IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-50936
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GUSTAVO LOPEZ-BENITEZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(DR-98-CR-101-1)
_________________________________________________________________
October 15, 1999
Before KING, Chief Judge, and GARWOOD and STEWART, Circuit
Judges,
KING, Chief Judge:*
Defendant-Appellant Gustavo Lopez-Benitez (Lopez) appeals
his conviction for possession with intent to distribute marijuana
in violation of 21 U.S.C. § 841(a)(1), arguing that the district
court erred in (1) denying his motion to suppress, concluding
instead that Border Patrol officers had reasonable suspicion to
stop the vehicle he was driving; (2) denying his motion for
mistrial despite prosecutor questioning regarding Lopez’s post-
arrest silence; and (3) denying his request for jury instructions
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
regarding the knowledge element of his charged crime. We find
that the Border Patrol officers had reasonable suspicion to stop
the vehicle Lopez was driving, but we reverse and remand for a
new trial because we also conclude that prosecutorial misconduct
prejudiced Lopez’s rights to a fair trial. As a result, we do not
address the jury instruction issue.
I.
FACTS & PROCEDURAL HISTORY
Around 11:30 p.m. on February 23, 1998, Border Patrol
officers Troy Meredith and Ignacio Guerra, in a marked Border
Patrol Bronco, were traveling west on Highway 277 between Carrizo
Springs and Eagle Pass. They were approximately 15 miles from the
U.S. border when they saw two eastbound sedans traveling one to
two car lengths apart from one another. Officer Meredith
testified that Highway 277 was a route commonly used by
smugglers, and that he had encountered drug- and alien-smuggling
activity on Highway 277 during his three years of experience
monitoring the road. He affirmed that the area in which the two
sedans were spotted was ranch land, and that sedans were not
ranch traffic. He also testified that shift changes occurred
between 11:00 and midnight, and that the checkpoint on Highway
277 had closed at 8:00 p.m. At the time he and Officer Guerra
spotted the two vehicles, the checkpoint on Highway 57, another
road leading away from the border, was open.
2
The officers turned around and followed the rear vehicle, a
Chevrolet Cavalier. A license-plate check of that vehicle showed
it was registered in Austin, Texas. The officers then passed the
Cavalier and pulled in between the two cars. Officer Meredith
testified that their pulling in between the two cars caused the
rear vehicle to slow down and drop back by as much as half a
mile. A license-plate check of the car in front of them, a Ford
Escort, revealed it was also registered in Austin. Highway 57,
not Highway 277, is the most direct route to Austin.
The officers stopped the Escort to check the immigration
status of the vehicle’s occupants. After determining the two
occupants were in the U.S. legally, the officers left to catch up
to the Cavalier, which had since passed them, to conduct an
immigration check. The driver of the Cavalier was Lopez, who, in
response to Officer Meredith’s query regarding his immigration
status, said he was in the country illegally. The officers
immediately put Lopez under arrest, escorted him to their patrol
vehicle, secured him in the back seat, and read him his rights.
While Lopez was exiting the Cavalier, the officers detected
a smell, which they identified as the smell of marijuana, coming
from the vehicle. Although Lopez orally consented to a search of
the car, the officers nonetheless called for a K-9 unit in order
to have a dog inspect the vehicle. The dog alerted to the trunk
of the car. The trunk was opened with a key, and the officers
found sugar sacks painted black containing 51.8 kilos of
marijuana.
3
A suppression hearing was held on July 6, 1998. The court
cited a number of factors as supporting the reasonableness of the
officers’ suspicions that the vehicles’ occupants were engaged in
criminal activity, including officer experience, the proximity to
the border, the nature of the road on which the stop was made,
the hour, that the vehicles were spotted between shift changes,
that both vehicles were registered in Austin and appeared to be
traveling in tandem, and that the vehicles were traveling on a
road on which the checkpoint was closed, rather than on the road
that was the more direct route to Austin but on which the
checkpoint was open. As a result, trial judge denied Lopez’s
motion to suppress the marijuana.
