FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50041
Plaintiff-Appellee, D.C. No.
v. CR-06-00281-
WQH-1
ELIDE T. CARUTO,
Defendant-Appellant. ORDER
AMENDING
OPINION AND
AMENDED
OPINION
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted
February 5, 2008—Pasadena, California
Filed May 12, 2008
Amended June 18, 2008
Before: Susan P. Graber and Marsha S. Berzon,
Circuit Judges, and Claudia Wilken,* District Judge.
Opinion by Judge Wilken
*The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
6975
6978 UNITED STATES v. CARUTO
COUNSEL
Timothy A. Scott, San Diego, California, for the defendant-
appellant.
Lawrence A. Casper and Neville S. Hedley, Assistant United
States Attorneys, San Diego, California, for the plaintiff-
appellee.
ORDER
The opinion filed on May 12, 2008, is amended as follows:
On slip opinion page 5230, delete footnote 2.
On slip opinion page 5241, lines 1-2, replace the sentence,
“In fact, Caruto entered a continuing objection and was
instructed by the court to stop objecting.” with “In fact, Car-
uto entered four objections, all of which were overruled, to
the prosecutor’s discussion of Caruto’s omissions, and those
objections were not limited to ‘discrete comments.’ ”
UNITED STATES v. CARUTO 6979
Any petitions for rehearing or for rehearing en banc will
remain due on June 26, 2008.
OPINION
WILKEN, District Judge:
Elide Caruto was convicted of one count of importation of
cocaine in violation of 21 U.S.C. §§ 952 and 960 and one
count of possession of cocaine with intent to distribute in vio-
lation of 21 U.S.C. § 841. She argues that her trial was funda-
mentally unfair because the district court allowed the
prosecution to emphasize in its closing argument omissions in
the brief post-arrest statement she gave before invoking her
Miranda rights. This closing argument, she contends, improp-
erly penalized her for cutting the interview short by exercising
her Miranda rights. We hold that the prosecutor’s argument,
emphasizing omissions from Caruto’s post-arrest statement
that exist only because she invoked her right to counsel under
Miranda, constitutes a violation of Caruto’s right to due pro-
cess.
I.
On the evening of February 6, 2006, Caruto was arrested at
the Calexico, California port of entry when Customs and Bor-
der Protection officers discovered, in the gas tank of her truck,
thirty-two packages containing a total of seventy-five pounds
of cocaine. Late that night or early the next morning, Immi-
gration and Customs Enforcement Special Agents Matthew
Kelley and Tim Ballard interviewed Caruto.
After the agents read Caruto her Miranda rights, she signed
a waiver and agreed to make a statement. Five to seven min-
utes later, Caruto invoked her right to counsel, and the inter-
view ended. The only record of the interview is a set of
6980 UNITED STATES v. CARUTO
contemporaneous handwritten notes taken by Kelley. The
notes were altered in at least two places.
At trial, the prosecution called Kelley as a witness. The
prosecutor asked, “What did she tell you about the truck?”
Kelley responded that Caruto told the agents “that she had
lent the truck to unknown individuals in Mexicali, three to
four weeks prior to her arrest. She said she received the vehi-
cle on that date and that she was going to drive the vehicle to
Los Angeles. She said she believed she was helping her
friend.” On cross-examination, Kelley testified that Caruto
had denied knowledge of the cocaine in the truck.
Defense counsel also challenged Kelley’s testimony that
Caruto told him “that she was actually going to drive to LA.”
Counsel asked, “[I]sn’t the fact that she said that she was told
to go but that she wasn’t really going?” Kelley replied, “I
understood it that she was going to be driving to LA.” Coun-
sel confronted Kelley with his notes of the statement. Kelley
originally recorded, “Received truck today. Was going to
drive to LA to help friend,” but crossed out the word “going”
and replaced it with “told.” Kelley conceded that, according
to the revised notes, Caruto did not state “that she agreed to
drive to LA or was going to drive to LA.”
The notes also originally stated, “She let someone borrow
the truck.” Kelley had crossed out “someone” and replaced it
with “unknown persons.” Queried as to whether these persons
were “unknown” to Caruto or to Kelley, Kelley agreed that
“nowhere in those notes does it say Ms. Caruto didn’t know
who.”
