United States v. Jose Armando Ochoa-Sanchez

Defendant was convicted of illegal importation and possession of a controlled substance with intent to distribute. At trial he denied any knowledge that the heroin was in the car. On appeal, he claims primarily that his due process rights were violated by the prosecutor’s use of post-arrest silence to impeach his trial testimony. We affirm.

I. Post-Arrest Silence

On December 15, 1980, defendant drove into the San Ysidro Port of Entry. Responding to the customs inspector’s questions, he said he had visited Mexico for fun and had been there for two or three hours. He said that the car belonged to a friend.

The heroin was discovered following inspection in the secondary inspection area, to which the customs inspector had directed him. He was arrested and advised of his rights. Upon questioning by Drug Enforcement Administration special agent Murray, he claimed he knew nothing of the heroin. He told the agent that the car belonged to a white man, a “gabacho,” that he had driven into Mexico that morning, and that his purpose was to visit a friend. Although he first claimed not to know the identity of the car’s owner, he later explained that he borrowed the car from his friend, who…

dissenting:

I dissent because the majority lose sight of the general rule that post-arrest silence may not be used against a defendant and improperly seek to bring the facts of this case within the limited exception to that rule set forth in Anderson v. Charles, 447 U.S. 404 , 100 S.Ct. 2180 , 65 L.Ed.2d 222 (1980).

The Supreme Court, in Doyle v. Ohio, 426 U.S. 610, 618 , 96 S.Ct. 2240, 2245 , 49 L.Ed.2d 91 (1976), and United States v. Hale, 422 U.S. 171, 180-81 , 95 S.Ct. 2133, 2138 , 45 L.Ed.2d 99 (1975), held that it is a deprivation of due process to impeach a defend *1290 ant’s testimony at trial with his post-arrest silence that followed Miranda warnings. In Doyle and Hale , the defendants elected to remain silent and said nothing to the officers who attempted to interrogate them.

The rule in Doyle does not apply, however, to cross-examination that “merely inquires into prior inconsistent statements.” Charles, 447 U.S. at 408 , 100 S.Ct. at 2182 .

Id. (Emphasis added.)

The facts of this case do not exactly fit the pattern of either Doyle or Charles . In Doyle , the defendant remained completely silent, while in Charles , the defendant’s testimony was clearly…

676 F.2d 1283 10 Fed. R. Evid. Serv. 1298 UNITED STATES of America, Plaintiff-Appellee, v. Jose Armando OCHOA-SANCHEZ, Defendant-Appellant. No. 81-1381. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 2, 1982. Decided May 10, 1982. Mario Conte, Deputy Federal Public Defender, San Diego, Cal., for defendant-appellant. Larry P. Zoglin, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before WRIGHT and FLETCHER, Circuit Judges, and MEREDITH, * Senior District Judge. EUGENE A. WRIGHT, Circuit Judge: 1 Defendant was convicted of illegal importation and possession of a controlled substance with intent to distribute. At trial he denied any knowledge that the heroin was in the car. On appeal, he claims primarily that his due process rights were violated by the prosecutor's use of post-arrest silence to impeach his trial testimony. We affirm. I. Post-Arrest Silence 2 On December 15, 1980, defendant drove into the San Ysidro Port of Entry. Responding to the customs inspector's questions, he said he had visited Mexico for fun and had been there for two or three hours. He…