The trial followed. During the prosecutor’s cross-
examination of Lopez, questions were posed regarding whether
Lopez had been read his rights upon arrest, whether he had asked
for a lawyer, and whether he had had occasion to tell his story
to the Border Patrol officers. Objection to each of these
questions was sustained. Lopez’s counsel moved for mistrial on
the ground that the prosecutor had violated Lopez’s
constitutional rights to counsel and to remain silent. This
motion was denied.
The jury found Lopez guilty. A motion for a new trial was
denied. Lopez was sentenced to 37 months’ imprisonment, three
years’ supervised release, and a special assessment of $100. He
timely appeals.
4
II.
THE VEHICLE STOP
In reviewing a denial of a motion to suppress, we accept the
district court’s findings of fact unless clearly erroneous, and
review its conclusion as to the constitutionality of the law
enforcement action de novo. See Ornelas v. United States, 517
U.S. 690, 699 (1996); United States v. Chavez-Villareal, 3 F.3d
124, 126 (5th Cir. 1993). The evidence presented at the pre-trial
suppression hearing must be viewed in the light most favorable to
the prevailing party, here the government. See United States v.
Villalobos, 161 F.3d 285, 288 (5th Cir. 1998).
Lopez maintains that the district court erred in concluding
reasonable suspicion existed to justify pulling over the vehicle
he was driving, and therefore it erred in denying his motion to
suppress the marijuana discovered in the trunk. He first points
to the absence of evidence allowing officers to be reasonably
certain that the vehicle had recently crossed the border, arguing
that under United States v. Melendez-Gonzalez, 727 F.2d 407, 411
(5th Cir. 1984), the lack of such evidence required the court to
assess the remaining factors with care. He argues that those
other factors are insufficient to justify a stop.
Under United States v. Brignoni-Ponce, 422 U.S. 873 (1975),
an officer on roving border patrol may stop and briefly
investigate a vehicle and its occupants if the officer is “aware
of specific articulable facts, together with [the] rational
inferences from those facts, that reasonably warrant suspicion
5
that the vehicles contain aliens who may be illegally in the
country.” 422 U.S. at 884. Each case turns on the totality of the
circumstances. See id. at 885 n.10; United States v. Cortez, 449
U.S. 411, 421-22 (1981). Based on an assessment of those
circumstances, “the detaining officers must have a particularized
and objective basis for suspecting the particular person stopped
of criminal activity.” Id. at 417-18. Factors that may be taken
into account include: (1) the characteristics of the area in
which the officers encounter the vehicle; (2) the detaining
officers’ previous experience with criminal activity; (3) the
area’s proximity to the border; (4) the usual traffic patterns on
the road in question; (5) information about recent illegal
trafficking in aliens or narcotics in the area; (6) the
appearance of the stopped vehicle; (7) the behavior of the
vehicle’s driver; and (8) the number, appearance, and behavior of
the passengers. See Brignoni-Ponce, 422 U.S. at 884-85; United
States v. Nichols, 142 F.3d 857, 865 (5th Cir.), cert. denied,
119 S. Ct. 621 (1998) (quoting United States v. Inocenio, 40 F.3d
716, 722 (5th Cir. 1994)).
Overall, the circumstances in this case suggest that the
district court concluded correctly that officers’ suspicions were
reasonable. Lopez’s sedan was spotted in close proximity to
another sedan approximately fifteen miles from the border – not a
“substantial distance,” Inocencio, 40 F.3d at 722 n.7, by any
measure – in an area that was primarily ranch land. Cf.
