United States v. Cesar Gomez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50018 Plaintiff-Appellee, D.C. No. v. 3:10-cr-04587-W-

CESAR GOMEZ,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, Senior District Judge, Presiding

Argued and Submitted July 10, 2013—Pasadena, California

Filed August 6, 2013

Before: Susan P. Graber, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.

Opinion by Judge Graber; Dissent by Judge Watford SUMMARY*

Criminal Law

The panel affirmed a jury conviction of importation of methamphetamine in a case in which the defendant claimed ignorance of the presence of the drugs in his car.

The panel held the district court did not violate Miranda by admitting the defendant’s post-arrest statement that he feared for his family’s safety, where the statement, an explanation for why he refused to talk to the arresting agent, was voluntary and arguably inconsistent with his trial testimony, and where the prosecution used the statement only as impeachment during…

dissenting:

Under United States v. Bushyhead, 270 F.3d 905 (9th Cir.2001), Gomez’s statement that he could not speak to officers because his “family will get killed” should have been excluded, even as impeachment evidence. The majority reads Bushyhead as precluding the use of Gomez’s statement only in the government’s case-in-chief, but I do not think the case can be read that narrowly.

The majority does not dispute that, as in Bushyhead , the “entirety” of Gomez’s statement was “an invocation of his right to silence.” Id. at 913 . Instead, the majority holds that Bushyhead did not address whether a defendant’s explanation for his refusal to talk can be used for impeachment purposes. It is true that in Bushyhead the government used the contested statement in its case-in-chief rather than as impeachment evidence, but the court’s analysis did not turn on that distinction. To the contrary, Bushyhead based its holding on Doyle v. Ohio, 426 U.S. 610, 619 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), which squarely held that a defendant’s post -Miranda silence may not be used even as impeachment evidence. In expanding the reach of Doyle to include “not merely the silence itself, but the…

Defendant Cesar Gomez appeals his conviction on one count of importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960, after he was caught crossing the border with methamphetamine in his car. Defendant claimed ignorance of the presence of drugs in his car, but the jury convicted him. On appeal, Defendant argues that the prosecution’s introduction of a post-arrest statement violated Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966); that the admission of an expert witness’ testimony violated the Federal Rules of Evidence and the Confrontation Clause; and that the prosecutor’s closing argument amounted to prosecutorial misconduct. We disagree and, accordingly, affirm.

FACTUAL AND PROCEDURAL HISTORY

Defendant attempted to cross the United States-Mexico border as the sole occupant of a Toyota Camry. Border officials discovered, hidden in the gas tank, 15 packages containing several kilograms of methamphetamine. After the officials informed Defendant of his Miranda rights, the following exchange occurred:

(Ellipses and brackets in transcription.) No further questioning occurred.

The government indicted Defendant on one count of…