U.S. v. Salinas

• Decision Date: 05 March 2007
• Docket Number: No. 05-10964.,05-10964.
• Citation: 480 F.3d 750
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mario Alfredo SALINAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

480 F.3d 750

UNITED STATES of America, Plaintiff-Appellee, v. Mario Alfredo SALINAS, Defendant-Appellant.

No. 05-10964.

United States Court of Appeals, Fifth Circuit.

March 5, 2007.

Renee Harris Toliver, Fort Worth, TX, Susan B. Cowger, Chad Eugene Meacham, Dallas, TX, for Plaintiff-Appellee.

Jason Douglas Hawkins, Dallas, TX, for Defendant-Appellant.

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

Before GARWOOD, DENNIS and OWEN, Circuit Judges.

DENNIS, Circuit Judge:

This case is before us on appeal of defendant Mario Alfredo Salinas's conviction for unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). For the reasons stated below, we AFFIRM Salinas's conviction.

I. Background and Proceedings Below

At approximately 11:15 p.m. on April 9, 2003, defendant Mario Alfredo Salinas was driving a black, 1999 GMC Yukon. Officer Erwin Fulcher of the Carrollton, Texas, police department stopped the vehicle because it had a defective tail light. Officer Fulcher asked Salinas for his license and proof of insurance. Salinas gave the officer his driver's license, but stated that he did not have proof of insurance because he was in the process of purchasing the vehicle. Officer Fulcher eventually arrested Salinas for failure to provide proof of insurance and transported Salinas to the Carrollton police station.

After Salinas was arrested, additional Carrollton police officers on the scene conducted an inventory search of the Yukon. During the search, officers found a brown paper bag, which contained $3,397 in cash, between the driver's seat and the center console. Beneath the bag, officers found a loaded Ruger 9mm semiautomatic pistol. Officers also found a black pouch containing a loaded Rossi .357 Magnum revolver under the front passenger seat. The Yukon's rear cargo area contained a gym bag with $168 and some vitamins inside it. At the police station, officers found $2,168 in cash in Salinas's jacket pocket.

Two days after his arrest, Salinas returned to the Carrollton police station and said that he wished to pick up his "money and other stuff." The property room officer stated that all of the seized property was evidence and could not be released to Salinas. The officer also stated that, because Salinas was a convicted felon, the firearms could not be returned to him. Salinas responded, "I know that," and he then left.

Salinas ultimately was charged with one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At trial, Salinas's defense was that he had borrowed the Yukon from his friend Rosendo Moreno, and that he did not know that the firearms were in the car. Moreno testified at trial that he purchased the Yukon on April 8, 2003, from a man named Henry Lopez. Moreno stated that, on April 9, 2003, he took the vehicle to Big Rig Detailers, an automotive shop at which Salinas worked, to have some hail damage repaired and to have the car painted. While he was there, Moreno stated, Salinas told Moreno that his car was in the shop, and he asked Moreno whether he could borrow the Yukon. To support Moreno's testimony, the defense offered into evidence a bill of sale showing a sale from Lopez to Moreno on April 8, 2003. The bill of sale indicated that it had been notarized by Jose Francisco May.

Moreno also testified that the cash and the two firearms found in the Yukon belonged to him. He stated that he purchased the .357 Magnum in a "street buy," and that he purchased the 9mm from a friend named Carlos Hernandez. Moreno testified that the guns were in the Yukon because he had used them at a gun range earlier on April 9, 2003, before he loaned the vehicle to Salinas, and that he kept the firearms loaded because he had previously been the victim of an attempted carjacking.

On cross-examination, Moreno admitted that he did not have a permit for either weapon, that the firearms were not registered to him, and that he did not have any documentation to prove that he owned the firearms. The prosecution also cross-examined Moreno at some length about other aspects of his version of events, including the fact that, although he claimed that the $3,397 found in the Yukon belonged to him, he had never made any attempt to recover the money from the Carrollton police department.

The defense also presented testimony from Carlos Hernandez, who testified that he sold Moreno the 9mm in March 2003, and from Salinas's employer, Christopher Cruz, who stated that he recalled that Moreno brought a sport utility vehicle to Big Rig Detailers in April 2003, and that Salinas had borrowed the vehicle. Salinas did not testify in his own defense at the trial.

