CLARK and HILL, Circuit Judges.
Augustin Gomez Luna was convicted by a jury of possession with intent to distribute approximately 304 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1), and he appeals.
In Doyle v. Ohio, 1976, --- U.S. ----, 96 S.Ct. 2240, 49 L.Ed.2d 91, the Supreme Court forbade usage of a defendant's silence following arrest and Miranda warnings to impeach an explanation subsequently given at the trial. In United States v. Harp, 536 F.2d 601 (5th Cir. 1976), we applied Doyle to use of silence in an impeaching fashion during the course of the government's closing argument. Accordingly, Luna's conviction must be reversed and a new trial held.
REVERSED AND REMANDED.
* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
1 The prosecutor's comment referred to Luna's silence after he had been arrested and warned as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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...inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous. See United States v. Luna, 539 F.2d 417 (5th Cir.1976); United States v. Harp, [536 F.2d 601 (5th Cir.1976) ]. "When the prosecutor does not directly tie the fact of [the] defendant'......
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