Prosecutor's Use of Defendant's Post-Arrest, Pre-Miranda Silence as Substantive Evidence in Case-In-Chief Not Plain Error

United States v. Salinas, No. 05-10964 (5th Cir. Mar. 5, 2007) (Garwood, Dennis, Owen)

From the "damned-if-you-do, damned-if-you-don't" files:

A police officer pulled over Salinas for driving a vehicle with a defective tail light, and asked for his license and proof of insurance. Salinas gave the officer his driver's license, but "stated that he did not have proof of insurance because he was in the process of purchasing the vehicle." The officer arrested Salinas for not having proof of insurance. Other officers on the scene searched the vehicle and found two loaded handguns and roughly $3,500 in cash. A search of Salinas's jacket at the police station turned up another $2,168 in cash. The arresting officer never Mirandized Salinas, and Salinas evidently kept silent in the immediate aftermath of his arrest.

Salinas was eventually charged with being a felon in possession of a firearm. At trial, the prosecutor made three different references to Salinas's post-arrest silence during its case-in-chief:

First, during the prosecution’s opening argument, the prosecutor stated, “At no time, at no time, the evidence is going to show, that the defendant denied ownership of the money or guns.” Defense counsel immediately objected to that remark. The court sustained the objection and reminded the jury that it was to render its verdict only on the basis of the evidence presented, not on the arguments of counsel.

Second, during the government’s examination of Officer Fulcher, who arrested Salinas and who was with Salinas at the Carrollton police station when the firearms were discovered in the Yukon, the prosecutor asked Officer Fulcher “how, if at all” Salinas reacted when he heard that firearms had been found in the Yukon. Defense counsel objected before the witness could answer, and the court sustained the objection.

Third, later in its direct examination of Officer Fulcher, the prosecution asked Officer Fulcher whether Salinas made any statements after his arrest. Officer Fulcher answered, “No, sir.” Defense counsel again objected, and the court sustained the objection. Defense counsel also requested that the jury be instructed to disregard the statement. The trial judge stated that he would not then instruct the jury, but would consider an instruction at a later time. Defense counsel apparently never reiterated his request for an instruction. In its charge to the jury, however, the court instructed the jury that the statements and arguments of the lawyers could not be considered as evidence and that the jury was to disregard any question to which the court had sustained an objection.

Slip op. at 7-8. The jury convicted Salinas, and the district court sentenced him to 57 months' imprisonment.

On appeal, Salinas challenged the prosecution's use of his post-arrest silence. The court reviewed for plain error because, although Salinas objected each time the prosecution referred to his post-arrest silence, he never took issue with the way the district court handled the objections and never asked for a mistrial. The court went on to consider two possible rights violations: due process and the privilege against self-incrimination.

The court held that there was no due process violation in the prosecutor's use of Salinas' post-arrest, pre-Miranda silence. Because there's no Supreme Court due process precedent involving the precise scenario here, the court extrapolated from the cases involving the use of pre- and post-Miranda silence for impeachment purposes. Doyle v. Ohio held that the latter is generally verboten because the Miranda warnings implicitly assure a defendant that his silence will not be used against him. On the other hand, Fletcher v. Weir and Jenkins v. Anderson held that use of pre- or post-arrest, pre-Miranda silence doesn't implicate the same fundamental fairness concerns that motivated the Court's holding in Doyle because the defendant's silence hasn't been induced by any action on the part of the government. So according to the court, "Fletcher's emphasis on the affirmative assurances of Miranda warnings [make it] clear that, irrespective of whether the defendant testifies at trial, the rationale of Doyle applies only to post-Miranda silence." Slip op. at 15.

Plain error review allowed the court to avoid deciding the self-incrimination issue one way or the other. There's no Fifth Circuit precedent directly on point, and there's a longstanding split of authority among the circuits that have addressed the question. Consequently, "[b]ecause this circuit’s law remains unsettled and the other federal circuits have reached divergent conclusions on this issue, even assuming that the prosecutor’s comments were improper, Salinas cannot satisfy the second prong of the plain error test—that the error be clear under existing law." Slip op. at 19.