United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 5, 2007
FOR THE FIFTH CIRCUIT
______________________
Charles R. Fulbruge III
No. 05-10964 Clerk
______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIO ALFREDO SALINAS,
Defendant-Appellant.
____________________________________________________
On Appeal from the United States District Court for the
Northern District of Texas, Dallas Division,
No. 3:04-CR-208-N
_____________________________________________________
Before GARWOOD, DENNIS, AND OWEN, Circuit Judges.
DENNIS, Circuit Judge.
This case is before us on appeal of defendant Mario
Alfredo Salinas’s conviction for unlawful possession of
a firearm by a convicted felon, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). For the reasons stated
below, we AFFIRM Salinas’s conviction.
1
I. Background and Proceedings Below
At approximately 11:15 p.m. on April 9, 2003,
defendant Mario Alfredo Salinas was driving a black, 1999
GMC Yukon. Officer Erwin Fulcher of the Carrollton,
Texas police department stopped the vehicle because it
had a defective tail light. Officer Fulcher asked
Salinas for his license and proof of insurance. Salinas
gave the officer his driver’s license, but stated that he
did not have proof of insurance because he was in the
process of purchasing the vehicle. Officer Fulcher
eventually arrested Salinas for failure to provide proof
of insurance and transported Salinas to the Carrollton
police station.
After Salinas was arrested, additional Carrollton
police officers on the scene conducted an inventory
search of the Yukon. During the search, officers found
a brown paper bag, which contained $3,397 in cash,
between the driver’s seat and the center console.
Beneath the bag, officers found a loaded Ruger 9mm
semiautomatic pistol. Officers also found a black pouch
containing a loaded Rossi .357 Magnum revolver under the
2
front passenger seat. The Yukon’s rear cargo area
contained a gym bag with $168 and some vitamins inside
it. At the police station, officers found $2,168 in cash
in Salinas’s jacket pocket.
Two days after his arrest, Salinas returned to the
Carrollton police station and said that he wished to pick
up his “money and other stuff.” The property room
officer stated that all of the seized property was
evidence and could not be released to Salinas. The
officer also stated that, because Salinas was a convicted
felon, the firearms could not be returned to him.
Salinas responded, “I know that,” and he then left.
Salinas ultimately was charged with one count of
unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At
trial, Salinas’s defense was that he had borrowed the
Yukon from his friend Rosendo Moreno, and that he did not
know that the firearms were in the car. Moreno testified
at trial that he purchased the Yukon on April 8, 2003
from a man named Henry Lopez. Moreno stated that, on
April 9, 2003, he took the vehicle to Big Rig Detailers,
3
an automotive shop at which Salinas worked, to have some
hail damage repaired and to have the car painted. While
he was there, Moreno stated, Salinas told Moreno that his
car was in the shop, and he asked Moreno whether he could
borrow the Yukon. To support Moreno’s testimony, the
defense offered into evidence a bill of sale showing a
sale from Lopez to Moreno on April 8, 2003. The bill of
sale indicated that it had been notarized by Jose
Francisco May.
Moreno also testified that the cash and the two
firearms found in the Yukon belonged to him. He stated
that he purchased the .357 Magnum in a “street buy,” and
that he purchased the 9mm from a friend named Carlos
Hernandez. Moreno testified that the guns were in the
Yukon because he had used them at a gun range earlier on
April 9, 2003, before he loaned the vehicle to Salinas,
and that he kept the firearms loaded because he had
previously been the victim of an attempted carjacking.
On cross-examination, Moreno admitted that he did not
have a permit for either weapon, that the firearms were
not registered to him, and that he did not have any
4
documentation to prove that he owned the firearms. The
prosecution also cross-examined Moreno at some length
about other aspects of his version of events, including
the fact that, although he claimed that the $3,397 found
in the Yukon belonged to him, he had never made any
attempt to recover the money from the Carrollton police
department.
The defense also presented testimony from Carlos
Hernandez, who testified that he sold Moreno the 9mm in
March 2003, and from Salinas’s employer, Christopher
Cruz, who stated that he recalled that Moreno brought a
sport utility vehicle to Big Rig Detailers in April 2003
and that Salinas had borrowed the vehicle. Salinas did
not testify in his own defense at the trial.