On redirect, the prosecutor asked, “[W]hen you were inter-
viewing the defendant, did she say she was going home to
Calexico?” Kelley testified that she did not. Kelley said Car-
uto related that “she was told to drive to Los Angeles.” Bal-
lard also testified he understood that “unknown individuals
. . . had told her to drive that vehicle to Los Angeles.”
UNITED STATES v. CARUTO 6981
The only other witnesses for the prosecution were the agent
who referred Caruto to secondary screening at the border
crossing, the agent who inspected Caruto’s truck at secondary
screening, the officer who discovered the cocaine in Caruto’s
truck, an agent who testified about the value of the cocaine,
and an agent who testified about the manner in which the
cocaine was concealed in the truck.
Caruto was the first defense witness. She testified that, the
night before her arrest, she received a phone call from her
friend Elisa. Caruto testified she told Elisa that, the next day,
she would be in Mexicali, a town in Mexico contiguous to
Calexico, the town in California in which Caruto lived. Car-
uto testified that Elisa asked, “[A]re you still selling the
truck? And I said, yes. And then she said, because my
brother-in-law wants to buy it.” When asked if Elisa had ever
seen the truck before, Caruto testified, “Three weeks before
this happened, she went to my apartment in Calexico, and she
borrowed it and took it to — they went to move some stuff
in Mexico.” Caruto further testified that Elisa’s brother-in-law
Jose Jimenez had been with Elisa when she borrowed the
truck.
Caruto testified that, after she showed Jimenez the truck in
Mexicali the next day, he told her he was interested in pur-
chasing it and asked if he could “try it” and if he could take
it to a mechanic. Later that afternoon, Jimenez met Caruto to
return the truck and told her that he wanted to buy it. Jimenez
said that he would pay her $1,000 for the truck right away and
he would pay her the rest in Los Angeles. He asked Caruto
if she was going to Los Angeles, and she told him that she
was going to Calexico. Caruto testified that she did not agree
to take the $1,000 and that she was not planning to drive to
Los Angeles. Caruto further testified that she had to return to
Mexicali to see her doctor at 9:00 the next morning.
Caruto testified that nothing seemed out of the ordinary
about the truck. She proceeded to the border. She also testi-
6982 UNITED STATES v. CARUTO
fied that, following her arrest, she attempted to get in touch
with Elisa and Jimenez but was not able to reach them. She
never heard from them again.
On cross-examination, the prosecutor asked Caruto if she
had given her truck to Elisa and Jimenez before the day that
she was arrested. She again explained that she had given it to
them three weeks earlier but that she had gotten it back that
same day. When questioned about Jimenez’s offer of $1,000
on the day of her arrest, Caruto testified that he wanted to
give her $1,000 “to reserve the car.” Caruto also testified, “He
didn’t want me to drive it to Los Angeles[.] He asked, are you
going to Los Angeles.” The defense called six other wit-
nesses, all of whom corroborated various parts of Caruto’s
testimony.
The prosecution began its closing argument by noting that
there was no dispute that Caruto was driving the truck or that
the truck contained the cocaine. “What is in dispute,” the
prosecution argued, “is whether the defendant knew that there
was cocaine, 75 pounds of cocaine in the gas tank of her
truck.” The prosecution went on to argue that
the defendant knew. And how do we know that she
knew? Well, let’s look at what she said to Agent
Kelley and Agent Ballard at the port of entry on the
date of her arrest. What did she say about the truck?
She said she owned the truck for approximately one
year and that she had given it away to unknown indi-
viduals — unknown individuals three weeks to a
month prior to the date of her arrest, that she got it
back that day, the day of her arrest, and was told by
these unknown individuals to drive the truck to Los
Angeles. Drive a truck loaded with 75 pounds of
cocaine in the gas tank to Los Angeles. Ladies and
gentlemen, that’s how you know. She didn’t say that
UNITED STATES v. CARUTO 6983
it was Jose Jiminez,[1] and by the way, here’s his
phone number because I just spoke to him.
The defense objected, citing Doyle v. Ohio, 426 U.S. 610
(1976). The court overruled the objection. The prosecutor
continued:
She didn’t say it was Jose Jiminez who gave her the
truck, and by the way, here’s his phone number
because I just spoke to him a few hours ago . . . She
didn’t say I was selling the truck. No, what she said
to agents Kelley and Ballard was that unknown indi-
viduals had given her — or had taken her truck three
weeks to a month earlier and that she got it back that
day and was told to drive it to Los Angeles.
