United States v. Rodriguez

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-10982

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

REYMUNDO RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas,
Fort Worth Division
July 30, 2001
Before SMITH and DENNIS, Circuit Judges, and ROETTGER,* District
Judge.

DENNIS, Circuit Judge:

Reymundo Rodriguez, a U.S. Postal Service employee, was

convicted by a jury of misappropriating postal funds, 18 U.S.C. §

1711, and sentenced to five months imprisonment and two years

supervised release. He appealed. We reverse his conviction and

sentence. Rodriguez’s right to due process was violated when the

trial court permitted the prosecutor to argue to the jury that it

should infer guilt from Rodriguez’s election to remain silent after

his arrest and receipt of Miranda warnings.

*
District Judge of the Southern District of Florida, sitting by
designation.

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 I.

Rodriguez, a U.S. Postal Service employee, was assigned to the

box line at the Service’s Fort Worth General Mail Facility (GMF) on

May 19, 1998. Each post office in the district sends its cash

proceeds to the GMF in numbered deposit bags that require a

safeguarded transfer process ending in a transfer from a box-line

employee at the GMF to an armored car guard who then takes the

deposit bags to a bank.

According to testimony at Rodriguez’s trial, GMF employees

processed the money received by the post offices in the following

manner: When the numbered deposit bags entered the registry room,

a registry clerk and one other employee signed for them, placed

them in a green nylon liner along with an inventory list, sealed

the liner with a numbered single-use seal, and put the liner in a

large hamper. A box-line employee would then sign for the hamper

and move it to the box-line area. One employee, the “caller,”

(usually the same employee who signed for the hamper at the

registry room and moved it to the box line) would then break the

seal on the liner and call out the numbers on the enclosed deposit

bags, which numbers were separately recorded by another box-line

employee, the “writer,” and the bank’s armored car guard, as the

caller transferred the deposit bags to a container used by the

guard to take the deposits to the bank.

Prior to May 19, there had been four instances when deposit

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bags turned in to the GMF were unaccounted for during the transfer

process. These losses, totaling $20,206, occurred on February 27,

1998; March 17, 1998; April 21, 1998; and May 5, 1998. Postal

inspectors analyzed records identifying the guards, writers, and

callers on those days and determined that Rodriguez was the only

person common to all of the losses. For each day when a loss was

discovered, Rodriguez was the person who signed out the hamper from

the registry cage and called out the registered mail numbers.

In reaction to these unexplained losses of deposits, on May

19, 1998, postal inspectors were observing the GMF workroom floor

from a catwalk through a one-way glass mirror. During the deposit

transfer process on May 19, Rodriguez was working as the caller.

Rodriguez broke the seal on the green hamper liner and began taking

deposit bags out. As he called out the number on each bag, he

placed the bag in the guard’s container. However, on two occasions

he did not call out the bag number or transfer the bag to the

guard’s container. Instead, he pushed the two bags under a corner

of the hamper liner.

After Rodriguez finished transferring the other deposit bags,

he took the hamper liner out of the large hamper and placed it,

with the two deposit bags he had not called out, into a smaller

utility cart and began wheeling the cart in the opposite direction

from the registry room. When a co-worker asked Rodriguez why he

removed the liner from the large hamper when the registry clerks

preferred to have the liner inside the large hamper, Rodriguez put

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the liner, with the two concealed deposit bags, back in the large

hamper. Instead of going directly to the registry room to turn in

the hamper and liner to the registry clerk, Rodriguez continued in

the opposite direction, to a door connecting the workroom floor to

the GMF’s public lobby.

He transferred the liner from the large hamper, which would

not fit through the door, into a smaller utility cart and pushed

the cart into the lobby. An undercover postal inspector stationed

in the lobby observed Rodriguez open Locker 21, one of a group of

lockers used to store postal customers’ large parcels, and place a

deposit bag inside. As Rodriguez picked up the second bag, the

inspector left the lobby to notify the other inspectors by radio.

When the inspector returned, Rodriguez was gone. The inspector

went to Locker 21 and found the key still in the lock. He opened

the door and found the two deposit bags.

