United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-50449
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
STEVEN ANDREW BERG
Defendant - Appellant
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:04-CR-268-ALL
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Before KING, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Steven Andrew Berg appeals his conviction for possession
with the intent to distribute more than five kilograms of
cocaine, in violation of 21 U.S.C. § 841. He argues that the
prosecutor’s closing argument improperly commented on his post-
arrest, post-Miranda silence, in violation of Doyle v. Ohio, 426
U.S. 610 (1976), and that the error requires automatic reversal.
A prosecutor violates a defendant’s due process rights by
commenting on a defendant’s post-arrest, post-Miranda warning
*
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this opinion should not be published and is not precedent except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.
No. 05-50449
-2-
silence in an attempt to impeach the defendant’s exculpatory
testimony offered at trial. Doyle v. Ohio, 426 U.S. 610, 619-20
(1976). Contrary to Berg’s assertion, the prosecutor’s comments
regarding his silently “looking straight ahead” reference his
silence during secondary inspection, which silence occurred prior
to any arrest and thus do not violate Doyle. See United States
v. Musquiz, 45 F.3d 927, 930 (5th Cir. 1995).
Berg also objects to the prosecutor’s comment on his failure
to say anything after he was arrested and placed in a holding
cell. Although the remark referenced Berg’s post-arrest silence,
there is no evidence in the record that Berg’s silence at that
point was induced by Miranda warnings, a prerequisite for a Doyle
violation. See Doyle, 426 U.S. at 619-20. Even if a Doyle
violation is assumed, however, the error was harmless given that
the statement was not linked to the exculpatory statement Berg
offered at trial, that the trial court sustained Berg’s objection
and gave a curative instruction, and that the evidence of Berg’s
guilt was overwhelming. See United States v. Rodriguez, 43 F.3d
117, 123 (5th Cir. 1995); United States v. Carter, 953 F.2d 1449,
1466 (5th Cir. 1992); Chapman v. United States, 547 F.2d 1240,
1247-48 (5th Cir. 1977).
The district court’s judgment is AFFIRMED.