Case o' The Week: Silence is Golden (Opportunity for AUSA) -- Garcia-Morales and Doyle Comments on Post-Miranda Silence

  “The prosecution's reference to Garcia's silence as evidence of his guilt in this context was a Doyle violation, plain and simple.” 

 

The Hon. Judge Carlos Bea

 United States v. Garcia-Morales, 2019 WL 5608832, at *5. (9th Cir. Oct. 31, 2019) (Bea, J., dissenting), decision available here.

Players: Decision by DJ Settle, joined by Judge Rawlinson.

  Compelling dissent by Judge Carlos Bea.

  Hard fought appeal by AFD Sara Weinman, Federal Defenders of San Diego, Inc.   

Facts: Garcia was charged with attempted transport of aliens, after he was arrested near the border where three undocumented aliens had been found. Id. at *2. He was Mirandized, waived, and answered videotaped questions. Id.

  Garcia admitted a prior attempt to transport aliens, and that he had been offered a job transporting aliens by a smuggler on the morning of his arrest. Id. He contended, however, that on the day of arrest, he was just scoping out the area. When asked the names of his smuggling contacts, Garcia said he wasn’t feeling “cool with that camera.” Id. The agent offered to turn off the camera later: Garcia nodded his head “yes” twice. Id. The interrogation continued.

  Later, at trial, in the closing argument the AUSA argued that Garcia’s “evasiveness” about other people involved contradicted other statements Garcia had made. Id. The defense did not object.

  Garcia was convicted, and appealed.  

Issue(s): “Garcia alleges that the prosecution committed misconduct by introducing evidence of, and commenting on, his post-arrest silence at trial.” Id. at *1.

  “Because Garcia argues that he selectively invoked the right to silence on the topic of his co-conspirators, he contends that the prosecution's eliciting of testimony and argument about this topic was improper and asks us to remand for a new trial.” Id. at *2.  

Held: “Upon review of the record, we conclude that Garcia was not silent in response to Agent Kahl's questioning on the topic of his co-conspirators. This conclusion is driven by the fact that the exchange between Agent Kahl and Garcia began with Garcia voicing discomfort with video recording and concluded with Garcia agreeing to speak about his coconspirators. At most, the exchange demonstrated that Garcia did not want to discuss his co-conspirators on video tape but was willing to continue talking about the subject later. On the fact-specific record before us, that brief exchange does not amount to the invocation of silence under either standard articulated above.” Id. at *3.

  “Because the prosecution tied its arguments characterizing Garcia as evasive to the evidence and given our holding that Garcia was not silent, the prosecution did not commit misconduct by characterizing him as being evasive about the other people involved in alien smuggling. Rather, the prosecution properly relied on admissible evidence to rebut the theory that Garcia had always intended to turn aliens he picked up over to border patrol.” Id.

Of Note: In a compelling dissent, Judge Bea explains “the prosecution argued in its closing statement that Garcia must be guilty because he was ‘evasive about other people who are involved,’ asking ‘Why does he want the recording turned off? . . . . It wasn't because he had a plan the entire time to turn these people over.’ This is exactly the type of penalty for exercising one's Fifth Amendment rights that Doyle prohibits.” Id. at *4 (Bea, J., dissenting) (emphasis in original).

  “The prosecution's reference to Garcia's silence as evidence of his guilt in this context was a Doyle violation, plain and simple.” Id.

  Judge Bea correctly, and forcefully, argues that the prosecutor’s reliance on post-Miranda silence rose to the level of plain error, meriting reversal. Garcia-Morales is a troubling break from Ninth authority prohibiting comments on silence. Id. 

  This great Judge Bea dissent is, hopefully, the seed of a future en banc flower.

How to Use: The majority decision oddly relies upon an agent’s reference to further interrogation discussions as a reason to find that Garcia did not remain silent (further discussions that never happened, by the way). Id. at *3. Use that quirky fact to limit this unfortunate holding in future Doyle cases.

                                               

For Further Reading: Task-Force Feds flaunt local and state cop rules. So reports this fascinating Marshall Project article, available here. 

Image of Judge Bea from https://www.law.com/therecorder/2019/06/12/with-ninth-circuit-judge-planning-to-go-senior-trump-gets-another-potential-vacancy-to-fill/

Steven Kalar, Federal Public Defender N.D. Cal. Website available at www.ndcalfpd.org

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Case o' The Week: Loyal to Doyle - Ramirez-Estrada and Post-Miranda Silence

Silence is golden.

