U.S. v. Lopez
| Decision Date | 30 November 2006 |
| Docket Number | No. 05-50433.,05-50433. |
| Citation | 469 F.3d 1241 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jorge Enrique LOPEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Chase Scolnick, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.
Timothy F. Salel, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CR-04-02506-NAJ.
Before: GRABER, WARDLAW, and RAWLINSON, Circuit Judges.
In this appeal, we must decide whether the government's impermissible references to Appellant Jorge Enrique Lopez's post-Miranda silence mandate reversal of his conviction. Because we conclude that any error was harmless beyond a reasonable doubt and, because none of Lopez's other assertions of error is meritorious, we affirm the conviction and sentence.
On September 17, 2004, Lopez entered the United States and was arrested by a United States Border Patrol Senior Patrol Agent and transported to a Border Patrol Station, where he was processed. Subsequently, Lopez was indicted for being a deported alien found in the United States in violation of 8 U.S.C. § 1326.
At trial, Lopez took the stand and asserted a duress defense. Lopez testified that he entered the United States, hoping to get arrested and avoid being harmed by a drug dealer. During cross-examination, Lopez was questioned about whether he related the harm that he faced to any of the various people with whom he came into contact before he was transported to the Border Patrol Station. Lopez admitted that he did not tell anyone about the threats. The prosecutor also questioned Lopez about what he told the agents at the Border Patrol Station, where Lopez was processed and given his constitutionally mandated Miranda warning by Agent Michael Harrington (Harrington). The relevant portion of the line of questioning began as follows:
Q. You never told any of the border patrol agents about any threats that occurred to you in Mexico, did you?
A. No, sir.
Q. You never told any of the border patrol agents who were there about any guys with knives who were chasing you, did you?
A. No, sir.
Q. You didn't tell any of them about anything about being scared, running for your life into the United States, did you?
A. No, sir.
Q. You didn't tell [Harrington] about,[sic] "I am actually scared because I was running from a guy who tried to kill me." You never told him that, did you?
A. No, sir.
(Emphasis added).
Lopez objected to this series of questions. The district court overruled the objection on the basis that the questions were in reference to Lopez's pre-Miranda processing.
The prosecutor began his closing argument by noting that while Lopez was at the port of entry, he failed to "indicate to anyone whatsoever that he feared for his life" and reiterated that "there was no person that [Lopez] went to and explained the circumstances." During rebuttal, the prosecutor stated that "[Lopez] was hanging out near to [the] port of entry; [sic] did not tell any of the agents, any of the immigration officers, any of the customs officials, anybody, that he had been threatened whatsoever."
Lopez was convicted and sentenced to thirty months' imprisonment.
According to Lopez, the Government violated his Fifth Amendment right to remain silent by impermissibly commenting on his post-arrest silence. Lopez does not challenge all of the prosecutor's comments regarding his silence, as he rightfully concedes "that the only appropriate context to question or comment on Mr. Lopez's failure to explain his duress was pre-arrest." United States v. Beckman, 298 F.3d 788, 795 (9th Cir.2002). "We review de novo whether references to a defendant's silence violate his Fifth Amendment privilege against self-incrimination." United States v. Bushyhead, 270 F.3d 905, 911 (9th Cir.2001). "If there was an improper comment on a defendant's silence at trial, violating the Fifth Amendment privilege against self-incrimination, we apply harmless error review." Id.
The Fifth Amendment right to remain silent contains an implicit assurance "that silence will carry no penalty." Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). "[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. (footnote reference omitted). However, "[t]he Supreme Court has subsequently held in Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), that there is no Doyle violation if the district court promptly sustains a timely objection to a question concerning post-arrest silence, instructs the jury to disregard the question, and gives a curative jury instruction." United States v. Foster, 985 F.2d 466, 468 (9th Cir.1993), as amended, 995 F.2d 882 (9th Cir.1993) and 17 F.3d 1256 (9th Cir.1994).
