Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 22, 2025 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-3122 (D.C. No. 2:19-CR-20055-HLT-1) EDDIE WHITE, JR., (D. Kan.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT * _________________________________
Before HARTZ, EBEL, and ROSSMAN, Circuit Judges. _________________________________
In this direct criminal appeal, Defendant Eddie White, Jr., challenges his
conviction for being a previously convicted felon unlawfully in possession of a
firearm. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
I. BACKGROUND
Viewed in the light most favorable to the jury’s verdict, see United States v.
Chapman, 839 F.3d 1232, 1235 (10th Cir. 2016), the evidence at trial indicated the
following: Mid-morning on May 8, 2018, police responded to reports of gunfire in a
Kansas City, Kansas, residential neighborhood. Mr. White’s mother lived in an
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 2
apartment in that neighborhood and he sometimes stayed with her. Responding
officers drove past two unoccupied vehicles, a silver Mercedes parked on one side of
Brown Avenue and a purple Dodge Charger stopped across the street from the
Mercedes, both with bullet holes. The Mercedes belonged to Mr. White and the
purple Charger had recently been stolen in a carjacking.
The officers noticed a fast-moving white car travelling down Brown Avenue
toward a dead end. They followed that car, which Mr. White’s mother was driving,
but did not activate their lights or siren. One of the officers, Caiharr, testified that, as
they reached the dead end, he saw two men in a field who turned out to be Mr. White
and Frederick Clark. When the two men saw the patrol car, they ran in opposite
directions. As Mr. White ran in front of the officers, he dropped a gun—a fully
loaded Glock nine millimeter pistol with an extended magazine. Officer Caiharr
pursued Mr. White into a nearby backyard and arrested him. Other officers found
and arrested Mr. Clark, as well as a third man, Dahrell Johnson. Neither Mr. Clark
nor Mr. Johnson had a gun, but Mr. Clark had the keys to the stolen purple Charger.
Police found an empty mini-Draco pistol in a nearby open grassy area. Mr. White’s
DNA was found on the triggers and other areas of both the Glock and the
mini-Draco.
After his arrest, officers took Mr. White to the police station where Detective
Miller interviewed him. At the outset of the interview, Detective Miller gave Mr.
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White Miranda 1 warnings, verbally and in writing, informing him that he had the
right to remain silent; anything he said could be used against him in court; he had the
right to an attorney and to have the attorney present during questioning; if he could
not afford an attorney, one would be appointed for him before questioning; and he
could invoke these rights at any time and not answer any questions. After receiving
and acknowledging his Miranda warnings, Mr. White agreed “to say just a little bit.”
(II Supp. R. Gov’t Ex. 146 at 15:23:02.) That interview lasted over forty-five
minutes and was video recorded.
During the interview, Mr. White told the detective that the shooting that day
stemmed from an ongoing dispute between Mr. White and another person, whom Mr.
White declined to identify. According to Mr. White, five months earlier, on New
Year’s Eve, somebody who was with Mr. White’s adversary twice shot Mr. White in
the foot. After that New Year’s Eve shooting, the person with whom Mr. White had
the dispute, and that person’s acquaintances, had continually harassed and threatened
Mr. White and his family. About the May 8 incident, Mr. White speculated, “I guess
this particular time they just shot again. This is what led me here.” (Id. at 15:25:34‒
15:25:51.) Although he indicated that he saw the guy who shot at him on May 8, Mr.
White declined to identify him. Mr. White also declined to identify the person who
had shot him on New Year’s Eve. Mr. White told the detective that, if he identified
any of these men, he would be killed.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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Mr. White also declined to say whether he had a gun on that day, May 8. But
he told the detective,
I got shot two times. Do you think a person that got shot is not going to have some kind of gun whether he is supposed to have one or not? Somebody tried to take my life. I can’t call on the police. What am I supposed to do, just stand there and die?
(Id. at 15:46:34‒15:46:48.) Mr. White further told the detective, “I’m not letting
somebody shoot me again. . . . If I have to go to jail or whatever. I’m not about to let
somebody kill me bro and that’s where I’m at with it.” (Id. at 15:53:36‒15:53:46.)
The detective told Mr. White several times during the interview that, if Mr.
White did have a gun on May 8, there might be an explanation for why he had that
gun—perhaps Mr. White had acted in self-defense—and that now was the time to tell
the detective. Mr. White responded that he was not going to incriminate himself or
anyone else, but “we definitely wasn’t the aggressors.” (Id. at 15:51:44‒15:51:42.)
