US v. Gomez, No. 12-50018 (8-6-13)(Graber with Rawlinson; dissent by Watford).


The Miranda rights were read when the drugs were found in the defendant's car at the POE, and the defendant said he couldn't talk because his family would be killed. At trial, the defendant raised a "blind mule" defense. In rebuttal, the gov't introduced the statement. Was it a comment on the defendant's silence? No, held the 9th. "Yes," argued the dissent. The majority focused on how the statement was inconsistent with his trial testimony, and was rebuttal. The dissent focused on how it was intertwined with his invocation. The 9th also held that the right to confrontation was not violated when the drug agent was an "expert" on drug cartels not using "blind mules." Furthermore, the prosecutor did not err when the prosecutor argued it was the jury's "duty" to convict, since it followed the statement that the gov't has the burden of proof. Read in context, the prosecutor was not stating that the jury had to convict, but that it should if the evidence was beyond a reasonable doubt. Those qualifications were not in the statement, but the 9th felt it could be implied, and was contextual.