Argued and Submitted, Pasadena, California February
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-00371-JAH-1. John A. Houston, District Judge, Presiding.
Caitlin E. Howard, Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Anne Kristina Perry (argued), Assistant United States Attorney, Laura E. Duffy, United States Attorney, and Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, San Diego, California, for Plaintiff-Appellee.
Before: Mary M. Schroeder and Richard R. Clifton, Circuit Judges, and John R. Tunheim, District Judge.[*]
CLIFTON, Circuit Judge
This case concerns the scope of a criminal defendant's constitutional rights under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which prevents impeachment of a defendant with his post- Miranda silence. Defendant-Appellant Jose Angel Ramirez-Estrada was convicted after a jury trial of attempted illegal reentry and making a false claim to U.S. citizenship. Ramirez-Estrada testified in his own defense, but the government in rebuttal introduced his prior statements in response to booking questions posed by a Customs and Border Protection (" CBP" ) officer after Ramirez-Estrada had been arrested and had invoked his Miranda rights. Nothing Ramirez-Estrada said in those statements served to impeach his testimony. Rather, it is what he failed to say that was relevant to undermine his credibility. We thus conclude that the use of Ramirez-Estrada's post-invocation silence to impeach him violated his rights under Doyle . Because this error was not harmless beyond a reasonable doubt, we reverse.
Ramirez-Estrada was indicted for attempted illegal reentry in violation of 8 U.S.C. § 1326 and for making a false claim to U.S. citizenship in violation of 18 U.S.C. § 911. He was found guilty by a jury on both charges. The district court sentenced him to twenty-four months' imprisonment on each count, with the sentences to run concurrently. Ramirez-Estrada timely appealed from that final judgment.
The facts were mostly undisputed at trial. Ramirez-Estrada is an alien who had been deported from the United States on previous occasions. At some point during his prior incarceration in the United States in 2005, Ramirez-Estrada sustained a serious jaw injury, regarding which the defense presented extensive testimony. Sometime thereafter, Ramirez-Estrada was involved in court proceedings in front of United States District Judge Dana Sabraw. Judge Sabraw recommended to the Bureau of Prisons that Ramirez-Estrada's jaw injury be treated while he was in custody. The injury was never treated, and Ramirez-Estrada was later deported to Mexico.
In the early morning hours of January 4, 2011, without having obtained permission to reenter the United States, Ramirez-Estrada
approached the San Ysidro Port of Entry. The only dispute at trial concerned what occurred when Ramirez-Estrada approached the primary inspection area of the Port of Entry.
CBP Officer Matthew Ponce de Leon manned the primary inspection booth that Ramirez-Estrada approached. Although Officer Ponce de Leon had a difficult time recalling Ramirez-Estrada's name and other details of their encounter, he testified that when he asked Ramirez-Estrada about his citizenship, Ramirez-Estrada responded that he was a U.S. citizen born in Las Vegas but claimed to have no paperwork because it had been stolen. Because Ramirez-Estrada gave Officer Ponce de Leon his true identity, however, the officer was able to look him up and discovered the prior deportations. He then referred Ramirez-Estrada to secondary inspection. Officer Ponce de Leon also testified that at no point did Ramirez-Estrada complain of any physical ailments. On cross-examination, the defense called into question Officer Ponce de Leon's memory and Spanish language skills.
Ramirez-Estrada testified differently. He did not approach the Port of Entry in an attempt to reenter the United States, he testified, but only to seek help for his jaw injury, which had become increasingly painful with time and for which he had been unable to obtain any treatment in Mexico. He believed that based on Judge Sabraw's recommendation he would get treatment from federal officials. He explained all this to Officer Ponce de Leon and other officers at neighboring booths. He was then told to leave, but he did not because he was desperate to get treatment for his jaw injury, and so he was arrested and sent to the secondary inspection area. He also testified that he provided the officers with a Mexican identification card containing his true name, photo, and fingerprint. He denied that he ever claimed to be a U.S. citizen or to have been born in Las Vegas, but he acknowledged having told the officers that he had lived near that city, among other places. His credibility was challenged on cross-examination, in particular by suggestions that Ramirez-Estrada might not know what procedures would take place at the border or that the officers would ask for documents.
No other witness testified directly as to the events at primary inspection. The government sought to impeach Ramirez-Estrada's testimony by offering testimony in rebuttal by CBP Officer Gabriela Nicasio, who was responsible for booking Ramirez-Estrada several hours following the encounter between Ramirez-Estrada and Officer Ponce de Leon. The district court permitted that rebuttal testimony, over defense counsel's objections, including a Doyle objection. It is the allowance of that testimony that is central to this appeal.
As part of the booking process, Officer Nicasio read Ramirez-Estrada his Miranda rights, which he invoked by electing to wait for an attorney before answering any questions. Officer Nicasio thereafter did not ask any questions about the circumstances of Ramirez-Estrada's crime, but instead asked him routine booking questions. She testified about that at trial, as the government's sole rebuttal witness. Aside from background information and an identification of Ramirez-Estrada as the suspect apprehended on January 4, 2011, her direct rebuttal testimony consisted entirely of the following:
Q. Agent Nicasio, when you met with the defendant, did you ask him some questions?
A. Yes, I did.
Q. Did you ask him questions regarding his health?
A. Yes, I ...