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No. 07-36

 

In the Supreme Court of the United States

MARIO ALFREDO SALINAS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
JOHN-ALEX ROMANO
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether references at trial to petitioner's silence after he was arrested but before he received warnings under Miranda v. Arizona, 384 U.S. 436 (1966), consti tuted reversible plain error.

In the Supreme Court of the United States

No. 07-36

MARIO ALFREDO SALINAS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-15a) is reported at 480 F.3d 750.

JURISDICTION

The judgment of the court of appeals was entered on March 5, 2007. A petition for rehearing was denied on April 9, 2007 (Pet. App. 16a-17a). The petition for a writ of certiorari was filed on July 9, 2007 (Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Texas, petitioner was convicted of one count of possessing a firearm as a con victed felon, in violation of 18 U.S.C. 922(g)(1). He was sentenced to 57 months of imprisonment, to be followed by three years of supervised release. The court of ap peals affirmed. Pet. App. 1a-15a.

1. On April 9, 2003, Officer Erwin Fulcher of the Carrollton, Texas, Police Department stopped a vehicle driven by petitioner because it had a defective taillight. Officer Fulcher instructed petitioner to get out of the vehicle and to hand over his driver's license and proof of insurance. Petitioner handed over his driver's license, but told Officer Fulcher that he did not have proof of insurance because he was in the process of purchasing the vehicle. While Officer Fulcher was running a license check, petitioner attempted to return to his vehicle, whereupon he was stopped by another officer who had arrived on the scene. The officers subsequently ar rested petitioner for failure to provide proof of insur ance. At the time of the arrest, the officers did not ad minister any warnings under Miranda v. Arizona, 384 U.S. 436 (1966). Pet. App. 2a.

Following petitioner's arrest, officers conducted an inventory search of the vehicle and found a 9-millimeter semiautomatic pistol between the driver's seat and the center console; a .357-caliber revolver under the front passenger seat; and more than $3500 in cash. Petitioner was subsequently released. Two days after his arrest, petitioner went to the police station and asked to re trieve his "money and other stuff." The officer at the station explained that the property was evidence and that, in any event, the guns could not be released to peti tioner because he was a convicted felon. Petitioner re sponded, "I know that," and left. Pet. App. 2a-3a.

2. On October 5, 2004, a grand jury in the Northern District of Texas returned a superseding indictment charging petitioner with one count of possessing a fire arm as a convicted felon, in violation of 18 U.S.C. 922(g)(1). At trial, the government presented evidence that petitioner was the driver and only occupant of the vehicle; that at least one of the guns was found next to the driver's seat, within petitioner's reach; that peti tioner told Officer Fulcher that he was in the process of buying the vehicle; that petitioner later attempted to retrieve all of the property from the vehicle; and that petitioner told the officer at the station that he knew that the guns could not be returned to him. Pet. App. 2a-3a. Rosendo Moreno, a friend of petitioner's, testi fied in petitioner's defense that he had loaned the vehi cle to petitioner after purchasing it and bringing it into an automotive shop where petitioner worked, and that the guns and the cash belonged to him, not petitioner. Id. at 3a. On cross-examination, however, Moreno ad mitted that the guns were not registered to him; that he had no evidence of his ownership; and that he had made no effort to reclaim the cash that was purportedly his. Id. at 3a-4a. In addition, on rebuttal, the registered owner of the vehicle testified that he had not sold the vehicle to Moreno, as Moreno had claimed. Id. at 4a.

During trial, defense counsel objected on three occa sions to comments or questions by the prosecution con cerning petitioner's post-arrest silence. First, during opening statements, the prosecutor stated, "At no time, at no time, the evidence is going to show, that the defen dant denied ownership of the money or guns." Defense counsel objected, stating, "I'll object going into that, Judge, if it gets into any kind of silence after arrest." The trial judge sustained the objection and told the jury that it was to render its verdict based only on the evi dence and not on the arguments of counsel. Pet. App. 5a.

