Saturday, November 02, 2019

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

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


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