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-1
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
2 UNITED STATES V. GOMEZ
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 rebuttal.
The panel rejected the defendant’s contention that the
district court committed reversible error under Fed. R.
Evid. 704(b) and 403, or the Confrontation Clause, by
admitting a special agent’s expert testimony that drug-
trafficking organizations do not use unknowing drug couriers.
The panel held that the prosecutor’s statement during
closing argument that it was the jury’s “duty” to say the
defendant is guilty did not amount to error, where that
statement came immediately after the prosecutor’s statement
that the government has the burden of proof beyond a
reasonable doubt.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GOMEZ 3
Dissenting, Judge Watford wrote that under United States
v. Bushyhead, 270 F.3d 905 (9th Cir. 2001), the defendant’s
statement that he could not speak to officers because his
“family will get killed” should have been excluded, even as
impeachment evidence.
COUNSEL
Harini P. Raghupathi, Federal Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.
Kyle W. Hoffman (argued), David P. Curnow, and Bruce R.
Castetter, Chief, Assistant United States Attorneys, Appellate
Section, Criminal Division, and Laura E. Duffy, United States
Attorney, San Diego, California, for Plaintiff-Appellee.
OPINION
GRABER, Circuit Judge:
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 (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.
4 UNITED STATES V. GOMEZ
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:
[Agent Steven Fuentes]: Okay, do you
understand your rights, yes or no?
Gomez: Uh-hmm.
Fuentes: ‘kay. Do you want to speak with us
and say your story?
[5 second pause]
Gomez: Uhmm. Mmm, I can’t talk.
Fuentes: Uh, no, you can’t—why can’t you
talk? Just—what?
Gomez: Because, no.
Fuentes: You don’t, don’t want to talk?
Gomez: No, it’s that no, I can’t talk. It . . .
it’s my family, you see.
Fuentes: Say again?
Gomez: It’s my family.
UNITED STATES V. GOMEZ 5
Fuentes: Your family?
Gomez: Yes. It’s, I’m just going to say
something. Okay?
Fuentes: [unintelligible]
Gomez: Listen, listen, listen, listen, listen
[unintelligible] . . . I can’t say anything
because my family . . . my family will get
killed. Okay?
Fuentes: Okay, [unintelligible], so you don’t,
you don’t want to talk?
Gomez: I don’t want to talk.
Fuentes: Okay, that’s fine. It’s your right.
(Ellipses and brackets in transcription.) No further
questioning occurred.
The government indicted Defendant on one count of
importation of methamphetamine, in violation of 21 U.S.C.
§§ 952 and 960. Before trial, Defendant moved to suppress
his post-arrest statement that “I can’t say anything because
my family . . . my family will get killed.” The district court
held that the government could not introduce the statement
during its case-in-chief, because Defendant invoked his
Miranda rights when he first said “I can’t talk,” but that the
government could introduce the statement during rebuttal, as
impeachment, if appropriate. At trial, Defendant testified that
he was unaware that the drugs were in the car. During the
government’s rebuttal, Agent Fuentes testified that Defendant
6 UNITED STATES V. GOMEZ
“basically told me he could not talk because they were going
to kill his family.”
The jury convicted Defendant. The district court
sentenced him to 135 months’ imprisonment. Defendant
timely appeals his conviction.
STANDARDS OF REVIEW
We review de novo whether the prosecutor’s use of a
defendant’s silence violated the Constitution. United States
v. Caruto, 532 F.3d 822, 827 (9th Cir. 2008). We review for
abuse of discretion the admission of expert testimony. United
States v. Sepulveda-Barraza, 645 F.3d 1066, 1070 (9th Cir.
2011). We review de novo alleged violations of the
Confrontation Clause, United States v. Preston, 706 F.3d
1106, 1119 (9th Cir. 2013), and the interpretation of the
Federal Rules of Evidence, United States v. Urena, 659 F.3d
903, 908 (9th Cir. 2011), cert. denied, 132 S. Ct. 1608 (2012).