During the forty-five-minute interview, Mr. White never asked for an attorney
and never indicated that he wanted to stop answering questions. It was the detective,
not Mr. White, who ended the interview.
As a result of the May 8 incident, the United States charged Mr. White with
violating 18 U.S.C. § 922(g)(1) by being a previously convicted felon unlawfully in
possession of a firearm—specifically the Glock nine millimeter pistol that Mr. White
dropped as he ran in front of the patrol car. At trial, the Government presented
undisputed evidence establishing the elements that the jury had to find to convict Mr.
White of that offense. See United States v. Mayfield, 134 F.4th 1101, 1107‒08 (10th
4 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 5
Cir. 2025) (discussing elements of § 922(g)(1) offense), petition for cert. filed, (U.S.
July 17, 2025) (No. 25-5141). Mr. White acknowledged that he possessed the Glock
on May 8, but in his defense, Mr. White asserted that he possessed the firearm under
duress. See United States v. Butler, 485 F.3d 569, 572 & n.1 (10th Cir. 2007)
(addressing elements of affirmative defense known interchangeably as duress,
necessity or justification).
Anticipating Mr. White’s defense, the Government presented evidence in its
case in chief to support its theory of the May 8 shooting—that Mr. White and Mr.
Clark ambushed Mr. Johnson. The Government also played for the jury Detective
Miller’s recorded post-arrest interview with Mr. White, in its entirety and without
objection.
After the Government rested its case, Mr. White, in support of his duress
defense, testified to the following: On May 8, 2018, he was sitting in the front
passenger seat of his Mercedes, which was parked on Brown Avenue, cleaning the
car out. Someone with a gun, probably accompanied by another person, came up to
him from behind and tried to carjack Mr. White’s car. The carjacker ordered Mr.
White out of the car, took everything out of Mr. White’s pockets, and then threw Mr.
White onto the ground. Mr. White never saw the carjacker’s face. While he was
lying on the ground, Mr. White heard shooting. When it stopped, Mr. White ran
toward some nearby trees and bushes, jumped a fence and hid in the brush. While
hiding, he heard more shooting coming from Brown Avenue, as well as screeching
tires and a crash. Someone then jumped over the fence near where Mr. White was
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hiding, dropped the Glock and kept running. Mr. White did not see that person’s
face. Two to three minutes later, someone tossed or dropped the mini-Draco pistol
over the same fence before jumping over the fence himself. As that person reached
to pick up the mini-Draco, he saw Mr. White hiding. The two men wrestled for the
mini-Draco until the other man gained control of the gun and flung it off to the side.
Both men then reached for the Glock that was lying on the ground. Mr. White got to
the Glock first, grabbed it and ran away. As he ran through a field toward Brown
Avenue, Mr. White saw a patrol car. He dropped the Glock so the police would not
think he was the shooter and then continued running in order to distance himself from
the gun so that the officers did not deem him to be a threat to them.
Mr. White did not see anyone else in the open field he crossed while running
toward Brown Avenue. Further, he does not know Mr. Clark and did not see anyone
who looked like him during the incident. Mr. White also explained that when he told
Detective Miller, during the recorded post-arrest interview, that “we wasn’t the
aggressors,” he was just responding to the way the detective framed the hypothetical
question, asking, if you were with someone, were you the aggressor.
In closing argument, the prosecutor argued to jurors, among other things, that
during the post-arrest interview, Detective Miller suggested Mr. White might have
been acting in self-defense and gave him an opportunity to tell the detective what
happened. “And what Eddie White tells him is not what he told you here today.” (III
R. 683.) The prosecutor went through the inconsistencies between what Mr. White
said during his post-arrest interview and what he testified to at trial, and then
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asserted, “what he told you here today, there’s nothing incriminating about that. If it
happened that way, there’s nothing incriminating. He has every incentive in the
world to tell Detective Miller that it happened the way he told you today if it
happened that way.” (Id. at 686.) The prosecutor made a similar argument during
rebuttal closing. The jury convicted White of being a previously convicted felon
unlawfully in possession of a firearm and the district court sentenced him to 120
months in prison.
II. DISCUSSION
Mr. White contends that the prosecutor, at trial, improperly questioned
Detective Miller and Mr. White about Mr. White’s partial silence during the
post-arrest post-Miranda interview regarding whether he possessed a firearm on May
8, and unfairly used that partial silence during closing argument to impeach Mr.
