U.S. v. Meneses-Davila

• Decision Date: 25 September 1978
• Docket Number: MENESES-DAVIL,No. 77-5677,D,77-5677
• Citation: 580 F.2d 888
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vicenteefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 888

580 F.2d 888

UNITED STATES of America, Plaintiff-Appellee, v. Vicente MENESES-DAVILA, Defendant-Appellant.

No. 77-5677.

United States Court of Appeals Fifth Circuit.

Sept. 25, 1978.

Gerald R. Severson (Court-Appointed), El Paso, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., Rebecca Westfall, Asst. U. S. Atty., El Paso, Tex., W. Ray Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RONEY, TJOFLAT and HILL, Circuit Judges.

RONEY, Circuit Judge:

Caught driving a car with 250 pounds of marijuana in the trunk, Vicente Meneses-Davila was convicted of possession of marijuana with intent to distribute. 21 U.S.C.A. § 841(a)(1). We reverse his conviction because the prosecutor impermissibly commented on defendant's post-arrest silence. Since this ground of reversal permits a retrial, we have reviewed defendant's insufficiency of the evidence contention and find that the jury could conclude on the evidence before it that defendant knew that his automobile contained marijuana.

There is no doubt that the prosecutor on several occasions brought out and commented on the fact that defendant remained silent at the time of arrest but then testified at trial to a story the prosecutor thought he should have told to the arresting officer. The Government concedes such prosecutorial conduct is constitutionally condemned by Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), but contends that the error was harmless. A review of the record and the applicable law leads us to conclude that the error was not harmless.

The Legal Principle

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court raised to a constitutional level the prohibition of prosecutorial "comment on silence for impeachment," prosecutorial conduct which, a year earlier in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), the Court had condemned in federal court under its supervisory power.

The defendant in Hale, arrested for robbery, made no response to an officer's inquiry as to the source of money found on his person. In connection with his alibi testimony at trial, he testified his wife had given him the money to purchase some money orders. To impeach him, the prosecutor asked why he had not told that story to the police at the time of his arrest. Reserving decision on the alternative constitutional ground of attack, the Supreme Court held that the evidence lacked significant probative value because, having been given his Miranda warnings, defendant's failure to explain about the money could as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory trial testimony was a later fabrication. Relying on its supervisory authority over federal courts, the court held that it was prejudicial error for the trial court to permit the cross-examination of defendant concerning his silence during police interrogation.

The following term the Supreme Court in Doyle elevated the principle to a constitutional level by holding, in an appeal from a state court conviction, that the use for impeachment purposes of a defendant's silence, after receipt of Miranda warnings, is a violation of the due process clause of the Fourteenth Amendment. ¹

While Doyle involved a state trial and the due process clause of the Fourteenth Amendment, it is at once obvious that the Court's decision reaches into federal courts with constitutional authority through the Fifth Amendment.

The next question is whether such a constitutional error as this can be sheltered by the harmless error rule announced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Although the Supreme Court has not ruled on this point, the Fifth Circuit directly decided in Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), Cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), that "the harmless error doctrine is applicable to the kind of constitutional violation at issue in Doyle."

Thus, the main issue we address on this appeal is whether the Government's admitted Doyle violation is harmless under the circumstances of this case, a determination that must be made "on a case-by-case basis" that depends "upon the circumstances of each case." United States v. Davis, 546 F.2d 583, 594-595 & n. 31 (5th Cir.), Cert. denied, 431 U.S. 906, 97 S.Ct. 1701, 52 L.Ed.2d 391 (1977).

The decision requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant's guilt. It must be noted that the critical issue at trial was defendant's knowledge that he possessed the prohibited marijuana, a fact proved only by circumstantial evidence.

Down by the Riverside

The action took place along the Rio Grande River, which separates the United States from Mexico. In response to an informant's tip that marijuana was going to be smuggled into an area of the border near El Paso, Texas, called Prado Street, customs agents set up surveillance. An agent saw three cars park on the Mexican side of the border. Several Mexicans got out of the cars, walked to the river, and later appeared on the American side of the border. A white four-door sedan then drove to the river on the American side. The car's only occupant was the driver, who got out of the car and opened the trunk. The Mexicans milled around the rear of the car, although the surveillant could not see if anything was placed in the trunk. The driver then got back into the car and drove back to the road.

The agent who saw all this alerted another agent who was waiting on the road in an unmarked customs vehicle. Spotting the white sedan described to him, this agent turned on his flashing red light and siren, attempting to stop the suspect vehicle. The car went about a quarter of a mile before stopping for a moment, then continued along the side of the road for another quarter of a mile before finally stopping. When the car was stopped, the driver and sole occupant of the car was defendant, Vicente Meneses-Davila. On the agent's instructions, he opened the trunk. Approximately 250 pounds of marijuana were found wrapped in plastic bags. Being Miranda -advised that he had the right to remain silent, defendant did so.

In the Courtroom

At trial, however, defendant told a story that, if true, would prove he thought the car he was driving contained clothing, possibly stolen, and not marijuana. This fact would exonerate him of the crime with which he was charged, one that requires a knowing and intentional possession of marijuana. For defendant's purposes, the jury did not have to believe his testimony, it being sufficient if it just cast a reasonable doubt as to the circumstantial proof that he knew what was in fact in the car. Defendant, a 32-year-old Mexican with a sixth grade education, a job, a wife, and six children, testified he was paid $30 to drive the car to a downtown El Paso location, he did not see the packages loaded into the trunk, he was told they contained clothing which he thought might have been stolen, he was never connected in any way with anybody dealing in marijuana, and he would not have driven the car if he had even thought there was marijuana in it.

The Prosecutor's Comments

In an effort to impeach defendant's testimony, the prosecutor made four separate, intentional references to defendant's post-arrest silence: during the direct examination of the arresting officer, on cross-examination of defendant, on direct examination of a Government rebuttal witness, and in his final closing jury argument. In an apparent effort to reduce the impact of these comments by explaining that defendant remained silent because he was advised he had a right to do so, defense counsel himself made three references to defendant's silence: on cross-examination of the arresting officer, on redirect examination of defendant, and during closing argument.

First Comment: Direct Examination of the Arresting Officer

The first reference to defendant's silence came during the Government's direct examination of the arresting officer. ² No objections were made to the questions concerning defendant's silence. On cross-examination, the defense attorney asked the officer whether he had conversed with defendant in Spanish (defendant did not speak English) and what he had asked defendant. In response the agent again added that defendant "said nothing." ³

Second Comment: Cross-Examination of Defendant

The prosecutor's second reference to defendant's silence constituted a blatant violation of Doyle. After defendant took the stand and told the jury his version of the events leading to his arrest, the prosecutor cross-examined defendant directly about his failure to tell the story to anyone before trial. ⁴ As before, the defense made no objection to this line of questioning. In order to counteract its effect, however, defense counsel on redirect brought out that no one had questioned defendant or given him a chance to explain what had happened. ⁵

After brief testimony from another witness regarding investigation into the ownership of the white sedan, the defense rested.

Third Comment: Government's Rebuttal Witness

The prosecution then called a Drug Enforcement Administration agent as a rebuttal witness for the sole purpose of rebutting defendant's statement that none of the arresting officers had questioned him, and in the process again called attention to the fact that defendant was silent after he was arrested. ⁶ This third prosecutorial reference to defendant's silence also came in without objection.

Fourth Comment: Closing Argument

The prosecutor did not refer to defendant's silence in his initial closing argument. The defense attorney made an effort to explain...