If the defendant fails to object, we review for plain error.
United States v. Hayat, 710 F.3d 875, 893 (9th Cir. 2013).
DISCUSSION
A. Post-Arrest Statement
Due process requires that a defendant’s silence after
receiving Miranda warnings not be used against him or her at
trial. Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the
defendants had remained silent when arrested by the police
and given Miranda warnings but, at trial, they testified for the
first time that they had been framed. Id. at 612–13. The
prosecutors cross-examined the defendants about their
previous silence, suggesting that, if the defendants truly had
UNITED STATES V. GOMEZ 7
been framed, they would have said so at the time of their
arrest. Id. at 613–14. The Supreme Court reversed, holding
that “the use for impeachment purposes of petitioners’
silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the Fourteenth
Amendment.” Id. at 619.
That rule—that a defendant’s silence cannot be used
against him or her—differs from the rule concerning a
defendant’s voluntary statements. Statements obtained in
violation of Miranda generally are inadmissible in the
government’s case-in-chief. New York v. Harris, 495 U.S.
14, 20 (1990). But a defendant’s voluntary statements—even
if obtained in violation of Miranda—are admissible as
impeachment evidence. See Oregon v. Elstad, 470 U.S. 298,
307 (1985) (“[T]he Miranda presumption, though irrebuttable
for purposes of the prosecution’s case in chief, does not
require that the statements and their fruits be discarded as
inherently tainted. Despite the fact that patently voluntary
statements taken in violation of Miranda must be excluded
from the prosecution’s case, the presumption of coercion does
not bar their use for impeachment purposes on cross-
examination.”); Harris v. New York, 401 U.S. 222, 224
(1971) (“It does not follow from Miranda that evidence
inadmissible against an accused in the prosecution’s case in
chief is barred for all purposes, provided of course that the
trustworthiness of the evidence satisfies legal standards.”); id.
at 226 (“The shield provided by Miranda cannot be perverted
into a license to use perjury by way of a defense, free from
the risk of confrontation with prior inconsistent utterances.
We hold, therefore, that petitioner’s credibility was
appropriately impeached by use of his earlier conflicting
statements.”). Put simply, “Doyle does not apply to cross-
examination that merely inquires into prior inconsistent
8 UNITED STATES V. GOMEZ
statements.” Anderson v. Charles, 447 U.S. 404, 408 (1980)
(per curiam).
Here, the prosecution introduced as impeachment
evidence Defendant’s statement—that he feared for his
family’s safety—not the fact of his silence. Under the
Supreme Court precedent just discussed, Defendant’s
statement is admissible for that purpose.
There are two important limitations on the government’s
ability to impeach a defendant with prior inconsistent
statements taken in violation of Miranda. First, the statement
must have been voluntary. United States v. Makhlouta,
790 F.2d 1400, 1404 (9th Cir. 1986). Here, Defendant does
not dispute, and we easily conclude, that his statement was
voluntary. Defendant said: “I’m just going to say something.
Okay?” When Agent Fuentes started to speak, Defendant
interrupted: “Listen, listen, listen, listen, listen
[unintelligible] . . . I can’t say anything because my family
. . . my family will get killed. Okay?”1
1
We recognize that the government’s ability to use a defendant’s
statements as impeachment evidence may decrease the deterrent effect of
Miranda on continued government questioning after invocation of the
right to remain silent. But the Supreme Court long ago considered that
argument and rejected it. See Harris, 401 U.S. at 225 (“Assuming that the
exclusionary rule has a deterrent effect on proscribed police conduct,
sufficient deterrence flows when the evidence in question is made
unavailable to the prosecution in its case in chief.”). The Court also has
noted that “[i]f, in a given case, the officer’s conduct amounts to an abuse,
that case . . . may be taken care of when it arises measured by the
traditional standards for evaluating voluntariness and trustworthiness.”
Oregon v. Hass, 420 U.S. 714, 723 (1975). The clarifying questions in
this case were not an abuse.