White’s trial testimony. Mr. White further asserts that the prosecutor misstated the
evidence during closing argument. Mr. White acknowledges that, because he did not
raise any of these contentions at trial, we review them on appeal for plain error. See
Fed. R. Crim. P. 52(b); see also United States v. Ward, 135 F.4th 1265, 1268 (10th
Cir. 2025). As we explain next, Mr. White has failed to establish that any plain error
occurred at his trial that warrants relief. 2
2 Mr. White seeks to preserve an additional argument: that 18 U.S.C. § 922(g)(1), the statute under which he was charged and convicted, violates the Second Amendment. He acknowledges, however, that this court has previously rejected that argument in Vincent v. Bondi, 127 F.4th 1263, 1264‒66 (10th Cir. 2025), petition for cert. filed, (U.S. May 12, 2025) (No. 24-1155). 7 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 8
A. The prosecutor’s challenged questions and argument about Mr. White’s post-arrest, post-Miranda partial silence do not warrant relief
Mr. White first contends that the prosecutor deprived him of due process by
unfairly using his post-arrest, post-Miranda partial silence regarding whether he
possessed a firearm on May 8 to challenge the credibility of Mr. White’s trial
testimony.
1. Relevant law
The Fifth Amendment guarantees that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const., amend. V. In order
to protect this privilege against self-incrimination, the Supreme Court, in Miranda,
held that
the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless[,] . . . [p]rior to any questioning, the person . . . [is] warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. . . . [I]f the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.
384 U.S. at 444–45.
In Doyle v. Ohio, the Supreme Court held that the government deprived the
defendant in that case of due process when it used his silence, occurring after police
took the defendant into custody and gave him Miranda warnings, to impeach the
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defendant’s trial testimony. 426 U.S. 610, 611, 619 (1976). “[I]t would be
fundamentally unfair and a deprivation of due process” to advise a suspect at the time
he was arrested that he had the right to remain silent but then “to allow the arrested
person’s silence to be used to impeach an explanation subsequently offered at trial.”
Id. at 618.
On the other hand, the Supreme Court has held that, when a defendant, after
being arrested and given Miranda warnings, makes statements, it is not
fundamentally unfair to offer those statements to impeach the defendant’s
inconsistent trial testimony. See Anderson v. Charles, 447 U.S. 404, 408‒09 (1980)
(per curiam). In Anderson, police arrested the defendant, Charles, while he was
driving a murder victim’s stolen car. Id. at 404. After his arrest and after receiving
Miranda warnings, Charles told police that he had stolen the car at a particular
intersection two miles from the bus station. Id. at 405. At his trial for murder,
however, Charles testified instead that he had stolen the car from a parking lot right
next to the bus station. Id. at 404‒05. The Supreme Court held that it was not
fundamentally unfair for the prosecutor to impeach Charles at trial by asking him
why he had not told police that story when he was arrested. Id. at 405‒09.
Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all. . . .
....
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. . . The questions [at Charles’ trial] were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement.
. . . Each of two inconsistent descriptions of events may be said to involve “silence” insofar as [one] omits facts included in the other version. But Doyle does not require any such formalistic understanding of “silence.”
Id. at 408‒09.
Applying Doyle and Anderson, the Tenth Circuit, in a more “complicated”
situation, United States v. Canterbury, 985 F.2d 483, 486 (10th Cir. 1993), has
recognized that a suspect in custody post-Miranda who remains partially silent—that
is, who answers some questions while remaining silent as to other topics—can assert
that a Doyle error occurred at trial when the prosecutor asked him about matters
about which he chose to remain silent during the post-arrest interview. See United
States v. Harrold, 796 F.2d 1275, 1279 n.3 (10th Cir. 1986); see also, e.g., Ward, 135
F.4th at 1266‒70 (citing Canterbury, 985 F.2d at 484‒86); United States v. May, 52
F.3d 885, 889‒90 (10th Cir. 1995). 3
In Canterbury and Ward, for example, the defendants told the same inculpatory
story both in a post-arrest, post-Miranda interview and at trial. But at trial, the
3 In some of this circuit’s “partial silence” cases, an arrested and Mirandized suspect answered some questions but expressly declined to answer other questions officers posed to him. See Harrold, 796 F.2d at 1278 & n.2. In other “partial silence” cases, like Canterbury and Ward, the arrested and Mirandized suspect answered some questions but never mentioned or addressed an affirmative defense that the suspect later asserted for the first time at trial. This court held in those cases that the defendant can assert a Doyle violation under those circumstances. See Ward, 135 F.4th at 1266‒70; Canterbury, 985 F.2d at 484‒86. 10 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 11
defendants also, for the first time, asserted an affirmative defense. In those cases,
this court held it was fundamentally unfair for the prosecution to use the defendants’
post-arrest, post-Miranda silence as to their affirmative defenses to impeach their
trial testimony in support of those defenses. See Ward, 135 F.4th at 1266‒70;
Canterbury, 985 F.2d at 484, 486.
