U.S. v. Gentry

• Decision Date: 09 February 2009
• Docket Number: No. 07-3361.,07-3361.
• Citation: U.S. v. Gentry, 555 F.3d 659 (8th Cir. 2009)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Natasha L. GENTRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

555 F.3d 659

UNITED STATES of America, Plaintiff-Appellee, v. Natasha L. GENTRY, Defendant-Appellant.

No. 07-3361.

United States Court of Appeals, Eighth Circuit.

Submitted: April 17, 2008.

Filed: February 9, 2009.

Stephen C. Moss, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.

Charles E. Ambrose, Asst. U.S. Atty., Kansas City, MO, argued (John W. Wood, U.S. Atty., Amy B. Marcus, Asst. U.S. Atty., on the brief), for appellee.

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MELLOY, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Natasha Gentry was convicted of one count of possession with intent to distribute methamphetamine and one count of carrying a gun during a drug trafficking offense. On appeal she argues that the district court erred in allowing the government to elicit testimony concerning her post-arrest silence which violated her due process rights. She also argues that the government failed to produce evidence sufficient to support the verdict and that the court violated her substantive rights when it refused to give a jury instruction on the lesser included offense of simple possession of methamphetamine. We reverse and remand for a new trial.

On August 31, 2005, private security guards drove to an apartment building at 2732 Charlotte in Kansas City, Missouri to serve an eviction. When the security guards arrived, they saw a white Cadillac parked in the lot. One of the guards saw a man run away from the car. After the Cadillac left, the guards discovered a plastic baggie of methamphetamine on the ground where the car had been parked. When the Cadillac pulled back into the parking lot while the guards were waiting for police to arrive, the guards surrounded the car and ordered the driver, Natasha Gentry, to get out of the car. Police officers searched the car after they arrived and found various chemicals and equipment associated with the production of methamphetamine, including starter fluid, a funnel, coffee filters, rubber tubing, and ephedrine. The officers also discovered several firearms in the car and a glass pickle jar containing a cloudy white substance. The substance later tested positive for the presence of methamphetamine.

The jury convicted Gentry of aiding and abetting in the possession with intent to distribute 50 grams or more of methamphetamine, and of carrying a firearm in relation to a drug trafficking offense. The district court granted her motion for judgment of acquittal on one count of conspiracy in relation to the other offenses.

I.

Gentry was arrested at the scene and was taken to a police station. While she was in custody, a detective asked her a series of biographical question and gave her a Miranda¹ warning. Gentry invoked her right to counsel and chose to stop the questioning. At trial, Gentry's counsel objected to a line of questions during Gentry's cross-examination regarding her silence after being Mirandized. She argues that the evidence elicited of her post-Miranda-warning silence violated her due process rights and is reversible error. We review claims of constitutional error de novo. United States v. Washington, 318 F.3d 845, 854-55 (8th Cir.2003).

The record reveals that the prosecution made a number of inquiries and comments during Gentry's cross-examination regarding her post-arrest silence and request for counsel:

Q: Now, at that time [after being arrested] you didn't volunteer [to Detective Manley] that that baggie was — that didn't belong to you, did you?

A: No. But I don't believe he asked me. Basically he asked me [for biographical data]. And then he advised me that anything I say can and will be used against me in the court of law, and that I was being charged with the things found in that vehicle. At that point and time I remained quiet..

Q: But you didn't at that point volunteer, like you had previously to the security guards, that that wasn't your baggie or ... those weren't your drugs, that wasn't your car?

...

A: Like I had said, he had told me anything that I say to him can and will be used against me and at that point I remained quiet. I asked him, I believe, ... that I would like an attorney to be present with me before I speak.

...

Q: [O]nce this case was preparing for trial, ... was the first time that you told your defense attorney about the identity of Rocky Johnson,² isn't that right?

A: He was my attorney. Yes, ma'am.

Q: And you'd never told anyone else before about Rocky Johnson being present at the scene or anything like that up to that point, isn't that right?

...

Q: And you didn't say that later either when you were being treated politely and being asked for basic information. You didn't volunteer that at that time either, did you?