UNITED STATES V. GOMEZ 9
The second relevant limitation is that, in order to be
admissible, the statement must be “arguably” inconsistent
with the defendant’s testimony at trial. Id. Again, Defendant
does not dispute, and we conclude, that his statement that he
feared for his family’s safety was arguably inconsistent with
his trial testimony that he lacked knowledge of the drugs.
The prosecution asked the jury to draw the inference that
Defendant’s family in Mexico faced danger only if, in fact, he
had knowledge of the drugs when he left Mexico, and that,
accordingly, his denial of knowledge was not credible.2
We also stress that the prosecution sought to impeach
Defendant not for his failure to talk to Agent Fuentes but for
his stated reason for declining to talk. It would be a very
different case had the prosecution argued that Defendant’s
silence itself undermined his credibility or had Agent Fuentes
testified that Defendant said only, “I can’t talk.” Those
hypothetical situations would fall clearly within the scope of
Doyle. Because the impeachment evidence here concerned
Defendant’s statement, however, Doyle’s rule does not apply.
See Wainwright v. Greenfield, 474 U.S. 284, 292 (1986)
(“The point of the Doyle holding is that it is fundamentally
unfair to promise an arrested person that his silence will not
be used against him and thereafter to breach that promise by
using the silence to impeach his trial testimony.” (emphases
added)).
2
Defendant’s earlier statement would not have been admissible if, for
example, Defendant had claimed the defense of duress and testified at trial
that he smuggled the drugs because he feared for his family’s safety.
Without an arguable inconsistency, there is nothing to impeach, and the
government could not have introduced the earlier consistent statement.
10 UNITED STATES V. GOMEZ
For similar reasons, we reject Defendant’s argument that,
because the statement was a description of why he refused to
talk, the Constitution necessarily prohibits the use of the
statement. Defendant leans heavily on our decisions in
United States v. Bushyhead, 270 F.3d 905 (9th Cir. 2001), and
Hurd v. Terhune, 619 F.3d 1080 (9th Cir. 2010). In those
cases, we held only that, when the prosecution attempts to use
a defendant’s “explanatory refusal” in its case-in-chief, as
affirmative evidence of guilt or consciousness of guilt, the
Fifth Amendment bars the introduction of the explanation just
as it bars the introduction of the silence. Bushyhead,
270 F.3d at 911–13; Hurd, 619 F.3d at 1084, 1089. But
context matters. Indeed, in Doyle itself, the Supreme Court
noted that even a defendant’s silence can be admissible as
impeachment, depending on the context: “It goes almost
without saying that the fact of post-arrest silence could be
used by the prosecution to contradict a defendant who
testifies to an exculpatory version of events and claims to
have told the police the same version upon arrest.” 426 U.S.
at 619 n.11. Similarly, here, when Defendant testified in a
manner arguably inconsistent with his earlier explanation, the
Constitution does not prohibit the use of his explanation
during rebuttal only, as impeachment evidence. See, e.g.,
Harris, 401 U.S. at 224 (“It is one thing to say that the
Government cannot make an affirmative use of evidence
unlawfully obtained. It is quite another to say that the
defendant can . . . provide himself with a shield against
contradiction of his untruths.” (internal quotation marks
omitted)); see also Anderson, 447 U.S. at 408 (“Doyle does
not apply to cross-examination that merely inquires into prior
inconsistent statements.”). Bushyhead and Hurd thus do not
change our analysis, because those cases concerned the use of
a statement during the case-in-chief as affirmative evidence
UNITED STATES V. GOMEZ 11
of guilt, whereas here we analyze the prosecutor’s use of the
statement during rebuttal and only as impeachment evidence.