The prosecutor's cross-examination technique consisted of questioning Lopez chronologically about the various people with whom he interacted at the border. However, the inquiries regarding what Lopez failed to tell Harrington violated Doyle, because Lopez's contact with Harrington encompassed both pre-Miranda and post-Miranda periods. By drawing attention to the fact that Lopez "never" mentioned the alleged threats to Harrington, the prosecutor implicated Lopez's silence both pre-Miranda and post-Miranda. "Even if counsel for the government intended his comments to refer only to post-arrest/pre-Miranda silence, the actual language used contains no such limitation and it is highly doubtful that the jury understood any such limitation." United States v. Baker, 999 F.2d 412, 415 (9th Cir.1993).
Similarly, although for the most part the prosecutor permissibly referenced Lopez's pre-Miranda silence during closing argument, he also made overly broad references that impermissibly encompassed Lopez's failure to mention the threats to anyone after the invocation of his right to remain silent.1 "[A] prosecution closing argument that broadly condemn[s] appellant['s] silence: pre-Miranda and post-Miranda violate[s] due process." United States v. Whitehead, 200 F.3d 634, 639 (9th Cir.2000) (citation and internal quotation marks omitted).
In sum, Doyle error occurred when the prosecutor asked Lopez whether he ever told Harrington about the threats he received, and when he argued during closing argument that "[t]here was no duress related to any government agent."
The burden of proving a constitutional error harmless beyond a reasonable doubt rests upon the government. United States v. Williams, 435 F.3d 1148, 1162 (9th Cir.2006). "When deciding whether a prosecutor's reference to a defendant's post-arrest silence was prejudicial, this court will consider the extent of comments made by the witness, whether an inference of guilt from silence was stressed to the jury, and the extent of other evidence suggesting defendant's guilt." Bushyhead, 270 F.3d at 913 (citation omitted).
The only witness who testified about Lopez's post-Miranda silence was Lopez himself, on cross-examination. However, the "quantitative extent" of Lopez's responses regarding his post-Miranda silence "was not great in relation to the remainder of his testimony," which focused on Lopez's failure to tell the various people he encountered pre-Miranda about the threats he received. United States v. Velarde-Gomez, 269 F.3d 1023, 1035 (9th Cir. 2001) (en banc). Further, "the qualitative extent" of Lopez's testimony implicating his post-Miranda silence was limited; the prosecutor's "manner of questioning" focused primarily on Lopez's pre-Miranda silence. Id. As a result, Lopez's case can be distinguished from other cases where the defendant's post-Miranda silence formed the basis of the government's suggested inference of guilt. Cf. Velarde-Gomez, 269 F.3d at 1035, and United States v. Newman, 943 F.2d 1155, 1158 (9th Cir.1991). By far, the most powerful evidence of Lopez's actions was taken from his pre-Miranda silence. If Lopez was in fact running for his life, it would be reasonable to expect that he would disclose that fact in the heat of the moment when he first encountered border agents. That he did not do so supports a permissible inference, based on pre-Miranda silence, that he did not disclose that fact because it was not the true state of affairs. See Beckman, 298 F.3d at 795. Accordingly, the same inference would follow if the post-Miranda questions were eliminated from consideration. Adding these inferences to the stipulated evidence of guilt, i.e., Lopez's presence in the United States after deportation, and his lack of citizenship, harmless error is established beyond a reasonable doubt. See United States v. Pino-Noriega, 189 F.3d 1089, 1099 (9th Cir.1999) ().
Consideration of "whether an inference of guilt from silence was stressed to the jury" is also appropriate. Bushyhead, 270 F.3d at 913. An inference of guilt is stressed to the jury where the government "draw[s] a direct inference of guilt [from defendant's silence] during its closing argument." Velarde-Gomez, 269 F.3d at 1035. Although the prosecutor's broad rebuttal argument encompassed Lopez's post-Miranda silence, he did not "draw[] a direct inference of guilt . . . [or] use[] the testimony about [Lopez's][post-Miranda] silence as [his] principal means of meeting [the government's] burden." Id. Rather, the reference was made contemporaneously with references to Lopez's pre-Miranda silence and Lopez's statement during his testimony that he wanted to be...
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