In rebuttal, the prosecution presented testimony from
Henry Lopez, the registered owner of the Yukon. Lopez
testified that he did not sell the Yukon to Moreno on
April 8, 2003. Lopez stated that he sold the Yukon to a
friend named Shane Clendening on April 1, 2002, and that
he believed that the vehicle had since been resold
several times, but that the title had never been
5
transferred out of his name. Lopez also stated that,
although he signed a bill of sale that purported to
describe a sale to Rosendo Moreno on April 8, 2003, he
actually signed the document on April 16, 2003, and he
did so only because he believed that it would help to get
the title transferred out of his name. Lopez testified
that there was not a notary public present when he signed
the bill of sale. The government also called Jose
Francisco May, the notary public, who testified that he
did not notarize the bill of sale between Lopez and
Moreno.
On January 20, 2005, a jury convicted Salinas, and on
July 11, 2005, the district court sentenced him to 57
months in prison. On appeal, Salinas makes two
arguments. First, he argues that the prosecution
improperly attempted to use his post-arrest silence as
substantive evidence of his guilt. Second, Salinas
claims that the evidence at trial was insufficient to
support his conviction.
6
II. The Prosecution’s References to Salinas’s Post-
Arrest Silence
Salinas claims that the prosecution improperly made
reference to his post-arrest silence at three points
during its case-in-chief. First, during the
prosecution’s opening argument, the prosecutor stated,
“At no time, at no time, the evidence is going to show,
that the defendant denied ownership of the money or
guns.” Defense counsel immediately objected to that
remark. The court sustained the objection and reminded
the jury that it was to render its verdict only on the
basis of the evidence presented, not on the arguments of
counsel.
Second, during the government’s examination of
Officer Fulcher, who arrested Salinas and who was with
Salinas at the Carrollton police station when the
firearms were discovered in the Yukon, the prosecutor
asked Officer Fulcher “how, if at all” Salinas reacted
when he heard that firearms had been found in the Yukon.
Defense counsel objected before the witness could answer,
and the court sustained the objection.
7
Third, later in its direct examination of Officer
Fulcher, the prosecution asked Officer Fulcher whether
Salinas made any statements after his arrest. Officer
Fulcher answered, “No, sir.” Defense counsel again
objected, and the court sustained the objection. Defense
counsel also requested that the jury be instructed to
disregard the statement. The trial judge stated that he
would not then instruct the jury, but would consider an
instruction at a later time. Defense counsel apparently
never reiterated his request for an instruction. In its
charge to the jury, however, the court instructed the
jury that the statements and arguments of the lawyers
could not be considered as evidence and that the jury was
to disregard any question to which the court had
sustained an objection.
Salinas asserts that each of those statements was an
improper comment on his post-arrest silence, in violation
of his constitutional rights. The government maintains
that the comments and questions were permissible. The
government points out that Salinas did not receive the
8
Miranda1 warnings at the time of his arrest,2 and it
argues that the prosecution can permissibly refer to a
defendant’s pre-Miranda warning silence at trial.
Because Salinas did not properly preserve his claim
of error regarding the prosecutor’s comments on his post-
arrest silence in the district court, we review this
claim only for plain error. Although Salinas’s counsel
timely objected to each of the prosecutor’s references to
Salinas’s post-arrest silence, 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.3 Salinas’s
counsel never took exception to the district court’s
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Officer Fulcher testified at trial that he did not read
Salinas the Miranda warnings because he had no intention of
interrogating Salinas.
3
With respect to the comment made during the prosecutor’s
opening statement, the district court, at Salinas’s request,
instructed the jury that the lawyers’ comments were not evidence.
While the trial court declined to immediately instruct the jury to
disregard the final improper remark—the court stated that it was
“not going to instruct at this time,” but would “consider that
later”—the district court did later charge the jury that it was to
disregard any question to which the court sustained an objection.
In addition, nothing in the record indicates that Salinas again
raised the issue with the district court or objected to its
handling of the situation.
9
handling of his objections, and, significantly, Salinas
never requested that the district court declare a
mistrial. Thus, Salinas effectively received all of the
relief that he requested from the district court. When
a defendant asks this court to reverse a conviction under
these circumstances, the defendant essentially asks us
“‘to go against the implicit judgment of both the trial
court and the defendant’s trial counsel that the trial
court’s corrective action was adequate and appropriate.’”
United States v. Carter, 953 F.2d 1449, 1465-66 (5th Cir.