We are confident in our conclusion that the holdings of
Bushyhead and Hurd did not concern the use of an
“explanatory refusal” as impeachment, not only because that
issue was not presented in those cases, but also because such
a broad reading would contradict Doyle itself. As just noted,
Doyle recognized that, if a defendant testified that he had not
remained silent, the prosecutor’s use of his silence would be
fair game on rebuttal to undermine the defendant’s
credibility. Contradiction counts. Yet Defendant’s broad
reading of Bushyhead and Hurd would preclude the use of
“silence” (however broadly defined) for any purpose. We
decline to extend the reach of our previous cases beyond their
facts in a manner that would contradict Supreme Court
precedent.
Our holding is fully consistent with Supreme Court
principles. A voluntary statement that, for instance, “I
committed the murder,” is admissible during rebuttal as
impeachment evidence if the defendant testifies at trial that “I
saw John Doe commit the murder.” A contrary rule “would
pervert the constitutional right into a right to falsify free from
the embarrassment of impeachment evidence from the
defendant’s own mouth.” Hass, 420 U.S. at 723. We see no
reason to apply a different principle if the defendant
happened to make the statement as an explanation for a
refusal to talk: “I don’t want to talk because I committed the
murder.” The Constitution protects the statement “I
committed the murder” from use as affirmative evidence of
guilt in the prosecution’s case-in-chief. But, if the Defendant
testifies to the contrary, use of the prior inconsistent
statement as impeachment evidence during rebuttal promotes
12 UNITED STATES V. GOMEZ
what the Supreme Court in Doyle recognized as an important
value: “the truth-seeking function of a trial.” Doyle,
426 U.S. at 617 n.7; see also Harris, 401 U.S. at 224 (“There
is hardly justification for letting the defendant affirmatively
resort to perjurious testimony in reliance on the
Government’s disability to challenge his credibility.”
(internal quotation marks and alteration omitted)).
Because Defendant’s statement was voluntary and
arguably inconsistent with his trial testimony, and because the
prosecution used the statement only as impeachment during
rebuttal, we hold that the district court did not err in admitting
Agent Fuentes’ testimony.
B. Testimony by Special Agent Hector Banos
At trial, Special Agent Hector Banos testified as an expert
witness on several topics, including his expert opinion that
drug-trafficking organizations do not use unknowing drug
couriers. Defendant argues that the admission of Agent
Banos’ testimony violated Federal Rule of Evidence 704(b),
Federal Rule of Evidence 403, and the Confrontation Clause.
We disagree.
The expert testimony here did not violate Rule 704(b),
because the prosecutor’s questions “only evoked expert
testimony as to Agent [Banos’] experience with drug
traffickers and not any ‘explicit opinion’ of [Defendant’s]
state of mind or knowledge of his transportation of drugs.”
United States v. Murillo, 255 F.3d 1169, 1178 (9th Cir. 2001),
overruled on other grounds as recognized by United States v.
Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007). Although
Agent Banos answered many questions concerning his
experience, Defendant argues that, because a sole question
UNITED STATES V. GOMEZ 13
did not include the limiting phrase “in your experience,” that
question ran afoul of Rule 704(b). Read in proper context,
however, that question—like all the others—asked for Agent
Banos’ expert opinion, in his experience.
Defendant’s Rule 403 challenge also fails. The district
court is not required to “mechanically recite Rule 403’s
requirements before admitting evidence.” United States v.
Ono, 918 F.2d 1462, 1465 (9th Cir. 1990) (internal quotation
marks omitted). “It is enough that this court can conclude,
based on a review of the record, that the district court
considered Rule 403’s requirements.” Id. In our view, the
hearing transcript shows that the district court fully and
carefully considered all the issues and conducted the
necessary Rule 403 balancing. Nor did the district court err
in its assessment: The evidence was probative and relevant,
and it was not unduly prejudicial.