Second, on direct examination during the prosecu tion's case in chief, the prosecutor asked Officer Fulcher "how, if at all," petitioner had reacted when he heard that guns had been found in the vehicle. Before Officer Fulcher could answer, defense counsel objected; the judge sustained the objection. Pet. App. 5a.

Third, later in direct examination of the same wit ness, the prosecutor asked Officer Fulcher whether peti tioner had made any statements after his arrest. Officer Fulcher answered, "No, sir." Defense counsel objected; the judge sustained the objection. Defense counsel asked the judge to instruct the jury to disregard the statement; the judge stated that he would not instruct the jury then, but would consider an instruction at a later time. Defense counsel apparently did not renew his request for an instruction. In his ultimate instruc tions to the jury, however, the judge told the jury that it should disregard any question to which the judge had sustained an objection, and further reminded the jury that statements of counsel should not be treated as evi dence. Pet. App. 5a-6a.

The jury found petitioner guilty. Petitioner was sen tenced to 57 months of imprisonment, to be followed by three years of supervised release. Pet. App. 4a.

3. The court of appeals affirmed. Pet. App. 1a-15a. On appeal, petitioner claimed, inter alia, that the prose cution had improperly used his post-arrest silence as substantive evidence of guilt, in violation of his Fifth Amendment privilege against self-incrimination. As a preliminary matter, the court of appeals held that peti tioner's self-incrimination claim was reviewable only for plain error. Id. at 6a-7a. The court of appeals noted that, "[a]lthough [petitioner's counsel] timely objected to each of the prosecutor's references to [petitioner's] post-arrest silence, the trial court sustained all of those objections, and the trial court's instructions to the jury made it clear that the jury was not to consider any of the challenged remarks." Id. at 6a. The court of appeals further noted that "[petitioner's] counsel never took ex ception to the district court's handling of his objections, and, significantly, [petitioner] never requested that the district court declare a mistrial." Id. at 7a. "Thus," the court of appeals reasoned, "[petitioner] effectively re ceived all of the relief that he requested from the dis trict court." Ibid. "When a defendant asks this court to reverse a conviction under these circumstances," the court of appeals concluded, "we consider the challenged comments under the plain error standard." Ibid.

Applying that standard, the court of appeals then held that the references at trial to petitioner's silence did not constitute plain error. Pet. App. 8a-13a. With regard to the Fifth Amendment privilege against self- incrimination, the court observed that "[n]o published decision of this court has addressed whether the prose cution can, at trial, introduce substantive evidence that the defendant remained silent after he was arrested and taken into custody, but before he was given the Miranda warnings." Id. at 11a. The court further observed that "there is a split among the other federal circuits as to whether a prosecutor's use of a defendant's post-arrest, pre-Miranda silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-in crimination." Id. at 12a. The court of appeals con cluded, however, that it "need not decide this constitu tional question today" because, even assuming that there was error, petitioner could not establish that any error was plain. Id. at 13a. The court explained that "this circuit's law remains unsettled and the other fed eral circuits have reached divergent conclusions on this issue." Ibid.1

4. The court of appeals denied petitioner's petition for rehearing en banc without recorded dissent. Pet. App. 16a-17a.

ARGUMENT

Petitioner contends (Pet. 9-17) that the references at trial to his silence after he was arrested but before he received warnings under Miranda v. Arizona, 384 U.S. 436 (1966), violated his Fifth Amendment privilege against self-incrimination, and that the court of appeals' decision conflicts with decisions of other courts of ap peals (and state courts of last resort). Although some courts of appeals have disagreed about whether the gov ernment may use a defendant's post-arrest, pre-warn ings silence as substantive evidence of guilt, this case would not be an appropriate vehicle for considering that issue. The court of appeals did not decide whether the references to petitioner's silence violated his Fifth Amendment privilege, because it concluded that any error was not plain. Petitioner does not contest the court of appeals' determination that he did not properly preserve his claim of error (and that his claim was reviewable only for plain error). Petitioner also does not contend, nor can he show, that, even under the rulings of the courts of appeals on which he relies, the district court committed reversible plain error. Accordingly, this case does not implicate the asserted circuit conflict, and further review is not warranted.

