and Submitted December 7, 2018 Pasadena, California
from the United States District Court Nos.
3:16-cr-01611-CAB-1 3:14-cr-02586-CAB-1 for the Southern
District of California Cathy Ann Bencivengo, District Judge,
R. Weinman (argued), Federal Defenders of San Diego Inc., San
Diego, California, for Defendant-Appellant.
Earl Zipp (argued) and Ajay Krishnamurthy, Assistant United
States Attorneys; Helen H. Hong, Chief, Appellate Section,
Criminal Division; United States Attorney's Office, San
Diego, California; for Plaintiff-Appellee.
Before: Johnnie B. Rawlinson and Carlos T. Bea, Circuit
Judges, and Benjamin H. Settle, [*] District Judge.
panel affirmed a conviction for attempted transport of aliens
in a case in which the defendant alleged that the prosecution
committed misconduct at trial by introducing evidence of, and
commenting on, the defendant's post-arrest silence in
violation of due process under Doyle v. Ohio, 426
U.S. 610 (1976).
review of the record, the panel concluded that the defendant
was not silent in response to a border patrol agent's
questioning on the topic of his co-conspirators - and that,
at most, the exchange demonstrated that the defendant did not
want to discuss his co-conspirators on video tape but was
willing to continue talking about the subject later. The
panel wrote that the prosecution's characterization of
the defendant as being evasive about other people involved in
alien smuggling was supported by, and tied to, evidence in
the record. The panel concluded that the prosecution
therefore did not err, or commit misconduct, by
characterizing the defendant as being evasive about the other
people involved in alien smuggling, but properly relied on
admissible evidence to rebut the theory that the defendant
had always intended to turn aliens he picked up over to
Judge Bea wrote that it cannot be that the defendant's
refusal to name his co-conspirators was not silence, and that
this determination allowed the prosecution at trial to
characterize his non-silence as silence for purposes of
proving his guilt. Judge Bea wrote that the prosecution's
reference to the defendant's silence as evidence of his
guilt in this context was a Doyle violation, and
plain error that warrants reversal and remand for further
SETTLE, District Judge:
Abrahan Garcia-Morales ("Garcia") appeals his
conviction for attempted transport of aliens in violation of
8 U.S.C. § 1324(a)(1)(A)(ii). Garcia alleges that the
prosecution committed misconduct by introducing evidence of,
and commenting on, his post-arrest silence at
trial.Because Garcia did not object to the
prosecutor's statements at trial, this Court reviews his
prosecutorial misconduct claim for plain error. United
States v. Sanchez, 176 F.3d 1214, 1218 (9th Cir. 1999).
We may reverse under this standard if: "(1) there was
error; (2) it was plain; (3) it affected the defendant's
substantial rights; and (4) 'viewed in the context of the
entire trial, the impropriety seriously affected the
fairness, integrity, or public reputation of judicial
proceedings."' United States v.
Alcantara-Castillo, 788 F.3d 1186, 1191 (9th Cir. 2015)
(quoting United States v. Combs, 379 F.3d 564, 568
(9th Cir. 2004)). The defendant bears the burden to establish
plain error. Combs, 379 F.3d at 568 (quoting
United States v. Geston, 299 F.3d 1130, 1134-35 (9th
Cir. 2002)). We affirm.
after Garcia left Calzada de la Fuente, a street abutting the
Otay Mountain Wilderness Area just north of the U.S.-Mexican
border, border patrol agents arrested him on suspicion of
alien smuggling. Three aliens thought to be waiting for
transportation from the area had been apprehended by border
patrol agents about thirty minutes before Garcia arrived.
When he was arrested, Garcia told agents he would have turned
any aliens he picked up over to border patrol. This statement
formed the basis for his theory of defense at trial: that he
lacked the requisite mens rea to transport aliens.
prosecution introduced video clips of Garcia's
interrogation at trial. Although he received a
Miranda warning and waived his right to remain
silent in response to that warning, Garcia alleges that he