United States v. Augustin Gomez Luna

539 F.2d 417, 1976 U.S. App. LEXIS 7013

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 22, 1976
• Docket: 76-2326
• Status: Published

Opinion

PER CURIAM:

Augustin Gomez Luna was convicted by a jury of possession with intent to distribute approximately 304 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1), and he appeals.

In the course of his closing argument, the prosecuting attorney stated,

“Did we ever hear any statements that the defendant made as to this is not my stuff, I’m looking for my friends? You guys have the wrong man, when he was arrested? Think about it.” 1

In Doyle v. Ohio, 1976,-U.S.-, 96 S.Ct. 2240, 49 L.Ed.2d 91, the Supreme Court forbade usage of a defendant’s silence following arrest and Miranda warnings to impeach an explanation subsequently given at the trial. In United States v. Harp, 536 F.2d 601 (5th Cir. 1976), we applied Doyle to use of silence in an impeaching fashion during the course of the government’s closing argument. Accordingly, Luna’s conviction must be reversed and a new trial held.

REVERSED AND REMANDED.

1 . The prosecutor’s comment referred to Luna’s silence after he had been arrested and warned as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).