1. a. In Miranda v. Arizona, supra, this Court held that, absent specified warnings, the government gener ally may not introduce statements taken in custodial interrogation as part of its case in chief. In Doyle v. Ohio, 426 U.S. 610 (1976), the Court considered a prose cutor's impeachment of the defendant's testimony at trial with the fact that the defendant had remained si lent, and failed to provide the same story, after receiving Miranda warnings following his arrest. The Court held that the prosecution's use of the defendant's post-warn ings silence was "fundamentally unfair and a deprivation of due process." Id. at 618. The due process violation arose, the Court explained, because Miranda warnings contain implicit assurances that a defendant's exercise of his "right to remain silent" will not carry with it a penalty. Ibid.

In Jenkins v. Anderson, 447 U.S. 231 (1980), the Court held that the Fifth Amendment privilege against self-incrimination and the right to due process were not violated when a prosecutor impeached a testifying de fendant with his pre-custody, pre-warnings silence. Id. at 238-239. The Court concluded that Doyle was inap- posite because "no governmental action induced [the defendant] to remain silent." Id. at 240. In Fletcher v. Weir, 455 U.S. 603 (1982) (per curiam), the Court ap plied the same analysis to a due process challenge in volving impeachment with post-arrest, pre-warnings silence. The Court explained that, "[i]n the absence of the sort of affirmative assurances embodied in Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand." Id. at 607.

b. This Court's decisions do not address the question whether, consistent with the Fifth Amendment privilege against self-incrimination, the prosecution may present evidence or argument concerning a defendant's post- arrest, pre-warnings silence as part of its case in chief. The courts of appeals to have addressed the issue have reached varying conclusions. Three circuits have held that the admission of evidence of such silence does not violate the Constitution. See United States v. Frazier, 408 F.3d 1102, 1109-1111 (8th Cir. 2005), cert. denied, 546 U.S. 1151 (2006); United States v. Rivera, 944 F.2d 1563, 1568 & n.12 (11th Cir. 1991); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985), cert. denied, 474 U.S. 1081 (1986). Three other circuits, however, have held that the admission of evidence of such silence, as substantive evidence of guilt, violates the Fifth Amendment privilege against self-incrimination. See United States v. Velarde-Gomez, 269 F.3d 1023, 1028- 1030 (9th Cir. 2001) (en banc); United States v. Moore, 104 F.3d 377, 384-389 (D.C. Cir. 1997); United States v. Hernandez, 948 F.2d 316, 322-324 (7th Cir. 1992).2 In two of those cases, the courts of appeals ultimately con cluded that any error was harmless, see Moore, 104 F.3d at 389-390; Hernandez, 948 F.2d at 324-325; in the other, the court of appeals determined that the error was not harmless, because the government "used the testi mony about [defendant's] silence as its principal means of meeting its burden on the critical element of knowl edge" and the remaining evidence was "not so strong," Velarde-Gomez, 269 F.3d at 1035.3

2. This case would not be an appropriate vehicle for resolving the disagreement in the courts of appeals about whether the government may introduce evidence of a defendant's post-arrest, pre-warnings silence in its case in chief.

a. As a preliminary matter, the court of appeals in this case did not decide whether the references to peti tioner's silence violated his Fifth Amendment privilege against self-incrimination. See Pet. App. 13a (conclud ing that the court "need not decide th[at] constitutional question today"). That is because it found that peti tioner had failed sufficiently to preserve any challenge to those references. The court explained that the trial judge had sustained defense counsel's objections to the reference and that defense counsel "never took excep tion to the district court's handling of his objections." Id. at 7a. As a result, petitioner's claim-unlike the claims of the defendants in most of the cases he cites-is reviewable only for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732-733 (1993).4

