United States v. Ward

135 F.4th 1265

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 6, 2025
• Docket: 23-7088
• Status: Published

Opinion

Appellate Case: 23-7088 Document: 96-1 Date Filed: 05/06/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 6, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________________

UNITED STATES OF AMERICA

Plaintiff - Appellee,

v. No. 23-7088

KEVIN RAY WARD,

Defendant - Appellant. ___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 6:21-CR-00208-PRW-1) ___________________________________________

Hunter Haney, Deputy Federal Public Defender (Cuauhtemoc Ortega, Federal Public Defender, with him on the briefs), Los Angeles, California, for Defendant-Appellant.

Benjamin D. Traster, Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with him on the briefs), Eastern District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee. ___________________________________________

Before HOLMES, Chief Judge, SEYMOUR and BACHARACH, Circuit Judges. ____________________________________________

BACHARACH, Circuit Judge. _____________________________________________

This case involves a criminal defendant’s constitutional protection

from the government’s use of post-arrest silence. Upon making arrests, Appellate Case: 23-7088 Document: 96-1 Date Filed: 05/06/2025 Page: 2

law-enforcement officers must tell suspects that (1) they can stay silent

and (2) whatever they say can be used against them. Miranda v. Arizona,

384 U.S. 436, 467–69 (1966). But what happens when suspects are only

partially silent, talking about some things and not others? Can the

government use the partial silence against these suspects after telling them

that they can remain silent? We answer no, concluding that this use of

partial silence violates the due process right to a fair trial.

1. Mr. Ward testifies that he was forced to participate in the attack.

This case stemmed from a violent attack on three men as they

returned from a fishing trip in Indian Country. The defendant, Mr. Kevin

Ray Ward, admitted after his arrest that he had participated in the attack

with Mr. Anthony Juan Armenta. At trial, however, Mr. Ward attributed his

participation to fears for his own safety because of threats from Mr.

Armenta.

The prosecutor cross-examined Mr. Ward about his failure to mention

these threats when questioned after the arrest:

Q. Do you recall that you gave a statement to the police in this case on May 26th of 2020?

A. Yes.

Q. That would have been just two days after this incident?

Q. Okay. Armenta wasn’t in that interview with you, was he?

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A. No.

Q. It was just you by yourself?

Q. With law enforcement?

Q. And you admitted to some of the things you’ve said on direct; that you were at the river that day, that you had a .45, and that you had shot. Do you remember that?

Q. You never one time say to [the detective] that you were under duress, do you?

Q. You don’t say “I was afraid of Armenta, so I got in the car”?

Q. You don’t say “my family was in danger if I didn’t do this”?

A. No, I did not say that.

R. vol. 3, at 694–95.

In closing argument, the prosecutor reminded the jury about

Mr. Ward’s failure to mention the threats when questioned after the arrest:

And when Kevin Ward was talking with [the detective], do you know what he didn’t tell him? No details about? The duress. Not a single detail about duress. Nothing about Mr. Armenta’s duress.

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He was alone with [the detective], maybe another police officer, but Armenta wasn’t there. That was his chance. This guy’s got me under his spell. Not a word. That was his chance. Why not? He didn’t say anything because it’s not true.

And then we have Ward’s testimony two years later. And what is he testifying about? Duress. He’s on trial. It is a brand- new story told for the very first time, and it magically absolves him of criminal responsibility.

Id. at 794–95.

After the closing arguments, Mr. Ward was convicted on charges of

 assault resulting in serious bodily injury in Indian Country (18 U.S.C. §§ 2, 113(a)(6), 1151, 1153),

 assault with a dangerous weapon with an intent to do bodily harm in Indian Country (18 U.S.C. §§ 2, 113(a)(3), 1151, 1153), and

 use, carrying, brandishing, and discharge of a firearm during and in relation to a crime of violence (18 U.S.C. §§ 2, 924(c)(1)(A)(i), (ii), (iii)).

2. We review for plain error.

On appeal, Mr. Ward argues that he was denied due process when the

district court allowed the government to use his post-arrest silence.

Mr. Ward didn’t make this argument in district court, so he must satisfy

the plain-error standard. United States v. Kee, 129 F.4th 1249, 1252 (10th

Cir. 2025). Under this standard, Mr. Ward must satisfy four elements:

1. The district court committed an error.

2. The error is clear or obvious under current law.

3. The error affected a substantial right.

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4. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Id.; United States v. Griffith, 65 F.4th 1216, 1218 (10th Cir. 2023), cert.

denied, ___ U.S. ___, 144 S. Ct. 1066 (2024).

3. Mr. Ward has satisfied the first and second elements.

We consider the first and second elements together. For the second

element, an error is plain if it is “clear or obvious,” which means “contrary

to well-settled law.” United States v. Garcia, 946 F.3d 1191, 1202 (10th

Cir. 2020). “In general, for an error to be contrary to well-settled law,

either the Supreme Court or this court must have addressed the issue.”

United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003).

