Case: 10-10257 Document: 00511509812 Page: 1 Date Filed: 06/15/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 15, 2011
No. 10-10257
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE WAYNE POTTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, DeMOSS, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Bruce Potts appeals his three-count conviction and sentence for being a
felon in possession of a firearm. Finding no reversible error, we affirm.
I.
In December 2008, Officer Paul James of the Dallas Police Department re-
Case: 10-10257 Document: 00511509812 Page: 2 Date Filed: 06/15/2011
No. 10-10257
sponded to a call reporting a car speeding down a street. On arriving at the loca-
tion, James observed a vehicle driven by Potts, in the parking lot of a closed res-
taurant, that began to move in a manner he believed indicated an attempt to
leave the lot.
James instructed Potts to park the car and shut off the engine. Potts be-
gan to reach under his seat, at which point James ordered Potts to show his
hands. Potts did not immediately comply with that command and instead con-
tinued to reach under the seat. James approached the vehicle and ordered Potts
to exit the car. Potts complied, and James was able to see that a firearm was
protruding from under Potts’s seat.
James examined the firearm, handcuffed Potts, and sat him down on the
street curb. James then asked Potts whether the gun belonged to him, but Potts
did not respond. A search was conducted of the car, which yielded two additional
firearms and some ammunition. Potts was then arrested.
Potts was tried for being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). At trial, the prosecution elicited testimony
from James regarding Potts’s silence after being asked who owned the pistol.
Potts objected to that testimony, leading to the following exchange out of the
hearing of the jury:
DEFENSE: Your Honor, I object to the government eliciting
testimony that the defendant did not give a state-
ment. He’s under no obligation for him to do that
at all. I don’t think it’s proper for them to ask
about.
PROSECUTION: He wasn’t placed under arrest, whether or not he
made any res gestae statements is . . .
COURT: Your contention is that it violates the Fifth
Amendment?
2
Case: 10-10257 Document: 00511509812 Page: 3 Date Filed: 06/15/2011
No. 10-10257
DEFENSE: That’s correct.
COURT: He’s not being interrogated. He’s not under ar-
rest at that point.
DEFENSE: We’re just?
COURT: I could instruct the jury that he was not obligated
to answer questions of the authorities and there
is no crime associated with him doing so, if you
would like me to do that.
DEFENSE: Yeah.
Following that exchange, the court instructed the jury “that Mr. Potts did
not have a legal obligation to respond to the officer’s questions and there’s no vio-
lation of the law associated with his declining to do so, if in fact he did that,” and
the court allowed the prosecution to continue its questioning. Potts did not reas-
sert his objection to the testimony, object to the instruction, or move for a mis-
trial.
The government again referenced Potts’s silence during its closing argu-
ment. Potts objected, not on any Fifth Amendment ground but on the ground
that the prosecution was attempting to shift the burden of proof. The court in-
structed the jury that the government had the burden of proof and denied Potts’s
subsequent motion for a mistrial on that basis.
The jury found Potts guilty, and the court sentenced him to thirty months’
imprisonment, to be served consecutively to certain state sentences that had yet
to be imposed. On appeal, Potts raises three arguments: (1) that the government
violated his Fifth Amendment right against self-incrimination by referencing,
during trial, his silence in response to police questioning; (2) that the govern-
ment was required to prove that Potts knew the firearm in his possession had
moved in interstate commerce; and (3) that the district court erred in requiring
3
Case: 10-10257 Document: 00511509812 Page: 4 Date Filed: 06/15/2011
No. 10-10257
Potts to serve his federal sentence consecutively to a state sentence that had not
yet been imposed.
II.
Ordinarily, we review a constitutional question de novo. United States v.
Pando Franco, 503 F.3d 389, 393 (5th Cir. 2007). If, however, a defendantSSas
hereSSdoes not properly preserve his claim, we review for plain error. United
States v. Salinas, 480 F.3d 750, 755 (5th Cir. 2007).
Potts argues that he preserved his constitutional claim when he lodged an
objection to James’s testimony. His mere objection, however, does not suffice.
In Salinas, 480 F.3d at 755, we held that plain-error review was appropriate for
a Fifth Amendment claim even though defense counsel “timely objected to each
of the prosecutor’s references to [the defendant’s] post-arrest silence,” because
“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.” Furthermore, we remarked that the defense “never took exception to
the district court’s handling of his objections and, significantly, . . . never re-
quested that the district court declare a mistrial.” Id. at 755-56. Plain error re-
view was appropriate, because the defendant “effectively received all of the relief
that he requested from the district court.” Id. at 756.
Salinas is not directly controlling, because the court did not explicitly sus-
tain Potts’s objections, but the principles of Salinas inform us. As with the de-
fendant in Salinas, Potts never raised any concerns with how the district court
chose to handle his objection, and Potts explicitly agreed to the court’s proffered
curative statement.
Potts argues that Salinas is inapplicable, because the district court impli-
citly overruled his objection. That is a mischaracterization of the proceedings.