On the other hand, where a defendant, after his arrest and after receiving
Miranda warnings, does not invoke his right to remain silent but instead tells police a
story that differs from his later trial testimony, we have held that the prosecutor does
not violate Doyle if he points out for the jury inconsistencies between the defendant’s
two stories. See May, 52 F.3d at 889 (noting that the “record indicates that May
never formally invoked his right to remain silent,” but was instead “forthcoming with
information and simply chose to tell various versions of his ‘story’ when speaking to
the authorities”); see also id. at 889‒90 (holding, alternatively, that “even if it can be
said that May partially invoked his right to remain silent, the prosecutor’s comments
do not constitute a violation of May’s due process rights” because they focused on
the inconsistencies in May’s stories rather than on his partial silence); Twyman v.
Oklahoma, 560 F.2d 422, 423‒24 (10th Cir. 1977) (per curiam) (holding, in habeas
case, that there was no Doyle error where Twyman, after his arrest and after
receiving Miranda warnings, gave “a detailed accounting of his recent activities,
including his association with the murder victim,” and then “chose to testify at trial
where he again gave a purportedly full and detailed accounting of his activities,”
including for the first time telling about his “procurement of what apparently was the
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murder weapon,” thus “open[ing] himself up to full cross-examination, the same as
any other witness”).
Thus, our prior precedent indicates that, when a defendant, after being arrested
and receiving Miranda warnings, remains partially silent, the prosecutor may
comment on inconsistencies between the defendant’s post-Miranda statements and
his trial testimony, but the prosecutor may not use the defendant’s partial silence to
impeach the defendant’s trial testimony. See May, 52 F.3d at 889‒90. To determine
whether a Doyle error involving a defendant’s partial post-Miranda silence has
occurred, we consider the prosecutor’s challenged questions or comments at trial in
context to decide “whether the cross-examination was designed to impeach the
defendant’s trial testimony by calling attention to prior inconsistent statements or,
instead, was designed to suggest an inference of guilt from the defendant’s
post-arrest silence.” May, 52 F.3d at 890 (citing Canterbury, 985 F.2d at 486). The
test, then, “for determining if there has been an impermissible”
comment on a defendant’s right to remain silent at the time of his arrest is “whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment” on the defendant’s right to remain silent.
Id. (quoting United States v. Mora, 845 F.2d 233, 235 (10th Cir. 1988), in turn
quoting United States v. Morales-Quinones, 812 F.2d 604, 613 (10th Cir. 1987)).
With these general principles in mind, we turn to the specific facts of this case.
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2. Mr. White failed to establish plain Doyle error that affected his substantial rights
Because Mr. White did not assert any Doyle error at trial, we review for plain
error the Doyle violations he now asserts for the first time on appeal. See Fed. R.
Crim. P. 52(b); see also Ward, 135 F.4th at 1268. To obtain relief, therefore, Mr.
White “must ‘demonstrate: (1) an error, (2) that is plain, which means clear or
obvious under current law, and (3) that affects substantial rights.’” United States v.
Moore, 96 F.4th 1290, 1299 (10th Cir. 2024) (quoting United States v.
Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)). An error affects substantial
rights if there is a reasonable probability that, but for the error, the outcome of the
trial could have been different. See Mayfield, 134 F. 4th at 1107. If the defendant
“satisfies these criteria, this Court may exercise discretion to correct the error if (4) it
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Moore, 96 F.4th at 1299–1300 (quoting Rosales-Miranda, 755 F.3d at 1258). We
apply plain-error review “less rigidly when reviewing a potential constitutional
error.” United States v. Miller, 891 F.3d 1220, 1231 (10th Cir. 2018) (quoting
United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001)).
a. Mr. White has not established plain Doyle error
We will assume, without deciding, that there was Doyle error in this case. But
we cannot say that that error was plain; that is, that it was “clear or obvious under
current law.” Moore, 96 F.4th at 1299 (quoting Rosales-Miranda, 755 F.3d at 1258).