Mr. Ward’s claim rests on Doyle v. Ohio, where the Supreme Court

said that it’s fundamentally unfair for prosecutors to use post-arrest silence

against defendants who had been told that they could remain silent. 426

U.S. 610, 619 (1976). But what if a defendant engages in partial silence,

talking to law-enforcement officers after an arrest but deciding to stay

silent on particular matters?

We addressed this situation in United States v. Canterbury, 985 F.2d

483 (10th Cir. 1993), when a defendant claimed entrapment as a defense to

unregistered possession of a firearm (a silencer). Id. at 484–85. There

officers questioned the defendant after he had been arrested. In response,

the defendant admitted that he had bought a silencer; but he didn’t say

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anything about entrapment. Id. at 484, 486. At trial, however, the

defendant asserted a defense of entrapment. Id. at 985.

To counter this defense, the prosecutor questioned the defendant

about his failure to mention entrapment when he furnished details after the

arrest. Id. at 485. We concluded that this questioning had violated Doyle:

“The questions were not designed to point out inconsistencies between [the

defendant’s] trial testimony and his statements at the time of arrest . . . .

The inference suggested by the line of questioning is that [the defendant]

was guilty because an innocent person would have presented the

[entrapment] theory to the arresting officers.” Id. at 486.

The same situation exists here. The prosecutor

 questioned Mr. Ward about his failure to tell law-enforcement officers about the threats and

 argued in closing that this omission suggested that Mr. Ward had lied at trial.

But when Mr. Ward had been arrested, he was told that he had a

constitutional right to stay silent. Supp. R. at 2.

Granted, Mr. Ward did tell officials about some aspects of the attack,

just as the Canterbury defendant had admitted to the purchase of a

silencer. R. vol. 3 at 361–62; Gov. Exs. 45–46, 49. But the Canterbury

defendant’s statement about the silencer didn’t torpedo his right to stay

silent on other matters; and the same is true of Mr. Ward’s right to stay

silent about the alleged threats. 6 Appellate Case: 23-7088 Document: 96-1 Date Filed: 05/06/2025 Page: 7

Seeking to distinguish Canterbury, the government argues that it

used Mr. Ward’s prior inconsistent statements rather than his exercise of

the constitutional right to remain silent, that the cross-examination was

permissible as a challenge to credibility, and that Mr. Ward had waived his

right to silence by talking to officers after the arrest. We reject these

arguments.

First, the government argues that the prosecutor questioned Mr. Ward

about his prior inconsistent statements rather than his post-arrest silence,

likening the cross-examination to the questioning in

 Anderson v. Charles, 447 U.S. 404 (1980) (per curiam),

 United States v. May, 52 F.3d 885 (10th Cir. 1995), and

 United States v. Toro-Pelaez, 107 F.3d 819 (10th Cir. 1997).

But these opinions involved questioning about inconsistencies between

statements—not the use of post-arrest silence.

In Anderson v. Charles, for example, the defendant was charged with

first-degree murder. 447 U.S. 404, 404 (1980) (per curiam). At trial, the

defendant admitted that he had stolen the victim’s car. Id. at 404–05. But

the parties disagreed on where the car had been when it was stolen. A law-

enforcement officer testified that the defendant had said after his arrest

that the car was parked on a street. Id. at 405. The defendant testified at

trial that he had taken the car from a parking lot. Id. at 405–06. The

prosecutor cross-examined the defendant about the inconsistency, pointing 7 Appellate Case: 23-7088 Document: 96-1 Date Filed: 05/06/2025 Page: 8

out that he had chosen not to tell law-enforcement officers the true

location of the car. Id. at 405–06. The Supreme Court concluded that this

cross-examination had been permissible, reasoning that the prosecutor had

pointed to the defendant’s prior inconsistent statement about the true

location of the car—not to his post-arrest silence. Id. at 408–09.

Similarly, we concluded in United States v. May that a prosecutor’s

closing argument referred to a prior inconsistent statement rather than

post-arrest silence. 52 F.3d 885, 889–90 (10th Cir. 1995). There the

defendant admittedly had a substantial quantity of cocaine and was charged

with distributing it. Id. at 886–87. He told law-enforcement officers that he

had loaned money to his girlfriend to buy cocaine and took some of the

cocaine as collateral. Id. at 887. At trial, however, the defendant testified

that he had given money to his girlfriend because he was scared for her. Id.

After this testimony, the prosecutor argued in closing that the defendant

had given inconsistent statements; and we concluded that this argument

hadn’t entailed a comment on post-arrest silence. Id. at 890.

We also rejected a similar claim in United States v. Toro-Pelaez, 107

F.3d 819 (10th Cir. 1997). There the defendant drove a vehicle containing

$5 million worth of cocaine in a hidden compartment. Id. at 823. The main

issue was whether the defendant had known about the cocaine. Id. On this

issue, the prosecutor impeached the defendant with lies that he had told

officers after the arrest. Id. at 827. We concluded that the district court

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hadn’t plainly erred because the impeachment involved the defendant’s

prior inconsistent statements rather than his post-arrest silence. Id.