Villalobos, 161 F.3d at 290 (spotting two cars in close proximity
6
on a sparsely traveled road does not itself justify a stop, but
may raise suspicions). The sedans were spotted on one of the two
main roads leading away from the border. That road was a known
smuggling route. Cf. id., 161 F.3d at 289 (“[T]he possibility
that Villalobos could have been an innocent traveler from
Presidio or Shafter does not negate the fact that the area
through which he was driving was both very close to the border
and very heavily traversed by border traffic.”); Nichols, 142
F.3d at 870 (stating that road’s reputation as smuggling route
adds to reasonableness of suspicion). The two sedans were spotted
at 11:30 p.m. when there was little to no other traffic on the
road. Cf. United States v. Lujan-Miranda, 535 F.2d 327, 329 (5th
Cir. 1976) (traveling at an unusual time of day may not itself
justify a stop, but is a permissible consideration). Lopez’s
reaction to the officers’ pulling in between the two sedans could
legitimately raise suspicions. Cf. Villalobos, 161 F.3d at 291
(“[N]oticeable deceleration in the presence of a patrol car can
contribute to reasonable suspicion . . . . Such deceleration may
be additionally suspicious when the car was not speeding to begin
with . . . .”). When these observations were combined with the
fact that two vehicles registered in Austin were traveling one to
two car lengths apart on a road that did not lead directly to
that city at a time when the checkpoint was closed on the road
taken but open on the more direct route,1 Officer Meredith, in
1
In Lopez-Valdez, 178 F.3d at 287, this Court found that
presence on FM2644 at 8:30 a.m. was insufficient to infer that
the driver was avoiding a checkpoint, given the government
7
light of his three years’ experience, was reasonably suspicious
that the vehicles’ occupants were engaged in criminal activity.
III.
PROSECUTOR QUESTIONING DURING CROSS-EXAMINATION
The next issue before us is whether prosecutor questions
posed during cross-examination prejudiced Lopez’s rights to a
fair trial, rendering the district court’s denial of Lopez’s
mistrial motion in error. We review a district court’s denial of
motions for mistrial for abuse of discretion. United States v.
Hernandez-Guevara, 162 F.3d 863, 869 (5th Cir. 1998), cert.
denied, 119 S. Ct. 1375 (1999).
The questions at issue came at the end of the prosecutor’s
cross-examination:
Q: Were you read your rights when you were arrested?
Defense Counsel: Objection, Your Honor, completely
irrelevant.
The Court: Sustained.
Q: Were you arrested?
A: By immigration, yes.
Q: And you asked to speak to a lawyer right away, didn’t
you?
Defense Counsel: Objection, Your Honor, violates –
The Court: Sustained.
Q: Did you have occasion to tell the border patrol what
you told us in court today?
Defense Counsel: Objection, Your Honor. May we
approach, please?
The Court: No. Objection sustained.
introduced no evidence that it was unusual to see traffic on that
road at that time. Here, the vehicles’ Austin registration
contributed to the inference that a checkpoint was being avoided.
Officer Meredith also testified that there “wasn’t any other
traffic on the highway that time of night.”
8
After defense counsel moved for a mistrial, which the court
denied, the prosecutor stated he had no further questions.
Lopez argues that these questions were in clear violation of
the principles laid out in Doyle v. Ohio, 426 U.S. 610 (1976), in
that they represented the use of Lopez’s post-arrest, post-
Miranda1 silence for impeachment purposes. That objections were
sustained before Lopez could respond is of no moment because the
mere posing of these questions seriously undermined Lopez’s
defense. As a result, the prosecutor’s behavior did not
constitute harmless error.
The Government contends first that the questions did not
violate Doyle. They were intended to show Lopez was not
unsophisticated, as his testimony suggested, or were ambiguous in
that they did not clearly regard Lopez’s post-arrest, post-
Miranda silence. The Government further argues that even if the
questions violated Doyle, mere posing of them was harmless error.
In an apparent attempt to ensure the prosecutor adhered to
the Doyle rule, defense counsel filed a motion in limine, which
requested that the court order the prosecutor “to refrain from
commenting before the jury on, alluding before the jury to, or
eliciting testimony from any of the witnesses regarding
Defendant’s post-arrest silence or his failure to make a post-
arrest sworn statement.” Granting this motion, the court allowed
the prosecutor to raise only Lopez’s statement that he was in the
country illegally. In light of this order, rather than assessing
1
Miranda v. Arizona, 384 U.S. 436 (1966).