Under the plain-error standard, petitioner would be entitled to relief only if he could show that (1) there was error; (2) the error was plain; (3) the error affected his substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-467 (1997). The court of appeals concluded that, under the second prong of the plain-error standard, pe titioner could not establish that any error was plain, because the court of appeals' law on the issue is unset tled and other courts of appeals had reached different conclusions-and, as a result, the court did not decide whether there was constitutional error in the first place. See Pet. App. 13a. This Court does not ordinarily con sider questions not passed upon by the court below, see, e.g., Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 697 (1984); California v. Taylor, 353 U.S. 553, 557 n.2 (1957), and petitioner offers no reason for deviating from that practice here.

b. Petitioner does not contest the court of appeals' determination that his claim was reviewable only for plain error. Instead, he contends only that the court of appeals erred by concluding that, under the second prong of the plain-error standard, any error was plain, reasoning that "the Fifth Circuit already has squarely decided that prosecutorial comment at trial on a defen dant's post-arrest, pre-Miranda silence is impermissi ble." Pet. 15. The case petitioner cites for that proposi tion, however, is inapposite. In United States v. Imp- son, 531 F.2d 274 (1976), the Fifth Circuit held that a prosecutor had improperly elicited testimony from an officer that a defendant was silent after he was arrested (but before he received Miranda warnings). Id. at 278- 279. That holding, however, appears to have rested on evidentiary, not constitutional, grounds. See id. at 279 (noting that the defendant's silence "lacked significant probative value and under these circumstances any ref erence to his silence carried with it an intolerably preju dicial impact"). Impson, moreover, predated this Court's decisions in Jenkins and Fletcher, and the Fifth Circuit declined to follow it in a subsequent case on the ground that it "refused to recognize the difference" be tween pre- and post-Miranda silence. United States v. Musquiz, 45 F.3d 927, 930-931 (5th Cir.), cert. denied, 516 U.S. 808 (1995).5

Notably, the parties fully briefed the issue of the precedential value of Impson before the court of ap peals, see Gov't C.A. Br. 12 n.3; Pet. C.A. Reply Br. 5-7, 10-11, and that court evidently concluded that Impson did not decide the question presented here. To the ex tent that petitioner contends otherwise, this Court should defer to the court of appeals' interpretation of its own precedent. Cf. Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam) (noting that this Court does not sit to resolve intracircuit conflicts).

c. Even if petitioner could show that the court of appeals erred by concluding that, under the second prong of the plain-error standard, any error was plain, this case would not be an appropriate vehicle for review of the underlying question whether there was error in the first place, because petitioner does not contend, and in any event cannot show, that any error either affected his substantial rights or seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Johnson, 520 U.S. at 466-467. In this case, the gov ernment presented "overwhelming" and "essentially uncontroverted" evidence of petitioner's guilt. United States v. Cotton, 535 U.S. 625, 633 (2002); see, e.g., United States v. Wiley, 29 F.3d 345, 349 (8th Cir.) (de clining to reverse based on repeated references to the defendant's post-warnings silence, on the ground that "the government's evidence was overwhelming"), cert. denied, 513 U.S. 1005 (1994). Specifically, the govern ment's evidence showed that petitioner was the driver and only occupant of the vehicle; that at least one of the guns was found next to the driver's seat, within peti tioner's reach; that petitioner told one of the arresting officers that he was in the process of buying the vehicle; that petitioner later attempted to claim all of the prop erty from the vehicle; and that petitioner told the officer at the station that he knew that the guns could not be returned to him. Pet. App. 2a-3a. The court of appeals noted in rejecting petitioner's challenge to the suffi ciency of the evidence that the government's evidence "was easily sufficient for a jury to conclude that the gov ernment satisfied its burden of proof," id. at 14a, and, in fact, the evidence cleared a much higher threshold as well.