Potts objected to testimony regarding his silence. The district court then offered
4
Case: 10-10257 Document: 00511509812 Page: 5 Date Filed: 06/15/2011
No. 10-10257
a curative instruction, which Potts accepted. By accepting the instruction, Potts
failed to obtain a definitive ruling on his objection—there was no implicit over-
ruling, but rather no ruling at all. Following that failure to obtain a ruling,
Potts accepted the court’s curative instruction without objection, thus failing to
preserve error.
“We find plain error when (1) there was an error or defect; (2) the legal
error was clear or obvious, rather than subject to reasonable dispute; and (3) the
error affected the defendant’s substantial rights.” United States v. Juarez, 626
F.3d 246, 254 (5th Cir. 2010). Once those three elements have been satisfied, we
may exercise our discretion to correct the error. Id. Regarding the second ele-
ment, “[a]n error is considered plain, or obvious, only if the error is clear under
existing law.” Salinas, 480 F.3d at 756.
Potts cannot satisfy the second element, because the error he claims was
not clear under existing Fifth Circuit law. This court has yet to address conclu-
sively whether the use of pre-Miranda silence as substantive evidence of guilt
is a Fifth Amendment violation. See id. at 758 (“No published decision of this
court has addressed whether the prosecution 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.”).
In United States v. Zanabria, 74 F.3d 593 (5th Cir. 1996), we assumed
without deciding that a defendant’s pre-arrest, pre-Miranda silence fell within
the scope of the Fifth Amendment’s protection. An arguendo assumption, how-
ever, is not “existing law.” Post-Zanabria cases have also held that “a prosecu-
tor’s reference to a non-testifying defendant’s pre-arrest silence does not violate
the privilege against self-incrimination if the defendant’s silence is not induced
by, or a response to, the actions of the government.” United States v. Elashyi,
554 F.3d 480, 506 (5th Cir. 2008). Potts argues that his silence was in response
to actions of the officer, so his privilege against self-incrimination was violated.
5
Case: 10-10257 Document: 00511509812 Page: 6 Date Filed: 06/15/2011
No. 10-10257
But that is not a necessary conclusion from our caselaw.
Thus, even assuming arguendo that it was error to allow testimony re-
garding Potts’s pre-Miranda silence, the decision to allow that testimony does
not constitute reversible error, because the error was not plain.
III.
Potts contends that the government was required to prove, but did not,
that he knew the firearm had traveled in interstate commerce. Potts was con-
victed pursuant to 18 U.S.C. § 922(g)(1)1 and sentenced pursuant to 18 U.S.C.
§ 924(a)(2).2 He argues that the word “knowingly” in § 924(a)(2) requires the
government to prove that every element in § 922(g)(1), including that the firearm
had traveled in interstate commerce, was known by the defendant.
That argument, however, is foreclosed by United States v. Rose, 587 F.3d
695 (5th Cir. 2009). There, the defendant raised the same argument as Potts
does here, but we rejected it because the defendant had not been sentenced un-
der § 924(a)(2). Id. at 705-06. Rather, he was sentenced under § 924(e)(1),
which does not contain a “knowingly” requirement. We went on, however, to
state that “[e]ven assuming arguendo that the ‘knowingly’ requirement in § 924-
(a)(2) applied throughout that section, there would be no corresponding impact
on the elements of a crime listed in § 922(g)(1).” Id. at 706 n.9. That statement
in Rose was not mere dictum; rather, it was an alternate holding that carries the
1
Section 922(g)(1) states, in pertinent part, that “[i]t shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term ex-
ceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or af-
fecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.”
2
Section 924(a)(2) provides that “[w]hoever knowingly violates subsection (a)(6), (d),
(g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more
than 10 years, or both.”
6
Case: 10-10257 Document: 00511509812 Page: 7 Date Filed: 06/15/2011
No. 10-10257
force of precedent.3 Thus, Potts’s claim fails.
IV.
Finally, Potts claims that the district court erred in requiring him to serve
his thirty-month sentence consecutively to state sentences that had yet to be
imposed at the time of his federal sentencing, in violation of 18 U.S.C. § 3584(a).
That argument is plainly foreclosed by our precedent, as Potts concedes.4
AFFIRMED.
3
See Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991) (“This circuit fol-
lows the rule that alternative holdings are binding precedent and not obiter dictum.”). In
United States v. Peters, 364 F. App’x 897, 898 (5th Cir. 2010) (per curiam), we similarly said
that the statement in Rose was an alternative holding. Peters, however, was unpublished. We
now endorse that conclusion and make it explicit that our discussion of §§ 922(g)(1) and 924-
(a)(2) in Rose was an alternate holding and thus binding precedent.
4
See United States v. Brown, 902 F.2d 1212, 1217 (5th Cir. 1991) (“[W]hen determining
whether to impose concurrent or consecutive sentences [the district court] may consider subse-
quent sentences anticipated, but not yet imposed, in separate state court proceedings.”).
7