9
the prosecutor’s behavior within a Doyle framework, we analyze
the challenged questions in terms of the closely analogous claim
of prosecutorial misconduct. Cf. Greer v. Miller, 483 U.S. 756
(1987) (considering whether defendant was denied a fair trial due
to prosecutorial misconduct after determining that no Doyle
violation had occurred).2
The Supreme Court has made clear that the “touchstone of due
process analysis” in cases involving prosecutorial misconduct is
the fairness of the trial. See Smith v. Phillips, 455 U.S. 209,
219 (1982). Accordingly, our “task in reviewing a claim of
prosecutorial misconduct is to decide whether the misconduct
casts serious doubt upon the correctness of the jury’s verdict.”
United States v. Carter, 953 F.2d 1449, 1457 (5th Cir.), cert.
denied sub nom., Hammack v. United States, 504 U.S. 990 (1992).
Our inquiry proceeds in two steps. First, we must decide whether
the prosecutor’s questions were improper. See United States v.
Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999); United
States v. Munoz, 150 F.3d 401, 414 (5th Cir. 1998), cert. denied,
119 S. Ct. 887 (1999). If the questions are found to be improper,
we next assess whether they prejudiced Lopez’s substantive
rights. See Gallardo-Trapero, 185 F.3d at 320; Munoz, 150 F.3d at
2
In citing Greer, we do not intend to suggest that we have
determined that the prosecutor’s questioning of Lopez
constituted, or did not constitute, a Doyle violation. We only
note, as did the Supreme Court in Greer, 483 U.S. at 765, that
prosecutorial questioning regarding a defendant’s post-arrest
silence may operate to deprive that defendant of a fair trial.
Because Lopez argues that the prosecutor’s questions prejudiced
his rights to a fair trial, we consider his claim to include a
claim of prosecutorial misconduct.
10
415. Reversal is appropriate only where the questions “taken as a
whole in the context of the entire case” do not constitute
harmless error. Id. (quoting United States v. Nixon, 777 F.2d
958, 972 (5th Cir. 1985)). In assessing whether the questions
were harmless, we consider “(1) the magnitude of the [questions’]
prejudice, (2) the effect of any cautionary instructions given,
and (3) the strength of the evidence of the defendant’s guilt.”
United States v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995)
(quoting United States v. Simpson, 901 F.2d 1223, 1227 (5th Cir.
1990)).
We find that each of the prosecutor’s questions at issue
here was improper. The Government conceded at oral argument that
the question of whether Lopez asked to see his lawyer right away
was improper. The questions posed also clearly violated the
court’s in limine order in that they alluded to, and attempted to
elicit information regarding, Lopez’s post-arrest silence. We do
not find persuasive the Government’s argument that the
prosecutor’s question as to whether Lopez had had occasion to
tell his story to the Border Patrol officers was ambiguous as to
the time to which it referred. Officer testimony had already
established that upon declaring he was in the country illegally,
Lopez was immediately arrested, put into the officers’ vehicle,
and read his rights. Thus, the only time to which this question
could conceivably refer was the post-arrest period during which
Lopez was still in the company of the Border Patrol. Cf. United
States v. Rodriguez, 43 F.3d 117, 123 (5th Cir.), cert. denied,
11
515 U.S. 1108 (1995) (noting, in concluding harmless error, that
prosecutor’s question made no reference to the defendant’s
constitutionally protected post-arrest silence and that the
record showed no Miranda warnings).
We do not find the evidence against Lopez to be
overwhelming. The case turned entirely on the knowledge element
of the charged crime. The Government’s position was that Lopez’s
story was implausible, and that he either knew he was
transporting marijuana or was deliberately ignorant of the facts,
given, for example, the odor of marijuana in the car. No evidence
was presented that Lopez opened the trunk. Officers testified
they could identify the smell of marijuana only because of their
training. Lopez’s sole defense was that he had no knowledge. He
had merely agreed to drive a car for another person in return for
assistance across the river and to Austin. Three hours after his
arrest, when approached by drug enforcement agents and asked
about the drugs, he responded, “What marijuana?”
The magnitude of the prejudicial effect of the prosecutor’s
questions “is tested by looking at the prosecutor’s remarks in
the context of the trial in which they were made and attempting
to elucidate their intended effect.” United States v. Fields, 72
F.3d 1200, 1207 (5th Cir.), cert. denied, 519 U.S. 807 (1996).