Rodriguez returned to the work area, took the empty liner from

the utility cart, placed it in the large hamper and took that back

to the registry room, speaking to no one about what he had just

done. He was then called to the workroom door by two inspectors,

who had Rodriguez accompany them to Locker 21 where they retrieved

the two deposit bags, together containing $5,741. Rodriguez was

placed under arrest, handcuffed, read his Miranda rights, and taken

to the inspectors’ office on the third floor of the GMF. During a

seven-minute period, the inspectors told Rodriguez that they had a

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videotape that showed him stealing deposit bags on the four

previous occasions when money had disappeared from the transfer

process. Rodriguez expressed his doubt that they had a videotape

showing him taking the money involved in the four previous

disappearances, saying he had nothing to do with those prior

disappearances. He then invoked his Fifth Amendment right to

remain silent, and requested a lawyer, saying nothing to the

inspectors about his involvement in removing the two deposit bags

from the May 19 deposit transfer process. The postal inspectors

left the room, and Rodriguez’s supervisors entered and offered to

allow him to resign, but over the course of a three-minute

conversation he declined and said he intended to file a union

grievance.

When he filed his union grievance three days following his

arrest, Rodriguez submitted a written statement admitting taking

the two bags and placing them in Locker 21. However, he denied any

intent to steal the money or convert it to his own use. He stated

that he diverted the bags to illustrate the lax security in the

money transfer process at the GMF, and that he had intended to

retrieve the bags and bring them back to the registry room but had

been interrupted from this plan by the inspectors.

During the jury trial Rodriguez testified in his own defense.

On direct examination, Rodriguez’s defense counsel asked him,

“Did you tell [the inspectors] at some point that that was your

5
intention, your intention was to make a point? Did you tell

management, inspectors?” Rodriguez answered, “Yes. I gave a

statement to postal management.”

The prosecutor cross-examined Rodriguez on that subject:

Q: In that seven-minute time period [while being

interrogated by the inspectors], did you ever at any time

even one time offer up to the inspectors, hey, this was

a security test on my part?

A: Sir, when I went upstairs–

Q: . . . Please answer my question. Did you ever at that

time period raise to the postal inspectors that this was

a security test on May 19, 1998?

A: No, sir.

Later in the cross-examination, regarding the time period when

he was confronted by management, the prosecutor again questioned

Rodriguez about his silence on the security test defense:

Q: And they had come in there and they spent about how

long with you, how long until you decided not to resign

and left?

A: About three minutes.

Q: Did you at any time during that three-minute

discussion with the management representatives of the

6
United States Post Office, did you raise to them one time

that what had happened on May 19, 1998, was a security

test? Did you do that, sir?

A: No, sir, because they didn’t ask me.

Q: Okay. But you know what you’re being accused of?

A: Right.

Q: The postal inspectors told you point blank, you’re

being accused of failing to remit mail to the bank on May

19?

A: You’re right.

Q: You knew that when the management people showed up,

didn’t you?

A: All management asked me was if I was going to resign,

and I told them, no, I was going to file a grievance.

And filing a grievance was my protest against postal

management.

Q: Okay. So in light of the allegations against you made

by the inspectors and known by management, you did not

stand up and yell from the rooftops that you are accusing

an innocent man, did you, sir?

A: No, sir.

Q: You never voiced your innocence to a single person

after they picked you up on May 19, 1998, did you, sir?

A: No, sir.

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Defense counsel did not object to the prosecutor’s questioning of

Rodriguez regarding Rodriguez’s post-arrest silence.

During the prosecutor’s closing argument, he addressed

Rodriguez’s security test defense by arguing, “[T]hat’s not what

was going on. That’s exactly what was not going on. And you know

that because he never bothered to mention that until well after the

fact. That’s when he came up with this so-called security check.”

Again, in his rebuttal closing argument, the prosecutor

emphasized Rodriguez’s post-arrest silence:

[I]f for some reason on that day Mr. Rodriguez did not

have a bad purpose, a wrongful intent in taking those

bank bags, you know that in connection with the events

that took place there, he would have voiced it to

someone. And why did[n’t] he voice it to someone, ladies

and gentlemen? Because he had the intent to take those

bags.

The defense counsel did not object to this comment.