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This case arguably falls in the middle of our prior cases, some finding Doyle
error, some not. This case is not exactly like Ward and Canterbury, where we found
Doyle error. In those cases, the defendants gave the same inculpatory story, both
after their arrest and at trial, but for the first time asserted an affirmative defense at
trial. See Ward, 135 F.4th at 1266‒70; Canterbury, 985 F.2d at 484‒86. Mr. White
also asserted an affirmative duress defense for the first time at trial. But, different
than the defendants in Ward and Canterbury, Mr. White also gave inconsistent stories
during his post-arrest interview and at trial. In his post-arrest interview, he stated
that on May 8 he was shot by a member of a group of people who had previously shot
him and with whom he had had a running months’ long dispute. At trial, on the other
hand, he testified that the May 8 shooting was the result of an attempted carjacking
by unknown assailants. Generally, a prosecutor can point out such inconsistent
statements to jurors.
This case, however, is also not exactly like our prior cases finding no Doyle
error where the defendants, in a post-arrest, post-Miranda interview did not invoke
their right to remain silent but instead simply told police a story that differed from
their later trial testimony. See May, 52 F.3d at 889‒90; Twyman, 560 F.2d at 424.
Here, Mr. White, after being told he had a right to remain silent, expressly told the
detective during the post-arrest interview that he was not going to discuss whether he
had a gun on May 8. At trial, for the first time, he acknowledged having a gun and
asserted an affirmative defense for why he possessed that weapon.
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This case, then, arguably falls in the middle of our prior cases, some finding
Doyle error, some not. For that reason, it presents a close call. In light of that, Mr.
White has not established plain error; that is, error was “clear or obvious under
current law.” Moore, 96 F.4th at 1299 (quoting Rosales-Miranda, 755 F.3d at 1258).
In that respect, this case is similar to United States v. Pemberton, No. 99-2233,
2000 WL 912741 (10th Cir. July 7, 2000) (unpublished). 4 Pemberton shot and killed
the victim after Pemberton and the victim had been drinking heavily at Pemberton’s
home and the victim became belligerent and physically aggressive towards
Pemberton. Id. at *1. During post-arrest, post-Miranda questioning, Pemberton
indicated that the victim had pushed Pemberton around, would not leave Pemberton’s
home, and physically attacked Pemberton, causing Pemberton to have to defend
himself. Id. at *4‒5. “After completing [a] brief [post-arrest] written statement,
Pemberton indicated that he did not want to continue the interview” and the officer
“ceased his questioning.” Id. at *2. At trial, Pemberton, for the first time, asserted
that the victim had a knife with which he had threatened to kill Pemberton and
Pemberton’s school-age son who was asleep in the house, and that when Pemberton
shot the victim, Pemberton thought the victim was coming at him with the knife. Id.
at *1‒2. On appeal, Pemberton asserted Doyle error based on the prosecutor’s
questioning and argument impeaching Pemberton’s trial testimony with the fact that
Pemberton had not mentioned that the victim had a knife during his post-arrest,
4 Although not binding precedent, we find Pemberton’s reasoning persuasive. 15 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 16
post-Miranda interrogation. Id. at *4. Reviewing for plain error, id., this court held
that any Doyle error that occurred in that case was not plain:
The plain error standard of review requires that the mistake be an obvious one (i.e., “plain”). In the present case, however, it is not obvious that the defendant’s failure to mention previously such an important fact is actually consistent with his subsequent testimony. Although incomplete, [Pemberton]’s post-arrest statements do contain some degree of detail suggesting that he would have mentioned the knife had it actually been present. . . . It was, consequently, at least a matter of some ambiguity whether [Pemberton]’s trial testimony was inconsistent with these prior statements and therefore impeachable. Thus, any error committed by the prosecution in referring to [Pemberton]’s failure to mention the knife in his post-arrest statements was not plain.
Id. at *5.
Pemberton’s reasoning applies here as well. Whether Mr. White remained
partially silent during his post-arrest, post-Miranda interview about if, and how, he
possessed the Glock on May 8, is a close question. He expressly told the detective he
would not address whether he had a gun on May 8. But he hinted that he did have
one. That close question is tied up in Mr. White’s clearly inconsistent statements
about the circumstances underlying the shooting. Because whether there was Doyle
error is such a close question, any such error cannot be deemed plain.
