United States v. Isidro Morales , 854 F.2d 61 ( 1988 )

GEE, Circuit Judge:

The issues on this appeal arise from references made at trial to the failure of the appellant, at the time of his arrest, to explain to the arresting officers that he was conducting an undercover operation as he later claimed. Appellant Morales contends that these references infringe the rule of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

Facts

Appellant Isidro Morales was Constable of Precinct 3, Brooks County, Texas. Undercover DEA Agent Tittle, acting on a confidential tip that Morales was corrupt, approached Morales indirectly by means of a taped telephone conversation and solicited his help in smuggling drugs. Morales initially appeared reluctant but eventually agreed to help. Morales enlisted the aid of an accomplice and arranged to transport a small “test load” of marijuana.

On the day before the scheduled test run, Agent Tittle and his informant again met with Morales. Agent Tittle tried to give an agreed upon $500 to Morales who said, “No, don’t give it to me. Give it to [my accomplice]_” ¹ Agent Tittle nevertheless gave Morales the cash. Morales turned and gave it to his accomplice. As Agent Tittle left this meeting he signaled his colleagues, who moved in to arrest Morales and his accomplice.

The Brooks County Sheriff, with whom Morales was acquainted, accompanied the federal agents. Sheriff Castellano stopped his vehicle and asked Morales in Spanish, “What happened, Isidro?” Morales replied in Spanish, "I don’t know why these men are bringing me here.” Morales said nothing further. Morales received Miranda warnings, and though the record is unclear we shall assume that they were given before Castellano’s question. Four to five hours after the arrest, Morales informed the DEA agent that he had been conducting his own undercover investigation and had agreed to aid in the smuggling scheme because he believed that the agent and the informant were drug traffickers.

At trial, Morales maintained that he was involved in the smuggling scheme in an undercover capacity, attempting to arrest Agent Tittle and the informant. He also presented an entrapment defense. The prosecutor contended that Morales contrived his “undercover investigation” defense during the four-hour period after his arrest. The government relied on Morales’s post-arrest silence to support this theory, and both the prosecutor and the trial judge questioned him regarding it without objection by the defense.

Analysis

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) prohibits the use of post-arrest, post-Miranda silence to impeach a defendant’s trial testimony. In Doyle, when defendant was arrested on drug charges he said “I don’t know what you are talking about” or “you got to be crazy.” 426 U.S. at 614 n. 5, 96 S.Ct. at 2243 n. 5; id. at 622 n. 4, 96 S.Ct. at 2247 n. 4 (Stevens, J., dissenting). At trial, Doyle testified that he had been framed. The state introduced his post-arrest “silence” to impeach his testimony, arguing that Doyle’s post-arrest failure to assert his innocence undermined his trial testimony. The Court held that this violated the fifth amendment because the silence is presumed to be an exercise of Miranda rights.

Doyle and its progeny, however, recognize that if a post-Miranda statement is inconsistent with defendant’s trial testimony, the inconsistent statement and subsequent silence or failure to explain the statement is admissible to impeach the defendant. See id. at 617 n. 7, 96 S.Ct. at 2244 n. 7; Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980); Brogdon v. Butler, 838 F.2d 776, 779 (5th Cir.1988); Lofton v. Wainwright, 620 F.2d 74, 78 (5th Cir.1980). Once a defendant makes a statement, it can no longer be presumed that his silence is based on Miranda.

The government contends, in response to Morales’s claim of a Doyle violation, that Morales’s statement was inconsistent with his trial testimony that he was working undercover. We need not address the contention, however, as no objection was made to the references and they do not amount to plain error.

Pursuant to the plain error doctrine, we may notice serious defects in trial proceedings even though they were not brought to the trial court’s attention. Rule 52(b), Fed. R.Crim.P. Even so, the Supreme Court has made it clear that the doctrine is not lightly to be applied:

The plain-error doctrine of Federal Rule of Criminal Procedure 52(b) tempers the blow of a rigid application of the contemporaneous-objection requirement. The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings.” In other words, the plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” Any unwarranted extension of this exacting definition of plain error would skew the Rule’s “careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.”

United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985) (citations and footnotes omitted).

We see no miscarriage of justice here. The evidence of Agent Tittle, if credited by the jury, was damning. Taken together with the taped conversation, it was such as to overwhelm Morales’s unlikely story that he — essentially a process-server — had suddenly decided to constitute himself an undercover drug agent.

The same is true of Morales’s claim that counsel was ineffective for failure to object to the comments on his silence and for presenting both a claim of innocence and an entrapment defense. Even assuming that these were professionally unreasonable errors, it remains necessary for reversal that there also be the probability of a different result resulting from them sufficient to undermine confidence in the trial’s outcome. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). We think no such probability has been shown. Morales’s tale that he had suddenly, without effectively coordinating with any other law enforcement officer or agency, determined to renounce his essentially house-keeping law-enforcement job and embark on an undercover enterprise trapping dope smugglers in company with his probationer friend all but defies belief to begin with. Ranged against the other record evidence, it might have served as the basis for a jury pardon; but little more can have been hoped for from it.

AFFIRMED.

1 . The accomplice was on probation for a conviction of stealing guns.