The defense agreed that the central question for the jury to
decide was whether Caruto knew that the cocaine was in the
truck. However, counsel questioned the credibility of Kelley’s
testimony regarding Caruto’s post-arrest statement, noting the
changes he made to his notes following the interview.
In rebuttal, the prosecution argued that Caruto’s “statement
at the port of entry made no sense, just like her testimony the
other day made no sense. She was lying on both occasions.”
The prosecutor urged the jurors to question why the govern-
ment did not have a more detailed statement from Caruto. In
particular, he argued that the jury should ask,
Why, at the port of entry, did she not say someone
or some unknown person who borrowed my truck is
Jose Jiminez, and here’s his phone number?[2] . . .
Here is his phone number. I just spoke to him, and
1
Throughout the transcript, this name is spelled “Jiminez.” In their
briefs, both parties spell it “Jimenez.”
2
At this point, the defense again objected based on Doyle, and the court
again overruled the objection.
6984 UNITED STATES v. CARUTO
this is the man who had my truck but a few hours
ago. This is the man who must have put the cocaine
in my truck. Why didn’t she say that?[3]
Why didn’t she say I’m going home to Calexico,
and he thinks I’m going home to Calexico? No, she
said I was told to go to LA. Her stories don’t make
sense. Her story didn’t make sense at the port of
entry. It makes no sense now. Be guided by your rea-
son and common sense. Her testimony doesn’t add
up.
After the jury left to deliberate, the defense again raised its
Doyle objection and moved for a mistrial. The court denied
the motion.
During the first day of deliberations, the jury sent a note to
the court asking “to review Agent Kelley’s interrogation
report on Ms. Caruto.” The jury was not permitted to see Kel-
ley’s notes because they had not been received in evidence.
After deliberating for approximately one-and-one-half days,
the jury found Caruto guilty on both counts of the indictment.
The court sentenced Caruto to 168 months’ imprisonment.
II.
We review de novo whether references to a defendant’s
silence following the administration of Miranda warnings
violate her right to due process under Doyle. United States v.
Pino-Noriega, 189 F.3d 1089, 1098 (9th Cir. 1999). Doyle
error requires reversal unless the prosecution demonstrates,
beyond a reasonable doubt, that the error was harmless.
United States v. Baker, 999 F.2d 412, 416 (9th Cir. 1993).
3
Again, the defense objected, and the court overruled the objection.
UNITED STATES v. CARUTO 6985
III.
[1] In Doyle, the Supreme Court noted:
“When a person under arrest is informed, as
Miranda requires, that he may remain silent . . . , it
seems . . . that it does not comport with due process
to permit the prosecution during the trial to call
attention to his silence at the time of arrest and to
insist that because he did not speak about the facts
of the case at that time, as he was told he need not
do, an unfavorable inference might be drawn as to
the truth of his trial testimony.”
426 U.S. at 619 (alteration omitted) (quoting United States v.
Hale, 422 U.S. 171, 182-83 (1975) (White, J., concurring in
the judgment)). The Court held that “the use for impeachment
purposes of [a defendant’s] silence, at the time of arrest and
after receiving Miranda warnings, violate[s] the Due Process
Clause.” Id. Following Doyle, this court has held that a “de-
fendant who has received Miranda warnings can, thereafter,
remain silent without running the risk that the prosecutor will
comment upon that fact.” Leavitt v. Arave, 383 F.3d 809, 827
(9th Cir. 2004) (per curiam) (footnote omitted) (citing Doyle,
426 U.S. at 617-18).
In Anderson v. Charles, 447 U.S. 404 (1980) (per curiam),
the Supreme Court declined to extend Doyle to a situation in
which the defendant did not invoke his Miranda rights, but
waived them and gave a post-arrest statement inconsistent
with his trial testimony. The Court held, “Doyle does not
apply to cross-examination that merely inquires into prior
inconsistent statements. Such questioning makes no unfair use
of silence, because a defendant who voluntarily speaks after
receiving Miranda warnings has not been induced to remain
silent.” Id. at 408. In United States v. Ochoa-Sanchez, 676
F.2d 1283, 1287 (9th Cir. 1982), another case in which the
defendant did not invoke his Miranda rights, this court held
6986 UNITED STATES v. CARUTO
that the prosecution’s probing on cross-examination of the
defendant’s post-arrest statements that were inconsistent with
his trial testimony did not require reversal because the prose-
cution did not invite a conviction from the defendant’s
silence.