In addition, petitioner cannot establish that he suf fered any prejudice from the references at trial to his post-arrest, pre-warnings silence, because the trial judge took sufficient curative action to prevent the jury from considering evidence of that silence as substantive evidence of guilt. On each occasion, the trial judge sus tained an objection either to a question that would have solicited a response concerning petitioner's silence, or to a statement by the prosecutor concerning that silence. See Pet. App. 5a-6a. The trial judge also instructed the jury that it should disregard any question to which the judge had sustained an objection and that statements of counsel should not be treated as evidence. See ibid.

Accordingly, even if the admission of evidence of a defendant's post-arrest, pre-warnings silence would or dinarily violate the defendant's Fifth Amendment privi lege, no error occurred here, because jurors are pre sumed to follow their instructions. See Richardson v. Marsh, 481 U.S. 200, 211 (1987). At a minimum, the trial judge's curative actions suggest that any prejudice that petitioner suffered from the references to his silence was slight-and that any error was thus harmless. See, e.g., United States v. One Star, 465 F.3d 828, 832-833 (8th Cir. 2006) (holding that admission of evidence of the defendant's post-warnings silence was harmless in light of, inter alia, "the district court's quick sua sponte cau tionary response"). Even under the rule of the courts of appeals on which he relies, therefore, petitioner cannot show that the district court committed reversible plain error. Because the court of appeals did not decide whether there was error in this case, and because peti tioner could not benefit from a holding that it is error to admit evidence concerning a defendant's post-arrest, pre-warnings silence, review of that question in this case is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
JOHN-ALEX ROMANO
Attorney

SEPTEMBER 2007

1 The court of appeals also rejected petitioner's claim that the refer ences at trial to his post-arrest silence violated his Fifth Amendment right to due process. Pet. App. 8a-10a. The court of appeals noted that, in Doyle v. Ohio, 426 U.S. 610 (1976), this Court held that the Due Process Clause prohibits the use of a defendant's silence in the wake of Miranda warnings to impeach his trial testimony. Pet. App. 10a. The court of appeals concluded, however, that, "irrespective of whether the defendant testifies at trial, the rationale of Doyle applies only to post- Miranda silence." Ibid. Petitioner does not renew his due process claim in the petition. See Pet. 3 n.2.

2 Three other circuits have held that evidence of a defendant's pre- arrest silence may not be admitted as substantive evidence of guilt. See Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.), cert. denied, 531 U.S. 1035 (2000); United States v. Burson, 952 F.2d 1196, 1200-1201 (10th Cir. 1991), cert. denied, 503 U.S. 997 (1992); Coppola v. Powell, 878 F.2d 1562, 1567-1568 (1st Cir.), cert. denied, 493 U.S. 969 (1989).

3 Petitioner correctly notes (Pet. 13-14) that state courts have also not reached consistent results on the admissibility of post-arrest, pre- warnings silence. In many of the cases on which petitioner relies, how ever, the courts either relied on state constitutional provisions or evi dentiary rules or found any federal constitutional error to be harmless. See, e.g., People v. Quintana, 665 P.2d 605, 609-610 (Colo. 1983) (evi dence was not relevant under state evidentiary rule); State v. Graves, 27 S.W.3d 806, 811-812 (Mo. Ct. App. 2000) (admission of evidence was harmless); Commonwealth v. Turner, 454 A.2d 537, 538-540 (Pa. 1982) (state constitution prohibits admission of evidence even for impeach ment).

4 In Frazier, the admission of evidence of the defendant's post-arrest silence was likewise reviewed only for plain error because the defen dant failed to object to the prosecutor's line of questioning. 408 F.3d at 1111. The defendant thereafter filed a petition for a writ of certiorari raising a similar question to the question presented here (and alleging the same circuit conflict). This Court denied the petition. 546 U.S. 1151 (2006) (No. 05-7207).

5 The other Fifth Circuit case on which petitioner relies (Pet. 10-11, 16), United States v. Edwards, 576 F.2d 1152 (1978), is distinguishable for similar reasons as Impson, and for an additional reason: viz., because the prosecutor not only commented on the defendant's silence at the time of arrest, but also arguably commented on his decision not to testify at trial. See id. at 1155.