A: No, I didn't. But at that point he had let me know what my rights were and what would happen.

Q: And, in fact, Rocky Johnson's name didn't even come up until you had counsel and this case was being prepared for trial, isn't that right?

In its closing argument, the government again raised Gentry's post-arrest silence: "[I]f, as she said, she told the security guards initially that that wasn't her dope in the car, that that wasn't her stuff, why ... not later profess that to the officers at the scene or the detective? Why wait for a full year until this case is going to trial and deprive law enforcement of the ability to track down others who she says ... it's their dope ...?" (emphasis added).

In Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court held that it was a violation of due process to impeach a defendant with her post-arrest silence. In Doyle, after the defendants were arrested and Mirandized, they declined to give statements to the police. Id. at 612, 96 S.Ct. 2240. At trial the defendants testified that they had been framed, and on cross-examination the government asked the defendants about their failure to tell the police that they were framed when they were arrested. Id. at 613-14, 96 S.Ct. 2240. The Court held that silence after Miranda warnings was "insolubly ambiguous" because it may be induced by the warning itself: "[I]t would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 617-18, 96 S.Ct. 2240. See also Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986) ("[S]ilence does not mean only muteness; it includes the statement of a desire to remain silent, as well as of a desire to remain silent until an attorney has been consulted."); Fields v. Leapley, 30 F.3d 986, 990 (8th Cir.1994) (same).

In its brief, the government characterizes the cross-examination of Gentry as impeachment based on her prearrest silence and prior inconsistent statements. To the extent that the cross-examination addressed what Gentry told or did not tell the private security guards prior to her arrest, it was not a violation of due process. Under a generous view, the prosecutor's questions to Gentry about whether she ever told "anyone" certain pieces of exculpatory information, were intended to inquire into her prearrest silence.

However, the examination went further than this and inquired into Gentry's silence when she was interrogated by Detective Manley after her arrest. The government asked Gentry direct questions about her silence and elicited responses regarding her requests for counsel. The government cites Kibbe v. DuBois, 269 F.3d 26, 34 (1st Cir.2001), for the proposition that if a defendant claims to have told the police exculpatory information on arrest, she may be cross-examined on her silence. In Kibbe, the defendant claimed at trial to have told the police "all matters concerning the charge for which he was arrested." Id. at 31. Gentry did not claim at trial that she told the police about Rocky Johnson at the time of her arrest. Thus, her post-arrest silence was not a proper subject of examination.

At oral argument the government acknowledged that the line of questions regarding Gentry's post-arrest silence was in error but argued that it was not prejudicial. A Doyle violation is reversible error unless it is harmless beyond a reasonable doubt. See United States v. Martin, 391 F.3d 949, 955 (8th Cir.2004).

When analyzing whether Doyle violations are harmless beyond a reasonable doubt, this court examines (1) whether the government made repeated Doyle violations, (2) whether any curative effort was made by the trial court, (3) whether the defendant's exculpatory evidence is transparently frivolous, and (4) whether the other evidence of the defendant's guilt is otherwise overwhelming.

Fields v. Leapley, 30 F.3d 986, 991 (8th Cir.1994) (internal quotation marks omitted).

With regard to the first factor, repeated violations, we hold that there were at least five separate Doyle violations: Testimony was elicited regarding Gentry's request for an attorney after she was given Miranda warnings; Gentry was asked at least three times about her silence after the Miranda warnings; and, in closing, the government commented on Gentry's silence in her conversation with Detective Manley. The record suggests that cross-examination on Gentry's post-arrest silence made an impact on the jury. Following Gentry's examination, the jury asked her, "And what took you so long to get Rocky Johnson involved?"³ As to the second factor, no curative instruction was given; the court overruled the objections made by Gentry's counsel.

Third, the theory presented by the defense cannot be said to be "transparently frivolous." The defense argued at trial that the items seized from the car belonged to Rocky Johnson. This theory, which was supported by the testimony of several defense witnesses, was not directly contradicted by the testimony of any government witnesses. With respect to the fourth factor, the evidence of Gentry's guilt is not ...