[2] We address for the first time the application of this line
of cases to a situation in which a defendant makes a limited
statement and then invokes her Miranda rights. Although nei-
ther the Supreme Court nor this court has addressed such a
circumstance, we hold that the general principles in the exist-
ing case law compel the conclusion that Doyle prohibits the
prosecutor’s argument in this case.
In Charles, the case in which the Supreme Court declined
to extend the reach of Doyle, the defendant was arrested while
in possession of the victim’s car. 447 U.S. at 404. Charles
never invoked his Miranda rights. Instead, Charles waived his
Miranda rights and told the arresting officer that he had stolen
the car from the street in a specific area. Id. at 405. At trial,
Charles testified that he had stolen the car from a parking lot
approximately two miles from the area he originally identi-
fied. Id. The Supreme Court found “no unfair use of silence”
when the prosecution questioned Charles about the discrep-
ancy in his story, “because a defendant who voluntarily
speaks after receiving Miranda warnings has not been
induced to remain silent. As to the subject matter of his state-
ments, the defendant has not remained silent at all.” Id. at
408. In Charles, the prosecutor did not question the defendant
about, or argue about, an omission. The prosecutor asked only
about the conflict between Charles’ two accounts of where he
stole the car, one at the time of his arrest and the other at trial.
In Ochoa-Sanchez, the defendant was arrested when heroin
was discovered in his car at a border crossing. 676 F.2d at
1284. At no point did Ochoa invoke his Miranda rights. Id.
at 1286. Rather, he waived his Miranda rights and answered
a Drug Enforcement Administration agent’s questions. Id.
UNITED STATES v. CARUTO 6987
The agent testified that Ochoa stated that the car belonged to
his friend Angel Ortega; Ochoa had driven to Mexico that
morning; and he did not know about the heroin. Id. at 1284.
In response “to questioning designed to discover where
Ortega could be found, defendant told the agent that he lived
in an apartment complex in Santa Ana.” Id.
At trial, Ochoa testified that Ortega had invited him to go
to Tijuana with Ortega and his friend. Id. at 1285. When they
arrived in Tijuana, the three men went to a bar, but Ochoa
wanted to leave. Ortega gave Ochoa the keys to the car and
told him that he could leave if he wanted to and that Ortega
and his friend would find him the next day or the day after to
get the car. Id. On cross-examination, the prosecutor pointed
out that Ochoa had not told the agent that he had been set up
by Ortega or that he had just left Ortega at a bar in Tijuana
a short time before he was arrested. Id. Ochoa responded that
the agent “didn’t let [him] explain everything,” “didn’t let
[him] speak,” and “told [him] to be quiet.” Id.
The prosecutor argued in closing that Ochoa had not acted
as one would expect an innocent person to act because he did
not say that he had been set up, that he hadn’t been the one
to drive the car to Tijuana, or that the owner of the car was
at a bar in Tijuana. Id. at 1287 n.3. Further, the prosecutor
faulted Ochoa’s explanation that he did not have an opportu-
nity to tell the agent the complete story. Id. The prosecutor
asked, “[W]as the reason that he didn’t have an opportunity,
or that he didn’t want agent Murray to know where Jose
Angel Ortega was right then.” Id.
Because Ochoa “did not remain silent in response to
Miranda warnings,” the court held that any discrepancies
between his post-arrest statement and his trial testimony
raised a question of credibility. Id. at 1286. Therefore, this
court held that “the jury is entitled to all the relevant evidence
bearing on credibility” and that it was proper for the prosecu-
tor to “probe all post-arrest statements and the surrounding
6988 UNITED STATES v. CARUTO
circumstances under which they were made, including defen-
dant’s failure to provide critical details.” Id. Noting that the
“trial transcript reveal[ed] that defendant’s version of the
events of his trip into and return from Mexico [was] quite dif-
ferent from the version he proposed . . . upon his arrest,” the
court held that the fact that Ochoa’s “statements, taken as a
whole, reveal[ed] an inconsistency” was sufficient to justify
this inquiry. Id. at 1286-87 (emphasis added). “Moreover,”
the court held, “we do not believe the prosecutor was attempt-
ing to draw meaning from the defendant’s silence. The ques-
tioning clearly related specifically to details that defendant
offered at trial but failed to reveal at the time of his arrest.”