Defendant’s Confrontation Clause challenge requires
more discussion. In Crawford v. Washington, 541 U.S. 36,
53–54 (2004), the Supreme Court held that the Confrontation
Clause bars the “admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable
to testify, and the defendant had had a prior opportunity for
cross-examination.” Although we have not discussed at
length the Confrontation Clause in the context of a testifying
expert witness, our sister circuits have sketched the broad
contours of the doctrine:
An expert witness’s reliance on evidence that
Crawford would bar if offered directly only
becomes a problem where the witness is used
as little more than a conduit or transmitter for
testimonial hearsay, rather than as a true
14 UNITED STATES V. GOMEZ
expert whose considered opinion sheds light
on some specialized factual situation.
Allowing a witness simply to parrot
“out-of-court testimonial statements of
cooperating witnesses and confidential
informants directly to the jury in the guise of
expert opinion” would provide an end run
around Crawford. United States v.
Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007).
For this reason, an expert’s use of testimonial
hearsay is a matter of degree. The question is
whether the expert is, in essence, giving an
independent judgment or merely acting as a
transmitter for testimonial hearsay. As long
as he is applying his training and experience
to the sources before him and reaching an
independent judgment, there will typically be
no Crawford problem. The expert’s opinion
will be an original product that can be tested
through cross-examination.
United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009)
(one citation omitted); see also United States v. Pablo,
696 F.3d 1280, 1287–89 (10th Cir. 2012) (describing the
doctrine); United States v. Mejia, 545 F.3d 179, 197–99 (2d
Cir. 2008) (same); United States v. Maher, 454 F.3d 13,
19–23 (1st Cir. 2006) (same); United States v. Silva, 380 F.3d
1018, 1019–21 (7th Cir. 2004) (same).
Here, Defendant challenges the following two questions
and answers:
[Prosecutor:] Q. And among the individuals
that you have interviewed, have you
UNITED STATES V. GOMEZ 15
interviewed individuals that have agreed to
smuggle narcotics in exchange for payment?
[Agent Banos:] A. Yes.
Q. And in those interviews, is the payment
relatively small in comparison to the value of
the narcotics being smuggled?
A. Yes.
Defendant argues that Agent Banos conveyed the out-of-court
testimonial statements of his previous interviewees, in
violation of the Confrontation Clause. Because Defendant
did not object on the ground that the questions violated the
Confrontation Clause,3 we review for plain error. Hayat,
710 F.3d at 893. To prevail, Defendant must establish “(1)
error, (2) that was plain, (3) that affected substantial rights,
and (4) that seriously affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v.
Moreland, 622 F.3d 1147, 1158 (9th Cir. 2010) (internal
quotation marks omitted).
The bulk of Agent Banos’ testimony plainly passes
muster. For example, Agent Banos testified that, in his
experience (that is, applying his expertise), drug
organizations do not use unknowing couriers. It does not
matter that his experience or expertise arises in part from his
having heard testimonial statements. See Johnson,
3
Defendant never objected at trial on the ground that the questions
violated the Confrontation Clause, and the only pretrial objection that even
mentioned the Confrontation Clause concerned a separate issue
altogether—notice and discovery under Rule 16.
16 UNITED STATES V. GOMEZ
587 F.3d at 635–36 (“The fact that their expertise was in
some way shaped by their exposure to testimonial hearsay
does not mean that the Confrontation Clause was violated
when they presented their independent assessments to the
jury.”). Defendant wisely does not challenge most of Agent
Banos’ testimony; he challenges only the two questions
quoted above.
The wording of the second question is potentially
problematic: “And in those interviews [by Agent Banos with
individuals who have smuggled drugs for payment], is the
payment relatively small in comparison to the value of the
narcotics being smuggled?” (Emphasis added.) The question
could be understood to query the content of Agent Banos’
previous interviews,4 which would violate the Confrontation
Clause.5 See United States v. Dukagjini, 326 F.3d 45, 59 (2d
Cir. 2003) (holding that introduction of recorded
conversations via an expert’s testimony violated the
Confrontation Clause where no expertise was needed to
understand the conversation). But we need not decide
whether the two disputed questions violated the
Confrontation Clause because, even if they did, the error was
not plain.
