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United States v. Garcia-Morales

United States Court of Appeals, Ninth Circuit

October 31, 2019

United States of America, Plaintiff-Appellee,
v.
Abrahan Garcia-Morales, AKA Abraham Garcia-Morales, Defendant-Appellant.

          Argued and Submitted December 7, 2018 Pasadena, California

          Appeal 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, Presiding

          Sarah R. Weinman (argued), Federal Defenders of San Diego Inc., San Diego, California, for Defendant-Appellant.

          Daniel 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.

         SUMMARY[**]

         Criminal Law

         The 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).

         Upon 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 border patrol.

         Dissenting, 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 proceedings.

          OPINION

          SETTLE, District Judge:

         Defendant 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.[1]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.

         Shortly 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.

         The 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 later ...


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