Id. at 1287. The court summarized its holding:
Because defendant’s trial testimony raised an
issue of credibility, which opened to the prosecutor
the circumstances of his post-arrest statement, the
prosecutor’s examination of agent Murray properly
revealed the limits of defendant’s statement at time
of arrest. Similarly, the prosecutor argued vigorously
in closing argument about the credibility of defen-
dant’s trial testimony, but stopped short of inviting
a conviction from his silence.
Id. at 1287 (footnote omitted).
Here, we must decide whether the prosecution impermiss-
ibly highlighted omissions from Caruto’s post-arrest state-
ment resulting from her decision to invoke her Miranda
rights. For this reason, Charles and Ochoa-Sanchez are distin-
guishable. As the Ochoa-Sanchez court noted, “[i]f defendant
had invoked his right to remain silent in response to Miranda
warnings, questioning that asked why certain information had
not been revealed would have been improper.” Id. at 1286
(citing Doyle, 426 U.S. 610; Hale, 422 U.S. 171; Bradford v.
Stone, 594 F.2d 1294 (9th Cir. 1979) (per curiam)). Similarly,
the defendant in Charles did not invoke his rights, and the
examination that the Court found permissible explored a spe-
UNITED STATES v. CARUTO 6989
cific discrepancy between his post-arrest statement and his
trial testimony.
[3] In another non-invocation case, this court considered
the effect of a defendant’s decision not to answer one in a
series of questions. In United States v. Lorenzo, 570 F.2d 294
(9th Cir. 1978), the court found that such a “non-answer” did
not constitute “either a total or a selective revocation of [the
defendant’s] earlier waiver of his Fifth Amendment rights.”
Id. at 297-98. Therefore, the court held that Lorenzo’s decli-
nation to respond to a single question could not be attributed
to an exercise of his Miranda rights and “it was thus not error
to allow testimony as to that event.” Id. at 298. In contrast,
Caruto did not simply fail to answer a specific question.
Rather, she specifically invoked her Miranda rights and
stopped the interview altogether. Therefore, her silence with
respect to the unasked questions is clearly attributable to her
exercise of those rights.
This clear invocation also distinguishes Caruto’s case from
United States v. Makhlouta, 790 F.2d 1400 (9th Cir. 1986),
another non-invocation case in which this court held that
cross-examination that “emphasized the inconsistency
between Makhlouta’s post-arrest statements and his entrap-
ment defense at trial” did not constitute Doyle error. Id. at
1403 (emphasis added). In that case, the FBI agent who inter-
viewed Makhlouta following his arrest testified that, after
being advised of his Miranda rights, Makhlouta
advised that the substance he had given to Special
Agent Miller and myself earlier in the day he knew
in fact was heroin. He knew it was wrong; a viola-
tion to be doing this. However, he didn’t anticipate
he would get caught. He wouldn’t say where he had
gotten the heroin from earlier in the day.
Id. Makhlouta did not invoke his Miranda rights at any time.
6990 UNITED STATES v. CARUTO
[4] In contrast to his post-arrest statement, Makhlouta pro-
ceeded on an entrapment theory at trial. This court found that
Makhlouta’s post-arrest “statements do more than neglect to
suggest the defense of entrapment. They in fact offer a single
explanation of his criminal activity . . . that is arguably incon-
sistent with the entrapment defense since it is evidence of
criminal predisposition.” Id. at 1404. In Caruto’s case, it was
what she did not say in her post-arrest statement, not her state-
ment, that the prosecution used to impeach her. Unlike
Makhlouta, Caruto did invoke her Miranda rights and did not
offer a post-arrest explanation that conflicted with her trial
explanation.
As the prosecution acknowledged at trial, the alleged
inconsistencies here were omissions attributable to Caruto’s
invocation of her Miranda rights.4 For example, the trial court
asked the prosecutor whether Caruto had ever been asked
about selling the truck. The prosecution responded, “I don’t
know that the agent necessarily had a chance to. She did
invoke your Honor. But that is a pretty critical detail.” When
the district court noted that “there was no follow-up question,
no clarification at all” about Caruto’s statement that she was
helping a friend, the prosecution explained, “Well, your
honor, I guess the problem there is, the defendant didn’t pro-
vide any clarification. She invoked.” Further, on cross-
examination, defense counsel asked Kelley if the identity of
the individuals who borrowed the truck was “unknown”
because Caruto wasn’t asked who they were. Kelley
responded, “That’s possible.”