Hon. Judge Richard Clifton

Not commenting on that silence -- even better.

United States v. Ramirez-Estrada, 2014 WL 1646931 (9th Cir. Apr. 25, 2014), decision available here.

Players: Decision by Judge Clifton, joined by Judge Schroeder and visiting D.J. Tunheim. Nice win for Caitlin Howard, Ass’t Def., Federal Defenders of San Diego, Inc.

Facts: Ramirez-Estrada, an undocumented alien, had been deported several times. Id. at *1. While incarcerated in ’05, he sustained a serious jaw injury – a district judge had order treatment, but it never happened and Ramirez-Estrada was deported. Id. In 2011, he tried to enter the U.S. through San Ysidro, allegedly saying he had been born in Vegas but lost his papers. Id. Ramirez-Estrada, however, testified he only attempted to enter the US to get his painful jaw injury treated as had been ordered by a judge, and testified that he had told that to border agents. Id. at *2. To impeach the defendant, the government offered the testimony of the agent who had booked him. Id. That agent said that (after Ramirez-Estrada invoked Miranda) he reported no health problems like “heart condition, diabetes, or anything like that.” Id. at *2-*3. The jury convicted Ramirez-Estrada of attempted illegal entry and making a false claim to U.S. citizenship. Id. at *3.

Issue(s): “This case concerns the scope of a criminal defendant's constitutional rights under Doyle v. Ohio, 426 U.S. 610 (1976), which prevents impeachment impeachment of a defendant with his post-Miranda silence.” Id. at *1.

Held: “Nothing Ramirez–Estrada said in those [post-Miranda] statements served to impeach his testimony. Rather, it is what he failed to say that was relevant to undermine his credibility. We thus conclude that the use of Ramirez–Estrada's post-invocation silence to impeach him violated his rights under Doyle. Because this error was not harmless beyond a reasonable doubt, we reverse.” Id. at *1. “Although neither the Supreme Court nor this court has previously faced the particular situation presented here, we conclude that Doyle bars admission of Ramirez–Estrada's statements to Officer Nicasio. It is clear and undisputed that Ramirez–Estrada invoked his Miranda rights by asking for a lawyer. The difficult question is the second one: whether his statements in response to Officer Nicasio's routine booking questions were directly inconsistent with his trial testimony. We conclude that they were not and that it was, instead, his silence that was used against him.” Id. at *4.

Of Note: This is a careful, nuanced decision that relies heavily on the precise words used during the booking process. Id. at *5. How can Judge Clifton quote this exchange verbatim? “A recording of the interview, from which we can draw precise quotations, is part of the record.” Id. at *5 & n.3. 

  Would this constitutional violation have been discovered, if the record was merely a swearing match between the agents and the defendant? 

  Unlikely.  

  Ramirez-Estrada illustrates the travesty of federal agents refusing to tape interviews – the only reason not to record is to hide violations like the Doyle problem in this case.

How to Use: Can you have a Doyle violation (an improper use of silence) without a Miranda violation? Yep. “[A] Doyle violation occurs where the prosecution uses defendant’s post-invocation silence to impeach him, regardless of whether the police complied with Miranda.” Id. at *4. Judge Clifton offers a helpful discussion of the subtle nuances of Doyle caselaw, and of the Ninth’s lead decision in Caruto. Read Ramirez-Estrada for a good explanation of how omissions, impeachment, and silence interaction in the Doyle analysis.

                                               

For Further Reading: D.O.J.’s new clemency initiative offers hope to thousands of inmates imprisoned under federal drug laws. See press release here.  For a good general description of this program, see the Washington Post article here. 

  More details, and a discussion of the most obvious candidates for clemency, can be found here .

Image of the Hon. Richard Clifton from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEh_Y_MsZ-DGCp7UcVJMLfSZ6BDACikIaO8ujDrwh8Xywt8PhJ58ow6i_4h3rpArMexjZoLOgZMvq9QRmM0OYOdhHLZltGQCiBknp0xvdEqrSX-yt0A1VN0AucXX6Sns0OuI5yyDQw/s1600/IMG_9546.JPG

Steven Kalar, Federal Public Defender N.D. Cal . Website at www.ndcalfpd.org