1992) (quoting United States v. Canales, 744 F.2d 413,
431 (5th Cir. 1984)). In such cases, we consider the
challenged comments under the plain error standard. See
id. at 1466 (applying plain error standard where trial
court sustained defendant’s objections and defendant did
not request mistrial; stating that “logically there is
little difference between a case that comes to us where
no objection has been made to the alleged impropriety and
one where no further objection has been made to the trial
judge’s handling of an impropriety”); see also Canales,
744 F.2d at 431.
10
To establish plain error, the defendant must show
that “(1) there is an error, (2) the error is clear or
obvious, and (3) the error affects his substantial
rights.” United States v. Coil, 442 F.3d 912, 916 (5th
Cir. 2006); Fed. R. Crim. P. 52(b) (“A plain error that
affects substantial rights may be considered even though
it was not brought to the court’s attention.”). An error
is considered plain, or obvious, only if the error is
clear under existing law. United States v. Olano, 507
U.S. 725, 734 (1993) (stating that a “court of appeals
cannot correct an error pursuant to Rule 52(b) unless the
error is clear under current law”). If those three
conditions are satisfied, this court may grant relief if
“the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United
States v. Ibarra-Zelaya, 465 F.3d 596, 606 (5th Cir.
2006) (citing United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005)); United States v. Garcia-Flores, 246
F.3d 451, 457 (5th Cir. 2001) (“‘Plain error occurs when
the error is so obvious and substantial that failure to
notice and correct it would affect the fairness,
11
integrity, or public reputation of judicial proceedings
and would result in manifest injustice.’”) (quoting
United States v. Mizell, 88 F.3d 288, 297 (5th Cir.
1996)).
A prosecutor’s invocation of the defendant’s exercise
of the right to remain silent can potentially implicate
two, distinct constitutional rights—due process, and the
Fifth Amendment privilege against self-incrimination. We
consider each in turn.
A. Due Process
In a series of cases, the Supreme Court has
established that due process prevents the prosecution
from commenting at trial on a criminal defendant’s
silence in response to the Miranda warnings, but that due
process does not prohibit the prosecution from impeaching
a defendant’s trial testimony by referring to the
defendant’s pre-arrest, or post-arrest, but pre-Miranda,
silence.
In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme
Court held that the Due Process Clause ordinarily
prohibits the use of a defendant’s post-Miranda silence
12
to impeach his trial testimony.4 The enduring rationale
of Doyle is that, because the Miranda warnings carry with
them an implicit assurance by the government that it will
not use the defendant’s exercise of the right to remain
silent against him, “it would be fundamentally unfair and
a deprivation of due process to allow the arrested
person’s silence to be used to impeach an explanation
subsequently offered at trial.” Doyle, 426 U.S. at 618.5
Consistent with Doyle’s emphasis on fairness, the Supreme
Court held in two later cases that it does not violate
due process for the prosecution to impeach a defendant’s
testimony by reference to the defendant’s pre-arrest, or
post-arrest, but pre-Miranda, silence. See Fletcher v.
4
Due process also generally prohibits the use of a defendant’s
post-Miranda silence as substantive evidence of guilt. See United
States v. Moreno, 185 F.3d 465, 473 (5th Cir. 1999). The general
rule of Doyle is not absolute, however. For example, the
prosecution can use a defendant’s post-Miranda silence to rebut
testimony by the defendant that he cooperated with the police at
the time of his arrest. See United States v. Rodriguez, 260 F.3d
416, 421 (5th Cir. 2001).
5
The Doyle court also noted that such silence is not
necessarily probative because it is “insolubly ambiguous.” Doyle,
426 U.S. at 617. But subsequent decisions have made clear that the
“fundamental fairness” rationale was the key feature of Doyle.
E.g., Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (noting that
Doyle rests on fundamental fairness and finding that pre-Miranda
silence “is probative”); see also Rodriguez, 260 F.3d at 421 n.1
(stating that Doyle’s “‘insolubly ambiguous’ rationale has since
been discarded”).
13
Weir, 455 U.S. 603, 604-07 (1982) (post-arrest, pre-
Miranda silence); Jenkins v. Anderson, 447 U.S. 231, 239-
40 (1980) (pre-arrest silence). In Jenkins, the Court
explained that “the fundamental unfairness present in
Doyle” does not exist with respect to the use of pre-
arrest silence on cross-examination because “no
governmental action induce[s] [a defendant] to remain
silent before arrest.” 447 U.S. at 240. The Fletcher
court subsequently rejected the argument that the fact of
arrest was sufficient to trigger Doyle’s fundamental
fairness concern: “In the absence of the sort of
affirmative assurances embodied in the Miranda warnings,
we do not believe that it violates due process of law for
a State to permit cross-examination as to postarrest
silence when a defendant chooses to take the stand.” 455
U.S. at 607; see also United States v. Musquiz, 45 F.3d
927, 930-31 (5th Cir. 1995) (permitting use of pre-
Miranda silence to cross-examine defendant).