4
Taken literally, the question does not actually ask about the content of
the interviews because the payments to which the main part of the
sentence refers did not occur during the interviews. The question more
likely was meant to convey, and did convey, “Did you learn in those
interviews whether payments were relatively small in comparison to the
value of the narcotics being smuggled?”
5
The government argues, in the alternative, that the statements were
neither testimonial nor introduced for the truth of the matter asserted. We
need not decide those issues because, as we explain in text, there was no
reversible error.
UNITED STATES V. GOMEZ 17
The questions called for some level of independent
judgment on the part of Agent Banos, such as an estimation
of the total value of the drugs. See Johnson, 587 F.3d at 635
(“As long as he is applying his training and experience to the
sources before him and reaching an independent judgment,
there will typically be no Crawford problem.”). Even if they
might not have called for a high level of expertise, the
questions were not so clearly in violation of the Confrontation
Clause that the district court should have recognized the
violation sua sponte—particularly because the line between
appropriate expert testimony and inadmissible testimony is
blurry. See, e.g., Pablo, 696 F.3d at 1289 (holding that
admissibility “may turn on phrasing subtleties in the
prosecutor’s questions and the witness’s responses”);
Johnson, 587 F.3d at 635 (holding that “an expert’s use of
testimonial hearsay is a matter of degree”); Maher, 454 F.3d
at 23 (“The dividing line often will not be clear between what
is true background to explain police conduct (and thus an
exception to the hearsay rule and thus an exception to
Crawford) and what is an attempt to evade Crawford and the
normal restrictions on hearsay.”); Dukagjini, 326 F.3d at 59
(holding that “in some cases it may be difficult to discern the
line between permissible and impermissible reliance on
hearsay”).
For similar reasons, any error was harmless. The specific
testimonial statements were neither damning nor of great
force, as in cases in which the testimonial statements pertain
to the defendant directly. See, e.g., Mejia, 545 F.3d at 199
(reversing where the testimonial statements were made by
members of the same gang as the defendant and arose “during
the course of this very investigation”); Lombardozzi, 491 F.3d
at 72 (holding that admission of testimonial statements via an
expert that described the rank of the defendant within a crime
18 UNITED STATES V. GOMEZ
family violated the Confrontation Clause but holding that the
error did not affect the defendant’s substantial rights). There
is no reasonable likelihood that, in the context of the
testimony as a whole, the two isolated questions challenged
on appeal, which concerned persons and activities unrelated
to Defendant’s case, had an effect on the verdict.
In sum, the district court did not commit reversible error
by admitting Agent Banos’ testimony.
C. Prosecutorial Misconduct
At the very end of his closing argument, the prosecutor
stated:
Now, the United States has the burden of
proof beyond a reasonable doubt. Is the
evidence that was presented in this case proof
beyond a reasonable doubt? Absolutely. And
now it’s your duty to say the defendant is
guilty of importing methamphetamine. Thank
you.
Defendant argues that the prosecutor’s statement that it was
the jury’s “duty” to convict Defendant amounted to
prosecutorial misconduct under United States v. Sanchez,
176 F.3d 1214 (9th Cir. 1999). Because Defendant did not
object, we review for plain error. Hayat, 710 F.3d at 893. In
any event, we conclude that there was no error.
Defendant’s argument rests solely on our decision in
Sanchez. In that case, the prosecutor argued:
UNITED STATES V. GOMEZ 19
And I would ask your consideration, as every
jury has done, and that is that after the
marshal’s service has done their duty and the
court has done its duty and lawyers on both
sides have done their duty, that you as jurors
do your duty and well consider this matter and
find these defendants guilty.
Sanchez, 176 F.3d at 1224. We held that, although it is
proper to tell the jury that it is its duty to convict if it
concludes that the defendant is guilty beyond a reasonable
doubt, the prosecutor in Sanchez improperly told the jury,
without qualification, that it was the jury’s duty to convict.
Id. at 1224–25.