Our conclusion is further bolstered by the fact that almost all of the
prosecutor’s questions and comments that Mr. White now challenges on appeal
addressed the inconsistencies between Mr. White’s stories rather than his partial
silence on the limited question of whether he possessed a gun. There is really only a
single challenged question that can be characterized as comment on Mr. White’s
16 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 17
partial silence about whether he possessed the Glock on May 8. As the prosecution
played the recorded post-arrest interrogation, the prosecutor asked Detective White:
Q. . . . You just said to him ‒ ‒ you’re about to explain a cycle of violence to him; correct?
A. Correct.
Q. And you say to him, “You have to carry a gun possibly”?
Q. Did he ever say, “I didn’t carry a gun”?
A. Never said it.
(III R. 539.) All of the other questions and argument that Mr. White challenges on
appeal involved instead only whether Detective Miller gave Mr. White an
opportunity to tell his carjacking story during the post-arrest, post-Miranda interview.
For all of these reasons, we conclude that, if there was Doyle error, it was not
plain; that is, “clear or obvious under current law.” Moore, 96 F.4th at 1299 (quoting
Rosales-Miranda, 755 F.3d at 1258).
b. Even if there was plain Doyle error, it did not affect Mr. White’s substantial rights
Even if we could say that there was plain Doyle error, Mr. White has not
shown that the error affected his substantial rights; that is, Mr. White has not
established that, but for the Doyle error, the jury would have acquitted him of
unlawfully possessing the Glock. See Mayfield, 134 F.4th at 1107. To the extent
such plain Doyle error was based on the prosecutor pointing out, through questioning
and argument, that Mr. White had an opportunity to raise his carjacking defense
17 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 18
during the post-arrest, post-Miranda interview but failed to do so, that point was
already made abundantly clear to jurors when the Government played the recorded
interview for the jury in its entirety, without objection. During that recorded
interview, Detective Miller, at least three different times, told Mr. White that, if he
had a defense for his possessing a firearm on May 8, Mr. White should tell the
detective at that time. Notwithstanding the detective’s prompting, Mr. White did not
tell the detective about the attempted carjacking. Because the jury viewed the
unobjected-to recording of that interview, we cannot say that any further questions or
argument from the prosecutor about the opportunity Mr. White had to tell the
detective about the attempted carjacking on the day he was arrest would have
changed the outcome of the trial.
Lastly, we cannot say that without the single comment that we flagged earlier
as possibly Doyle error—when the prosecutor asked Detective Miller if Mr. White
ever told him he did not possess a firearm on May 8, and the detective responded that
Mr. White never told the detective that he had not possessed the Glock on May 8—
the jury would have acquitted Mr. White. Mr. White, therefore, has not established
that, but for any Doyle error that may have occurred at his trial, there is a reasonable
probability that the jury would have been persuaded by his affirmative defense and
acquitted him of unlawfully possessing a firearm.
18 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 19
3. Conclusion as to Doyle arguments
For all of these reasons, Mr. White has not raised plain Doyle error warranting
relief.
B. Any misstatement of the evidence during closing argument does not warrant relief
Mr. White next asserts that the prosecutor misstated the evidence during his
closing argument. 5 Because Mr. White did not object to this argument at trial, we
again review for plain error. See Fed. R. Crim. P. 52(b); see also United States v.
Sweet, 107 F.4th 944, 961 (10th Cir. 2024), cert. denied, 145 S. Ct. 1221 (2025). In
reviewing prosecutorial-misconduct claims for plain error, the Tenth Circuit has
condensed the usual four-step plain-error inquiry into two, asking whether “(1) the
prosecutor’s statement is plainly improper” and, if so, whether “(2) the defendant
demonstrates that the improper statement affected his or her substantial rights.”
United States v. Vann, 776 F.3d 746, 759 (10th Cir. 2015) (quoting United States v.