Although Fletcher clearly permits the use of a
defendant’s pre-Miranda silence to impeach the
defendant’s trial testimony, the Supreme Court has not
14
specifically decided whether the prosecution violates
Doyle by commenting on the defendant’s pre-Miranda
silence when the defendant does not testify in his own
defense. Given Fletcher’s emphasis on the affirmative
assurances of the Miranda warnings, however, it is clear
that, irrespective of whether the defendant testifies at
trial, the rationale of Doyle applies only to post-
Miranda silence. See Wainwright v. Greenfield, 474 U.S.
284, 291 n.6 (1986) (noting that “fundamental unfairness”
referred to in Doyle and its progeny “derives from the
implicit assurances of the Miranda warnings”); Combs v.
Coyle, 205 F.3d 269, 280 (6th Cir. 2000) (“[T]he Doyle
line of cases clearly rests on the theory that Miranda
warnings themselves carry an implicit assurance that
silence will not be penalized; actual receipt of the
warnings is key. Therefore, the comment on Combs’s pre-
Miranda silence did not violate due process.”).
Accordingly, because Salinas was not read the Miranda
warnings after he was arrested in this case, the
prosecutor’s comments did not violate Doyle.
15
B. The Privilege Against Self-Incrimination
Salinas also argues that the prosecution’s references
to his post-arrest silence violated the Fifth Amendment
privilege against self-incrimination.6 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. This court has previously held that a
prosecutor’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 a government
agent. See United States v. Zanabria, 74 F.3d 590, 593
(5th Cir. 1996).7 Moreover, one unpublished decision of
6
Although the Doyle line of cases focused primarily on due
process, in each of those cases, the prosecution used the
defendant’s silence only to impeach the defendant’s trial
testimony, so the privilege against self-incrimination was
inapplicable. See Jenkins, 447 U.S. at 237-38 (rejecting argument
that use of pre-arrest silence for impeachment violated privilege
against self-incrimination because “impeachment follows the
defendant’s own decision to cast aside his cloak of silence and
advances the truth-finding function of the criminal trial”). As
noted above, Salinas did not testify at trial.
7
We do not read Zanabria as categorically holding that the
prosecution’s use of a defendant’s pre-arrest silence as
substantive evidence can never violate a defendant’s constitutional
16
this court has interpreted Zanabria to permit the
substantive use of post-arrest, pre-Miranda silence. See
United States v. Garcia-Gil, 133 F. App’x 102, 108 (5th
Cir. May 27, 2005) (stating that Zanabria “prevents
Garcia-Gil from drawing a distinction based on whether
the silence was used as impeachment evidence or as
substantive evidence of guilt”).8
In addition, there is a split among the other federal
circuits as to whether a prosecutor’s use of a
defendant’s post-arrest, pre-Miranda silence as
rights. Indeed, the Zanabria court assumed, without deciding, that
pre-arrest silence could be protected by the Fifth Amendment:
Assuming without deciding that Zanabria’s pre-arrest
silence falls within the reach of “testimonial
communications” protected by the fifth amendment, the
record makes manifest that the silence at issue was
neither induced by nor a response to any action by a
government agent. The fifth amendment protects against
compelled self-incrimination but does not, as Zanabria
suggests, preclude the proper evidentiary use and
prosecutorial comment about every communication or lack
thereof by the defendant which may give rise to an
incriminating inference. We find no error in the use of
this evidence or in the prosecutor’s comments thereon.
74 F.3d at 592.
8
Although we do not today decide this constitutional issue, we
expressly decline to endorse the reasoning of the non-precedential
opinion in Garcia-Gil, which appears to have reached a broad
holding on the use of post-arrest silence by simply extrapolating
from Zanabria’s narrow holding on the use of pre-arrest silence on
specific facts.
17
substantive evidence of guilt violates the Fifth
Amendment privilege against self-incrimination. The
Seventh, Ninth, and D.C. Circuits have all squarely held
that it does. See United States v. Velarde-Gomez, 269
F.3d 1023, 1028-30 (9th Cir. 2001) (en banc); United
States v. Whitehead, 200 F.3d 634, 637-39 (9th Cir.