In rebuttal, the prosecution presented testimony from Henry Lopez, the registered owner of the Yukon. Lopez testified that he did not sell the Yukon to Moreno on April 8, 2003. Lopez stated that he sold the Yukon to a friend named Shane Clendening on April 1, 2002, and that he believed that the vehicle had since been resold several times, but that the title had never been transferred out of his name. Lopez also stated that, although he signed a bill of sale that purported to describe a sale to Rosendo Moreno on April 8, 2003, he actually signed the document on April 16, 2003, and he did so only because he believed that it would help to get the title transferred out of his name. Lopez testified that there was not a notary public present when he signed the bill of sale. The government also called Jose Francisco May, the notary public, who testified that he did not notarize the bill of sale between Lopez and Moreno.

On January 20, 2005, a jury convicted Salinas, and on July 11, 2005, the district court sentenced him to 57 months in prison. On appeal, Salinas makes two arguments. First, he argues that the prosecution improperly attempted to use his post-arrest silence as substantive evidence of his guilt. Second, Salinas claims that the evidence at trial was insufficient to support his conviction.

II. The Prosecution's References to Salinas's Post-Arrest Silence

Salinas claims that the prosecution improperly made reference to his post-arrest silence at three points during its case-in-chief. First, during the prosecution's opening argument, the prosecutor stated, "At no time, at no time, the evidence is going to show, that the defendant denied ownership of the money or guns." Defense counsel immediately objected to that remark. The court sustained the objection and reminded the jury that it was to render its verdict only on the basis of the evidence presented, not on the arguments of counsel.

Second, during the government's examination of Officer Fulcher, who arrested Salinas and who was with Salinas at the Carrollton police station when the firearms were discovered in the Yukon, the prosecutor asked Officer Fulcher "how, if at all" Salinas reacted when he heard that firearms had been found in the Yukon. Defense counsel objected before the witness could answer, and the court sustained the objection.

Third, later in its direct examination of Officer Fulcher, the prosecution asked Officer Fulcher whether Salinas made any statements after his arrest. Officer Fulcher answered, "No, sir." Defense counsel again objected, and the court sustained the objection. Defense counsel also requested that the jury be instructed to disregard the statement. The trial judge stated that he would not then instruct the jury, but would consider an instruction at a later time. Defense counsel apparently never reiterated his request for an instruction. In its charge to the jury, however, the court instructed the jury that the statements and arguments of the lawyers could not be considered as evidence and that the jury was to disregard any question to which the court had sustained an objection.

Salinas asserts that each of those statements was an improper comment on his post-arrest silence, in violation of his constitutional rights. The government maintains that the comments and questions were permissible. The government points out that Salinas did not receive the Miranda¹ warnings at the time of his arrest,² and it argues that the prosecution can permissibly refer to a defendant's pre-Miranda warning silence at trial.

Because Salinas did not properly preserve his claim of error regarding the prosecutor's comments on his post-arrest silence in the district court, we review this claim only for plain error. Although Salinas's counsel timely objected to each of the prosecutor's references to Salinas's post-arrest silence, the trial court sustained all of those objections, and the trial court's instructions to the jury made it clear that the jury was not to consider any of the challenged remarks.³ Salinas's counsel never took exception to the district court's handling of his objections, and, significantly Salinas never requested that the district court declare a mistrial. Thus, Salinas effectively received all of the relief that he requested from the district court. When a defendant asks this court to reverse a conviction under these circumstances, the defendant essentially asks us "`to go against the implicit judgment of both the trial court and the defendant's trial counsel that the trial court's corrective action was adequate and appropriate.'" United States v. Carter, 953 F.2d 1449, 1465-66 (5th Cir.1992) (quoting United States v. Canales, 744 F.2d 413, 431 (5th Cir.1984)). In such cases, we consider the challenged comments under the plain error standard. See id. at 1466 (applying plain error standard where trial court sustained defendant's objections and defendant did not request mistrial; stating that "logically there is little difference between a case that comes to us where no objection has been made to the alleged impropriety and one where no further objection has been made to the trial judge's handling of an impropriety"); see also Canales, ...