US v. Ramirez-Estrada, No. 12-50340 (4-25-14) (Clifton with Schroeder and Tunheim, D.J.). 

A Doyle error results in vacation and remand of the attempted reentry and false claim of US citizenship charges.  Doyle error involves the use of post-Miranda silence to impeach a testifying defendant.  The defendant here had been previously convicted, and the court had instructed BOP to attend to his jaw injury.  BOP did nothing and the defendant was deported.  The defendant then either attempted to reenter falsely claiming US citizenship or approached the POE and asked that he be let back in so BOP could treat his jaw.  The gov’t claimed the former.  However, both the government and defendant agree that he was given his Miranda warnings, and he invoked.  He was then asked booking questions, which were permissible; some of which concerned his health, and the agent provided examples such as a heart condition or diabetes.  At trial, they defendant testified about his jaw and the circumstances of his return to seek treatment promised.  The government contends that his prior booking answers were direct contradictions of his trial testimony, and he could be impeached.  The 9th disagreed, finding that the answers were not direct contradictions, but ambiguous (he was not asked about his jaw, and given examples of life threatening diseases).  The government's impeachment therefore was in effect comments on his silence (what he did not say).  This was error and it was prejudicial.

Congrats to Caitlin Howard of the Federal Defenders of San Diego.