US v. Garcia-Morales, No. 17-50323 (10-31-19)(Settle w/Rawlinson; Bea dissenting). The 9th affirms an attempted smuggling conviction despite the prosecutor alleged violation of Doyle v. Ohio (commenting on post-arrest silence).  The defendant was picked up close to the border, by a wilderness preserve. He waived Miranda, and said he was only scoping out the area. The agents pressed him on his co-conspirators. The defendant said he “wasn’t cool” with naming them on camera but could talk about it later. Off camera, he later invoked on the issue.  In his closing the prosecutor argued “evasiveness.” There was no objection.

The majority finds no Doyle violation. The majority concludes that the defendant had not invoked. The “evasiveness” argued was supported by the evidence, and did not go to silence. It undermined the defendant’s claim that he would have turned in undocumented individuals if he came across them.

Dissenting, Bea agreed that the defendant’s hesitancy to name names was not silence. The misconduct, and plain error, was the prosecutor characterizing the refusal to name names as “evasiveness” and repeatedly as “silence” and that silence implied guilty mens rea.  Thus, “silence” was used to prove guilt, and was a Doyle violation.

Note: The lack of objection made this a plain error violation. This is another example of the need to object.

Tough loss for Sarah Weinman, Deputy Fed Def of San Diego.

The decision is here: 

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/10/31/17-50323.pdf