Although we held in Sanchez that “[t]here is perhaps a
fine line between a proper and improper ‘do your duty’
argument,” id. at 1225, the prosecutor’s summation here falls
on the proper side of the line. Read in context, the prosecutor
was arguing that, if the jury finds that the prosecution has met
its burden of proving the elements beyond a reasonable doubt,
then it is the jury’s duty to convict. Understood in that way,
the prosecutor’s statement is clearly proper. Indeed, the jury
instructions in this case, taken verbatim from the model jury
instructions, state essentially the same thing, including the
use of the word “duty”: “[I]f after a careful and impartial
consideration of all the evidence, you are convinced beyond
a reasonable doubt that the defendant is guilty, it is your duty
to find the defendant guilty.” Ninth Circuit Model Criminal
Jury Instr. 3.5.
In Sanchez, the prosecutor’s statement strongly implied
that, just as the marshal’s service has a duty to protect the
court, and the court has a duty to preside over the case, and
20 UNITED STATES V. GOMEZ
the lawyers have a duty to present the case, the jury has a
duty to find the defendant guilty. No such improper inference
appears here. The prosecutor did not refer to the “duty” of
any other person, and the prosecutor made the challenged
statement immediately after reminding the jury of the
prosecution’s “burden of proof beyond a reasonable doubt.”
Read in context, the prosecutor’s statement did not amount to
error.
AFFIRMED.
WATFORD, Circuit Judge, 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 (1976), which squarely held
that a defendant’s post-Miranda silence may not be used even
UNITED STATES V. GOMEZ 21
as impeachment evidence. In expanding the reach of Doyle
to include “not merely the silence itself, but the
circumstances of that silence as well,” Bushyhead, 270 F.3d
at 913, we implicitly carried over the full range of protections
Doyle established to this broadened definition of silence.
In my view, this is the only permissible reading of
Bushyhead. Except in recounting the sequence of events at
trial, the opinion did not discuss when or for what purpose the
contested statement was used. See id. at 908–09, 911–12.
Nor is there any doubt that we understood Doyle to be a case
about impeachment, as evidenced by the several references to
impeachment in our summary of, and quotations from, that
case. See id. at 912. Because Doyle was the primary
authority on which we drew to preclude the use of
Bushyhead’s statement at trial, we cannot now plausibly say
that Bushyhead left the present issue undecided. Simply put,
a defendant’s explanation for his refusal to talk receives
protection at all only because Bushyhead equated it with
silence itself. If such explanations are treated as the
equivalent of silence, there is no authority for providing them
with anything less than the full protection Doyle requires.
The majority’s suggestion that this reading of Bushyhead
would contradict Doyle is unpersuasive. Doyle recognized a
narrow exception permitting the government to use post-
Miranda silence to impeach “a defendant who testifies to an
exculpatory version of events and claims to have told the
police the same version upon arrest.” Doyle, 426 U.S. at 619
n.11 (emphasis added). Nothing I have said here about
Bushyhead would affect the availability of that exception,
which turns on whether the defendant has put in issue what
happened at the time of arrest. If Gomez had falsely testified
that he made certain statements to the officers, he would have
22 UNITED STATES V. GOMEZ
opened the door to the use of his silence, along with the
circumstances of that silence, to impeach his account of the
interview. Instead, as in Doyle, the impeachment evidence
was used in this case to undermine the credibility of “the
exculpatory story” itself. Id. at 620 n.11. Thus, applying
Bushyhead to preclude such impeachment is fully consistent
with Doyle’s reasoning.
The government should not have been permitted to use
Gomez’s statement that his “family will get killed” to
impeach his claimed lack of knowledge of the drugs in the
car. The only other evidence tending to prove Gomez’s
knowledge was his status as the car’s sole occupant and
expert testimony suggesting that drug trafficking
organizations do not typically use unknowing couriers to
transport drugs. Because Gomez’s statement was the most
compelling evidence against him, I cannot say the error in
admitting it was harmless beyond a reasonable doubt. See
Neder v. United States, 527 U.S. 1, 15 (1999).