The government compares the facts in these cases to what occurred

here, contending that the prosecutor just referred to an inconsistency

between Mr. Ward’s trial testimony and his account when he was arrested.

But Mr. Ward’s post-arrest silence wasn’t inconsistent with anything that

he had told the officers. 1 To the contrary, the prosecutor relied on what

Mr. Ward hadn’t said after the arrest. The cross-examination was thus

designed “to suggest an inference of guilt from . . . post-arrest silence”

rather than to highlight prior inconsistent statements. United States v.

Canterbury, 985 F.2d 483, 486 (10th Cir. 1993).

Second, the government argues that it didn’t violate Doyle because

 Mr. Ward testified only about what he had told the officers and

 the prosecutor did nothing more than challenge Mr. Ward’s credibility.

1 The government points to one inconsistency between Mr. Ward’s trial testimony and his statements to law-enforcement officers before the trial: After the arrest, he told officers that the victims had shot first. R. vol. 3, at 497. But Mr. Ward admitted at trial that he and Mr. Armenta had fired the first shots. R. vol. 3, at 485–87, 432–33.

Though an inconsistency existed, the prosecutor didn’t challenge the truthfulness of Mr. Ward’s trial testimony about who had shot first. And in the absence of such a challenge, the government doesn’t argue that the post-arrest silence cast doubt on Mr. Ward’s admission that he and Mr. Armenta had shot first. 9 Appellate Case: 23-7088 Document: 96-1 Date Filed: 05/06/2025 Page: 10

But the constitutional prohibition exists because the use of post-arrest

silence is an unfair way to challenge credibility. See Wainwright v.

Greenfield, 474 U.S. 284, 292 (1986) (“The point of the Doyle holding is

that it is fundamentally unfair to promise an arrested person that his

silence will not be used against him and thereafter to breach that promise

by using the silence to impeach his trial testimony.”). In questioning Mr.

Ward based on his partial silence, the government unfairly challenged his

credibility based on his exercise of the right to remain silent.

Finally, the government contends that Mr. Ward didn’t exercise his

right to stay silent. But Mr. Ward did what the Canterbury defendant had

done, telling officers about some aspects and remaining silent about others.

See United States v. Canterbury, 985 F.2d 483, 485 (10th Cir. 1993)

(concluding that “partial silence [did] not preclude [the defendant] from

claiming a violation of his due process rights under Doyle”); accord United

States v. Garcia-Morales, 942 F.3d 474, 476 (9th Cir. 2019) (“[A] suspect

who remains silent in response to certain questions may still claim

protection under Doyle even if his silence falls short of the unambiguous

declaration required to invoke the right to counsel . . . or the right to cut

off questioning . . . .”). So under Canterbury, the prosecutor committed an

obvious violation of due process by impeaching Mr. Ward with his failure

to mention Mr. Armenta’s threats.

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4. Mr. Ward has satisfied the third and fourth elements.

Mr. Ward also argues that the error affected his substantial rights. In

just a single sentence, the government contends that the error didn’t affect

Mr. Ward’s substantial rights because the victims had given “consistent

and damning testimony.” Appellee’s Resp. Br. at 18. We disagree.

The three victims did testify about Mr. Ward’s violent actions. But

Mr. Ward never denied that he had participated in the violent attack; his

defense was that he had acted violently because of threats from

Mr. Armenta. That defense rested on the credibility of Mr. Ward, not the

three victims. And the government attacked Mr. Ward’s credibility by

lasering in on his failure to tell officers about Mr. Armenta’s threats. With

Mr. Ward’s credibility at the heart of his duress defense, the cross-

examination about his post-arrest silence affected his substantial rights.

See United States v. Kee, 129 F.4th 1249, 1253 (10th Cir. 2025)

(concluding that the defendant had established an effect on his substantial

rights because “[t]he government’s repeated reference to [the defendant’s]

post-Miranda silence [had] served only one purpose—to cause jurors to

make a negative inference about [the defendant’s] truthfulness based on the

mere fact that he asserted his constitutional right”); see also United States

v. Canterbury, 985 F.2d 483, 487 (10th Cir. 1993) (“By using [the

defendant’s] post-arrest silence to impeach his testimony, the government

attacked the heart of his defense.”).

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For the fourth element, Mr. Ward argues that he has shown that the

error affected the fairness, integrity, or public reputation of judicial

proceedings. The government doesn’t counter that argument. So we

conclude that Mr. Ward has made the required showing. See United States

v. Egli, 13 F.4th 1139, 1146 (10th Cir. 2021) (concluding that the

government waives review of particular prongs of the plain-error standard

by failing to contest them in the appeal).

* * *

Because Mr. Ward has established plain error, we vacate his

convictions and remand for further proceedings consistent with this

opinion. 2

2 Because we vacate Mr. Ward’s convictions based on a denial of due process, we need not address his other appellate arguments.