2000); United States v. Moore, 104 F.3d 377, 384-90 (D.C.
Cir. 1997); United States v. Hernandez, 948 F.2d 316,
322-23 (7th Cir. 1991).9 The First and Sixth Circuits
have gone further and have held that the substantive use
of even pre-arrest silence can violate the privilege
against self-incrimination. See Combs, 205 F.3d at 280-
83; Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.
1989). The Fourth, Eighth, and Eleventh Circuits have,
on the other hand, found the substantive use of post-
arrest, pre-Miranda silence during the prosecution’s
case-in-chief permissible. See United States v. Frazier,
408 F.3d 1102, 1109-11 (8th Cir. 2005); United States v.
9
The Second Circuit has assumed, without deciding, that such
use of a defendant’s pre-Miranda silence is impermissible. See
United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981).
18
Rivera, 944 F.2d 1563, 1567-68 (11th Cir. 1991); United
States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985).
We need not decide this constitutional question
today. Because this circuit’s law remains unsettled and
the other federal circuits have reached divergent
conclusions on this issue, even assuming that the
prosecutor’s comments were improper, Salinas cannot
satisfy the second prong of the plain error test—that the
error be clear under existing law. See United States v.
Bennett, 469 F.3d 46, 50 (1st Cir. 2006) (“In light of
conflicting case law, any error that might have been
committed by the district court was not ‘obvious,’ and
therefore not plain error.”); United States v. Thompson,
82 F.3d 849, 856 (9th Cir. 1996) (“Because of the circuit
split, the lack of controlling authority, and the fact
that there is at least some room for doubt about the
outcome of this issue, we cannot brand the court’s
failure to exclude the evidence ‘plain error.’”)
(internal footnote omitted). Accordingly, Salinas cannot
establish plain error, and he is therefore not entitled
to relief on this claim.
19
III. Sufficiency of the Evidence
Salinas’s remaining argument is that the evidence at
trial was insufficient to establish that he knowingly
possessed the firearms that were found in the Yukon.
Where, as in this case, the defendant moves for a
judgment of acquittal at the close of the government’s
case, but fails to renew the motion at the close of all
evidence, the court applies a stricter standard to a
sufficiency of the evidence challenge. United States v.
Green, 293 F.3d 886, 895 (5th Cir. 2002); United States
v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988). In such
cases, the court reviews the evidence only to determine
whether there has been a manifest miscarriage of justice,
which occurs only when the record is devoid of evidence
of guilt. Green, 293 F.3d at 895; Ruiz, 860 F.2d at 617.
To convict Salinas, the government had to prove (1)
that Salinas had a prior felony conviction; (2) that he
possessed a firearm; and (3) that the firearm traveled in
or affected interstate commerce. See United States v.
Guidry, 406 F.3d 314, 318 (5th Cir. 2005). The court
correctly charged the jury that possession could be
20
actual or constructive. Constructive possession can be
established by showing (1) ownership, dominion or control
over an item; or (2) dominion or control over the place
where the item is found. See United States v. De Leon,
170 F.3d 494, 496 (5th Cir. 1999). Possession may be
proved by circumstantial evidence. Id. Where there is
joint occupancy or control, however, the government must,
in addition to showing control over the place where the
item was found, present evidence to support at least a
plausible inference that the defendant knew of the item
itself. See id. at 497.
Salinas argues that the record is devoid of evidence
that he knew that the firearms were in the Yukon. As the
government asserts, however, there was evidence in the
record to support an inference that Salinas possessed the
firearms and knew that they were in the Yukon. Contrary
to his defense at trial, Salinas initially claimed that
he was in the process of purchasing the Yukon, and one of
the firearms was found within reach of the driver’s seat,
where Salinas was sitting. Moreover, two days after his
arrest, Salinas attempted to claim property—specifically,
21
his “money and other stuff”10—from the Yukon at the police
station’s property room. This evidence together was
easily sufficient for a jury to conclude that the
government satisfied its burden of proof. In addition,
the prosecution introduced substantial evidence to rebut
Salinas’s proffered defense at trial. Accordingly, we
find that there was sufficient evidence to support
Salinas’s conviction.
CONCLUSION
For the reasons stated above, we AFFIRM Salinas’s
conviction.
AFFIRMED.
10
In this regard, it is significant that one of the weapons was
found between the driver’s seat and the center console, underneath
a paper bag containing $3,397 in cash.
22