[5] Caruto could not fully explain why her post-arrest state-
4
In addition, one alleged inconsistency, that Caruto was driving to
Calexico and not Los Angeles, was not inconsistent at all according to
Kelley’s own revised interview notes. According to Caruto’s trial testi-
mony, Jimenez told her that he would pay her for the truck in Los Ange-
les, and according to Kelley’s notes, Caruto had stated that she was told
to drive to Los Angeles. These statements are not inconsistent.
UNITED STATES v. CARUTO 6991
ment was not as detailed as her testimony at trial without dis-
closing that she had invoked her Miranda rights. Moreover,
the prosecution commented on her failure to explain further
what had happened. This is the type of penalty for exercising
one’s Fifth Amendment rights that Doyle prohibits.
[6] As stated in Charles, the primary inquiry in cases where
a defendant waives his or her Miranda rights is whether the
prosecutor’s question or argument is “designed to draw mean-
ing from silence” or instead merely “to elicit an explanation
for a prior inconsistent statement.” 447 U.S. at 409. The
Supreme Court noted that “[e]ach of two inconsistent descrip-
tions of events may be said to involve ‘silence’ insofar as it
omits facts included in the other version.” Id. However, the
Court held that “Doyle does not require any such formalistic
understanding of ‘silence,’ and we find no reason to adopt
such a view in this case.” Id. Where, as here, it is a defen-
dant’s invocation of her Miranda rights that results in the
omitted facts that create the difference between the two
descriptions, cross-examination based on those omissions
draws meaning from the defendant’s protected silence in a
manner not permitted by Doyle.
[7] Even in non-invocation cases in this and other circuits,
the differences between the post-arrest statement and the trial
testimony must be “arguably inconsistent”; mere omissions
are not enough to justify cross-examination or argument
regarding what was not said at the time of arrest. See, e.g.,
Ochoa-Sanchez, 676 F.2d at 1286 (inquiry allowed where
statement “may arguably be inconsistent with the trial story”
(internal quotation marks omitted)); United States v. Laury,
985 F.2d 1293, 1303 (5th Cir. 1993) (holding that “prosecu-
tor’s ‘manifest intent’ ” was to comment on defendant’s post-
arrest silence where no inconsistencies existed and prosecutor
commented on what defendant did not rather than what he did
tell authorities); United States v. Canterbury, 985 F.2d 483,
486 (10th Cir. 1993) (holding that “questions were not
designed to point out inconsistencies” where defendant’s
6992 UNITED STATES v. CARUTO
“post-arrest statements [were] not inconsistent with his
entrapment defense”); Bass v. Nix, 909 F.2d 297, 304 (8th
Cir. 1990) (holding that impeachment was based on silence
where post-arrest statement did not “conflict in any manner
with [defendant’s] trial testimony” because the “only relevant
post-arrest conduct was his silence”); United States v. Casa-
mento, 887 F.2d 1141, 1179 (2d Cir. 1989) (holding that
Charles does not apply where statement to authorities and tes-
timony on direct examination were not inconsistent). Where
a defendant has invoked her Miranda rights, it is even more
important that the distinction between inconsistency and
omission be carefully observed. Here, Caruto’s post-arrest
statement and her trial testimony were not inconsistent.
[8] The prosecutor’s argument emphasized omissions from
Caruto’s post-arrest statement that resulted from her invoca-
tion of her Miranda rights and thus invited the jury to draw
meaning from silence. Therefore, we hold, under Doyle, that
allowing the argument violated Caruto’s due process rights.
IV.
[9] Under the harmless error standard, we must consider
whether it is clear beyond a reasonable doubt that the jury
would have returned a verdict of guilty even without the pros-
ecutor’s impermissible argument. United States v. Hasting,
461 U.S. 499, 510-11 (1983). “The burden of proving a con-
stitutional error harmless beyond a reasonable doubt rests
upon the government.” United States v. Velarde-Gomez, 269
F.3d 1023, 1035 (9th Cir. 2001) (en banc) (citing Chapman
v. California, 386 U.S. 18, 24 (1967)). When addressing com-
ments on silence, we consider in turn three factors, “(1) the
extent of comments made by the witness, (2) whether an
inference of guilt from silence was stressed to the jury, and
(3) the extent of other evidence suggesting defendant’s guilt.”