Next, the prosecutor urged the jury to find that Rodriguez did

not mention the security test to any co-workers between putting the

deposit bags in the locker and his arrest. The defense counsel

objected that “it’s a comment on his right not to say anything.”

The court sustained the objection and instructed the jury to

8
disregard any suggestion that Rodriguez did not have a right to

remain silent.

The prosecutor, however, continued to dwell upon Rodriguez’s

post-Miranda warning silence and, in effect, argued that the jury

should infer that Rodriguez was guilty of willingly and knowingly

failing to remit the deposit bags to the designated depository

because he chose to remain silent rather than to inform the postal

inspectors that he had taken the proceeds only for the purpose of

demonstrating the laxity of Postal Service security measures during

the transfer process.

The prosecutor argued:

I submit to you the most important evidence in this case

concerning Mr. Rodriguez’s intent is when you compare and

contrast his testimony on the witness stand . . . with

what happened on May 19. And remember what Mr. Rodriguez

told you. On May 19, when the inspectors took him

upstairs, he did not say to the inspectors, “Hey, this is

a security test.” He did not say that. And when

management came in to talk to him about his job status,

he did not say, not one time and not a peep, “This is

just a security test.”

The defense counsel immediately objected on the basis that the

prosecutor’s comment constituted an impermissible comment on

9
Rodriguez’s right to remain silent. The trial court, without

explanation, overruled the objection. Rodriguez moved for

acquittal following the return of the jury’s guilty verdict, and

that motion was denied.

II.

A.

As a general rule, the government may not “impeach a

defendant’s exculpatory story, told for the first time at trial, by

cross-examining the defendant about his failure to have told the

story after receiving Miranda warnings at the time of his arrest.”

Doyle v. Ohio, 426 U.S. 610, 611 (1976). The Doyle Court concluded

that the government violates a defendant’s due process rights by

commenting on his post-arrest, post-Miranda warning silence for two

reasons: First, the Court said that a defendant’s silence in

response to Miranda warnings is “insolubly ambiguous.” Id. at 617.

Second, the Court held that by giving Miranda warnings, the

Government implicitly assures a defendant that he will not be

penalized for exercising those rights by remaining silent.1 Id. at

1
The “insolubly ambiguous” rationale has since been discarded.
See Brecht v. Abrahamson, 507 U.S. 619, 628 (1993). But Miranda’s
assurance that silence carries no penalty is sufficient alone to
maintain the Doyle general rule as a requirement of fairness and
due process. See Portuondo v. Agard, 529 U.S. 61, 74-75 (2000);
Brecht, 507 U.S. at 629; Wainwright v. Greenfield, 474 U.S. 284,

10
618.

The Supreme Court made clear in Doyle, however, that the there

are exceptions to its general rule. For example, the rule does not

apply when a defendant testifies at trial that he told his

exculpatory story at the time of his arrest. Id. at 619 n.11. In

such a case, the prosecution may introduce defendant’s post-arrest

silence to impeach his trial testimony that upon arrest he did not

remain silent but told his exculpatory story. Id.; accord United

States v. Allston, 613 F.2d 609, 610 (5th Cir. 1980); United States

v. Dixon, 593 F.2d 626, 630 (5th Cir. 1979); United States v.

Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975); United States v.

Shue, 766 F.2d 1122, 1129 (7th Cir. 1985) (citing Fairchild, supra).

Under that exception, however, the defendant’s silence is

admissible only for the limited purpose of rebutting the impression

that the accused had actively cooperated with the police.

Fairchild, 505 F.2d at 1383. It does not give the government the

license to use post-arrest silence in every aspect of the case.

Shue, 766 F.2d at 1130 (citing Fairchild, supra). Although the

government may use a defendant’s post-arrest silence to impeach

testimony about the circumstances of an arrest, the government may

not then argue that the defendant’s silence was inconsistent with

his claim of innocence. Id. (citing also United States v. Mavrick,

601 F.2d 921 (7th Cir. 1979)).

294 (1986); Fletcher v. Weir, 455 U.S. 603, 605 (1982).