The trial judge’s assessment of any possible prejudicial effect
carries considerable weight. Munoz, 150 F.3d at 415.
As mentioned, the prosecutor’s questions came at the end of
his cross-examination of Lopez. Prior questioning focused on
12
demonstrating the implausibility of Lopez’s story, with questions
highlighting such things as Lopez’s inability to state the names
of the two individuals he said helped him across the border, gave
him keys to the Cavalier, and asked him to follow a truck to San
Antonio; Lopez’s testimony that he did not bring water with him
on his journey; and his testimony that he did not smell anything
unusual in the car. The jury could have easily understood the
challenged queries as continuing the “implausibility” line of
questions, and as leading to the conclusion that Lopez had
fabricated his entire story for purposes of trial.
On brief, the Government does not negate that this was the
intended effect. The Government states that the questions were
asked in part to show that Lopez’s “defensive theory had serious
gaps as compared to the evidence already presented to the jury.”
Given that the prosecutor would have ample opportunity to
highlight any inconsistencies in his concluding remarks, “gaps,”
to the extent that they existed, did not need to be highlighted
further by a series of questions in violation of the order
prohibiting reference to Lopez’s post-arrest silence. Rather than
highlighting inconsistencies across witnesses’ testimony, it is
more likely that the purpose of the questioning was to attack the
plausibility of Lopez’s defense by suggesting that his entire
story had been fabricated.
The Government describes the purpose of the question
regarding whether Lopez requested a lawyer upon arrest as
countering impressions left by his testimony that he was
13
unsophisticated and “duped by three nameless individuals” and had
“never smelled marijuana.” Apparently, if Lopez knew enough to
ask for a lawyer, he also knew what marijuana smelled like and
how to avoid being duped by others.3 “Comments that penalize a
defendant for the exercise of his right to counsel and that also
strike at the core of his defense cannot be considered harmless
error.” United States v. McDonald, 620 F.2d 559, 564 (5th Cir.
1980).
Our prior cases have demonstrated that the type of
prosecutorial behavior reflected in this case has such a
detrimental effect on a defendant’s substantive rights that a new
trial is warranted. See, e.g., United States v. Shaw, 701 F.2d
367, 383 (5th Cir. 1983), cert. denied, 465 U.S. 1067 (1984)
(describing cases in which judgment has been reversed because of
prosecutor use of defendant’s silence). In Shaw, we noted that
[W]e have reversed when we found that the remark “went to
the heart of [the defendant’s] sole defense,” where the
defendant’s defense was “not so implausible as to be
dismissed out of hand” and evidence of guilt was not
overwhelming, and where the prosecutor had argued the
substantive or impeachment possibilities of the testimony,
or had directly tied the defendant’s silence to the
implausibility of his defense.
Id.(citations omitted); see also Velarde v. Shulsen, 757 F.2d
1093, 1095 (10th Cir. 1985) (per curiam) (“where the case comes
down to a one-on-one situation, i.e., the word of the defendant
against the word of the key prosecution witness, and where there
3
As the Government argued, “Put simply, Appellant did not
know the difference between urban and rural but yet, he knew to
ask for a lawyer.”
14
is no corroboration on either side, the importance of the
defendant’s credibility becomes so significant that prosecutorial
error attacking that credibility cannot be harmless beyond a
reasonable doubt”); United States v. Johnson, 558 F.2d 1225, 1230
(5th Cir. 1977) (finding reversal required where testimony
regarding defendant’s post-arrest silence “went to the heart of
the sole defense” of no knowledge of the cocaine found in her
possession).
Given the magnitude of the prejudicial effect of the
prosecutor’s questions, we do not find the trial judge’s pre-
trial and post-closing-argument statements to the jury sufficient
to render the effect of the prosecutor’s questioning harmless. As
a result, we conclude that the trial judge abused his discretion
in denying Lopez’s motion for a mistrial.
CONCLUSION
Because we find that prosecutorial misconduct prejudiced
Lopez’s rights to a fair trial, we REVERSE the conviction and
REMAND to the district court for a new trial.
15
United States v. Lopez-Benitez
Combined Opinion