Fleming, 667 F.3d 1098, 1103 (10th Cir. 2011), and citing United States v. Ivy, 83
F.3d 1266, 1288 (10th Cir. 1996)). In conducting this two-step inquiry, we view the
challenged “remarks in the context of the entire trial.” Id. at 760 (quoting United
States v. Lopez-Medina, 596 F.3d 716, 738 (10th Cir. 2010)). “[R]eversal in the
absence of contemporaneous objection is a rare exception rather than the rule.” Id. at
5 As part of this argument, Mr. White reasserts that the prosecutor improperly commented during closing argument about his post-arrest, post-Miranda partial silence as to whether he possessed a firearm on May 8. We reject that argument for the reasons stated in the preceding section of his opinion addressing the purported Doyle errors. 19 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 20
759 (quoting United States v. Hill, 749 F.3d 1250, 1267 (10th Cir. 2014)). And
when, as in this case, “‘the jury was properly instructed that statements and
arguments of counsel are not evidence and that defendant could only be convicted on
the basis of evidence submitted at trial,’ . . . we have consistently refused to find
plain error based on misstatements by the prosecutor.” Id. at 760 (quoting United
States v. Rogers, 556 F.3d 1130, 1140‒41 (10th Cir. 2009)) (alterations omitted).
Mr. White asserts that the prosecutor plainly erred during his closing argument
by misstating responding Officer Caiharr’s testimony about seeing Mr. White and
Mr. Clark in the open field soon after the reported gunfire. Specifically, Officer
Caiharr testified that the responding officers followed a white car, driven by Mr.
White’s mother, toward a dead end on Brown Avenue. As the officers reached the
dead end, Officer Caiharr saw two black males (later identified as Mr. White and Mr.
Clark) in a field. The prosecutor asked the officer if the two men “appear[ed] to be
together?” (III R. 136.) The officer responded,
I don’t know if they appeared to be together or not. They were in the . . . same field and . . . when they saw my vehicle and I saw them, I think it all happened at the same time and they each ran [in] different directions. I don’t know if they were ‒ ‒ what they were doing.
(Id.)
During closing argument, the prosecutor asserted:
And what did Officer Caiharr tell you? I followed the [white] Cobalt [car] down. Well, Eddie White sees his mother, is going to start walking out and then, lo and behold, he and Frederick Clark see a patrol vehicle. And they’re together, not what Eddie White told you. He doesn’t want them to be together - - that he doesn’t want to be with Frederick Clark, but that’s what Officer Caiharr saw.
20 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 21
(Id. at 681.) In his rebuttal closing, the prosecutor again referred to Mr. White and
Mr. Clark in the clearing:
These individuals, I think the evidence would suggest, are waiting for Eddie White’s mother. [Officer Caiharr] sees two individuals there. He sees who we know is Frederick Clark and who we know is Eddie White and they’re together.
When I asked Mr. White, “Was there any individual around you?” “No. None.” [Defense counsel’s] theory is Frederick Clark is foe to Mr. White. He’s . . . one of the people chasing Mr. White. No, he’s not. He’s friend. He’s there with Mr. White.
. . . And Mr. White was adamant, I’m not with ‒ ‒ there’s nobody there. He has to say that. That’s a lie unless you believe Officer Caiharr didn’t see what he told you he saw.
(Id. at 708.)
Even if we could say that the prosecutor plainly erred by misstating Officer
Caiharr’s testimony, Mr. White has not shown that there is a reasonable probability
that, absent this brief misstatement, the result of the trial would have changed. See
United States v. Burgess, 99 F.4th 1175, 1190 (10th Cir. 2024).
C. There is no cumulative error warranting relief
Lastly, Mr. White argues that, even if there was error that did not, by itself
require reversing his conviction, the errors were prejudicial when considered
cumulatively. We reject that argument. “For cumulative error, . . . we include only
preserved errors and unpreserved errors that are plain.” United States v. Lopez, 131
F.4th 1114, 1136 (10th Cir. 2025). Mr. White asserted only unpreserved errors on
appeal and the only two that might possibly be plain error were the prosecutor asking
21 Appellate Case: 23-3122 Document: 88-1 Date Filed: 09/22/2025 Page: 22
Detective Miller if Mr. White ever told the detective, during the post-arrest,
post-Miranda interview, that he did not have a gun, and the prosecutor’s misstating
Officer Caiharr’s testimony during closing argument. Mr. White “has failed to carry
his burden of establishing that these [possible] errors cumulatively affected the jury’s
decision in his case, as required for relief.” United States v. Little, 119 F.4th 750,
786 (10th Cir. 2024), petition for cert. filed, (U.S. July 2, 2025) (No. 25-5015).
III. CONCLUSION
We AFFIRM Mr. White’s conviction.
Entered for the Court
David M. Ebel Circuit Judge