11
 Consequently, in the present case, we conclude that the

prosecutor, in his final comment during his closing argument, went

beyond permissible impeachment and argued that the jury should

infer Rodriguez’s guilt directly from his post-arrest silence. The

prosecutor argued that “the most important evidence in this case

concerning Mr. Rodriguez’s intent” was the contrast between his

trial testimony and his failure to give his exculpatory story to

the postal inspectors or supervisors: “On May 19, when the

inspectors took him upstairs, he did not say . . ., ‘Hey, this is

a security test.’ . . . And when management came in to talk to him

about his job status, he did not say, not one time and not a peep,

‘This is just a security test.’” Plainly, the prosecutor urged the

jury to consider Rodriguez’s silence as direct evidence of his

guilt or knowing intent to fail to remit the deposit bags to the

designated depository.2 Because Rodriguez’s silence was admissible

only for the purpose of rebutting the impression that he had

2
We emphasize that it was the prosecutor’s foregoing final
comment that crossed the Doyle line. The prosecutor’s questioning
of Rodriguez during cross-examination was a permissible attempt to
impeach and clarify Rodriguez’s direct testimony that possibly
implied that he had given his exculpatory story to the postal
inspectors during his initial interrogation. Doyle, 426 U.S. at
619 n.11. Further, the prosecutor’s comment during rebuttal
closing argument on Rodriguez’s failure to inform his co-workers of
his “security test” was permissible because it was a comment on
Rodriguez’s pre-arrest silence, which is not prohibited by Doyle.
See Jenkins v. Anderson, 447 U.S. 231, 240 (1980). Finally,
because the Doyle error described in the text above requires
reversal, we need not consider whether the unobjected-to
prosecutorial comments constituted plain errors also warranting
reversal. See United States v. Carter, 953 F.2d 1449, 1463 (5th
Cir. 1992).

12
informed the postal inspectors of his exculpatory story shortly

after his arrest and Miranda warnings, the prosecutor’s comments in

closing argument should have been excluded and a corrective

instruction should have been given. Fairchild, 505 F.2d at 1383.

B.

Although the prosecutor’s final comment on Rodriguez’s post-

arrest, post-Miranda warning silence during his closing argument

was impermissible under Doyle, we must determine whether the error

was harmless. United States v. Laury, 985 F.2d 1293, 1304 (5th Cir.

1993); United States v. Shaw, 701 F.2d 367, 382 (5th Cir. 1983).

“The leading case in this Circuit analyzing the harmless error test

as applied to Doyle violations is Chapman v. United States.”

United States v. Meneses-Davila, 580 F.2d 888, 893 (5th Cir. 1978)

(citing Chapman, 547 F.2d 1240 (5th Cir. 1977)); see also United

States v. Rodriguez, 43 F.3d 117, 121 (5th Cir. 1995) (reaffirming

the use of the Fifth Circuit’s Chapman harmless error test for

Doyle violations).

A prosecutor’s impermissible reference to a defendant’s post-

arrest, post-Miranda warnings silence may be cured by a fact-

dependent, case-by-case determination of harmless error. Meneses-

Davila, 580 F.2d at 893. In Chapman, we harmonized the case law,

categorizing prosecutors’ impermissible comments on silence into

13
three categories:

(1) When the prosecution uses defendant’s post-arrest

silence to impeach an exculpatory story offered by

defendant at trial and the prosecution directly links the

implausibility of the exculpatory story to the

defendant’s ostensibly inconsistent act of remaining

silent, reversible error results even if the story is

transparently frivolous.

(2) When the prosecutor does not directly tie the fact of

defendant’s silence to his exculpatory story, i.e., when

the prosecutor elicits that fact on direct examination

and refrains from commenting on it or adverting to it

again, and the jury is never told that such silence can

be used for impeachment purposes, reversible error

results if the exculpatory story is not totally

implausible or the indicia of guilt not overwhelming.

(3) When there is but a single reference at trial to the

fact of defendant’s silence the reference is neither

repeated nor linked with defendant’s exculpatory story,

and the exculpatory story is transparently frivolous and

evidence of guilt is otherwise overwhelming, the

reference to defendant’s silence constitutes harmless

14
 error.[3]

547 F.2d at 1249-50 (quoted in Meneses-Davila, 580 F.2d at 893;

Rodriguez, 43 F.3d at 121). “Reversible error results in the first

two situations, but not the third.” Meneses-Davila, 580 F.2d at

894.