Id. at 1034 (internal quotation marks omitted).
[10] With regard to the first factor — the extent of the com-
ments — we note that of the five-and-one-half pages of tran-
UNITED STATES v. CARUTO 6993
script of the prosecutor’s closing argument, approximately
one-and-one-half pages were used to attack the credibility of
Caruto’s testimony based on what she did not say in her post-
arrest statement. In its rebuttal argument, the prosecution
again spent a considerable amount of time discussing the
omissions from Caruto’s post-arrest statement. The prosecu-
tion explicitly argued that Caruto would have told the agent
various other things if she were indeed innocent.
[11] The government argues, however, that in assessing
prejudice, we should not consider most of the prosecutor’s
discussion of Caruto’s omissions. According to the govern-
ment, Caruto only objected to “two discrete comments” in the
prosecutor’s closing and rebuttal arguments, so only those
comments should be considered in the harmless error analy-
sis. In fact, Caruto entered four objections, all of which were
overruled, to the prosecutor’s discussion of Caruto’s omis-
sions, and those objections were not limited to “discrete com-
ments.” We therefore consider the whole of the prosecutor’s
commentary on Caruto’s silence and conclude that it was
extensive. The first Velarde-Gomez factor is therefore satis-
fied.
[12] As to the second factor — whether the inference from
silence was stressed to the jury — we conclude that it was.
The parties agree that the central question in this case was
whether Caruto knew that the drugs were in her truck.
Because she testified at trial and explained how the cocaine
could have been placed there without her knowledge, Caru-
to’s credibility became a key issue, as demonstrated by the
parties’ closing arguments.
[13] With regard to the third factor — other evidence of
Caruto’s guilt — there was some such evidence, but all of it
was circumstantial. In addition to the agents’ testimony and
Caruto’s statements, the prosecution presented evidence that
the truck could not hold a significant amount of gas and
argued that the truck would not have made it to Los Angeles.
6994 UNITED STATES v. CARUTO
However, there was no evidence that Caruto would not have
made it to her home in Calexico, where she testified she was
going, on the amount of gas in the tank. The prosecution also
presented evidence that Caruto had been stopped at the border
five months earlier driving a different car that contained a
false compartment. The compartment was empty at that time,
and there was no evidence that the car had ever crossed the
border, before or since. Finally, the government presented tes-
timony and argument that it is unlikely that a drug dealer
would use a “blind mule” to carry drugs worth over $1 mil-
lion dollars.
[14] Where the case against a defendant rests on circum-
stantial evidence and the defendant has “offered ‘plausible
innocent explanations’ . . . ‘credibility [is] of utmost impor-
tance.’ ” Velarde-Gomez, 269 F.3d at 1035 (quoting United
States v. Foster, 227 F.3d 1096, 1101 (9th Cir. 2000)). There-
fore, a constitutional error that goes directly to the defendant’s
credibility usually is not harmless where the defendant’s the-
ory of the case is plausible, even if it is not particularly com-
pelling. Id. The third Velarde-Gomez factor therefore supports
a finding of prejudice.
[15] Further, circumstances surrounding the jury’s delibera-
tion demonstrate that the error was not harmless. The jury
asked to see a copy of Kelley’s written report, demonstrating
that it was concerned with Caruto’s post-arrest statement. The
jury deliberated for approximately one-and-one-half days
after only one-and-one-half days of evidence. “Longer jury
deliberations ‘weigh against a finding of harmless error
because lengthy deliberations suggest a difficult case.’ ” Id. at
1036 (quoting United States v. Varoudakis, 233 F.3d 113, 126
(1st Cir. 2000)).
V.
[16] In these circumstances, allowing the prosecutor to
emphasize the omissions in Caruto’s post-arrest statement and
UNITED STATES v. CARUTO 6995
to argue that those omissions were inconsistent with her trial
testimony penalized her for invoking her Fifth Amendment
right to remain silent. Therefore, we reverse Caruto’s convic-
tion and remand for a new trial.5
REVERSED and REMANDED.
5
We need not reach Caruto’s alternative arguments for reversal.