This case falls within the first Chapman reversible error

category. That category mandates reversal when the prosecutor

links defendant’s silence to the implausibility of his exculpatory

story. The prosecutor in the present case did that by implying

that the defendant’s exculpatory story was a post-arrest

fabrication, and used the defendant’s failure to give his

explanation to the postal inspectors or to his supervisors before

he was suspended to support that conclusion. Indeed, the

prosecutor argued to the jury that Rodriguez’s post-arrest silence

was “the most important evidence in this case concerning . . .

intent.” Reversible error occurred whether or not defendant’s

testimony about his intention to merely check or demonstrate the

ineffective security practices used during the postal proceeds

3
For analytical purposes, it is important to differentiate
cases falling within Chapman’s first category from cases in the
other two categories. The second and third categories articulated
in Chapman “are not to be used as rigid rules,” Alderman v. Austin,
695 F.2d 124, 126 n.7 (5th Cir. 1983), but only as helpful guides;
when “cases cannot be resolved solely by reference to the Chapman
categories[,] . . . we apply a case-by-case approach using the
Chapman categories as guidelines for assessing prejudice.”
Rodriguez, 43 F.3d at 121-22.

15
transfer process was unbelievable. See Meneses-Davila, 580 F.2d at

895.

C.

Rodriguez argues that the government’s evidence regarding his

intent to fail to remit the deposit bags to the bank guard “was far

from overwhelming.” We must reach Rodriguez’s argument regarding

the sufficiency of the evidence against him “because the Government

may not retry [Rodriguez] if the evidence at the first trial was

insufficient.” Id. at 896 (citing Burks v. United States, 437 U.S.

1, 11 (1978) (“The Double Jeopardy Clause forbids a second trial

for the purpose of affording the prosecution another opportunity to

supply evidence which it failed to muster in the first

proceeding.”)); see also United States v. Moses, 94 F.3d 182, 188

(5th Cir. 1996) (“In cases where the reversal permits the Government

to retry the defendant, we must reach a sufficiency of the evidence

argument because the Government may not retry the defendant if the

evidence at trial was insufficient.”).

We review sufficiency of the evidence by examining the

evidence and all reasonable inferences therefrom in the light most

favorable to the verdict, to determine whether a rational trier of

fact could have found the essential elements of the offense beyond

a reasonable doubt. Glasser v. United States, 315 U.S. 60 (1942);

see also United States v. Willis, 6 F.3d 257, 264 (5th Cir. 1993).

16
 Rodriguez does not argue on appeal, nor did he counter

evidence presented at trial, that he failed to remit the deposits

to the designated depository, see 18 U.S.C. § 1711, but argues

merely that the evidence was insufficient to prove that he had the

requisite knowing and willing intent with regard to that failure.

The government elicited testimony that Rodriguez placed the deposit

bags into the parcel locker in the public lobby, and that he left

the key to the locker in the lock. We believe a rational trier of

fact could draw the inference from this testimony that Rodriguez

did not intend to safeguard the deposits until he could retrieve

them and deposit them with the designated depository.

Rodriguez’s only evidence offered to counter this proof of

intent was his own testimony that he intended the diversion of

deposits as a security test, which he planned to conclude by

disclosing the diverted deposits to his co-workers before

depositing them with the designated depository. However, the

government elicited testimony from Rodriguez that he did not tell

any of his co-workers about his security test between the time he

left the bags in the locker and when he was called to the workroom

door by the investigators, which time the trial testimony shows

lasted as long as 50 minutes. This testimony undermines

Rodriguez’s defense of lack of intent. See Brecht, 507 U.S. at 628

(“Such [pre-arrest] silence is probative and does not rest on any

implied assurance by law enforcement authorities that it will carry

no penalty.”). Therefore, reading the testimony regarding

17
Rodriguez’s leaving of the key in the lock and regarding his

failure to report his security test to co-workers prior to his

arrest, and the inferences therefrom, in the light most favorable

to the verdict, we find that a rational trier of fact could have

found the essential elements of the offense beyond a reasonable

doubt.

III.

For the foregoing reasons, the final judgment of the trial

court is REVERSED and this case is REMANDED for proceedings

consistent with this opinion.

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