                      FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                    Nos. 17-50323
           Plaintiff-Appellee,                     17-50324

                 v.                            D.C. Nos.
                                         3:16-cr-01611-CAB-1
 ABRAHAN GARCIA-MORALES,                 3:14-cr-02586-CAB-1
 AKA Abraham Garcia-
 Morales,                                        OPINION
          Defendant-Appellant.

          Appeal from the United States District Court
             for the Southern District of California
        Cathy Ann Bencivengo, District Judge, Presiding

           Argued and Submitted December 7, 2018
                    Pasadena, California

                      Filed October 31, 2019

 Before: Johnnie B. Rawlinson and Carlos T. Bea, Circuit
     Judges, and Benjamin H. Settle, * District Judge.

                      Opinion by Judge Settle;
                       Dissent by Judge Bea

    *
       The Honorable Benjamin H. Settle, United States District Judge
for the Western District of Washington, sitting by designation.
2            UNITED STATES V. GARCIA-MORALES

                          SUMMARY **


                          Criminal Law

    The panel affirmed a conviction for attempted transport
of aliens in a case in which the defendant alleged that the
prosecution committed misconduct at trial by introducing
evidence of, and commenting on, the defendant’s post-arrest
silence in violation of due process under Doyle v. Ohio, 426
U.S. 610 (1976).

    Upon review of the record, the panel concluded that the
defendant was not silent in response to a border patrol
agent’s questioning on the topic of his co-conspirators – and
that, at most, the exchange demonstrated that the defendant
did not want to discuss his co-conspirators on video tape but
was willing to continue talking about the subject later. The
panel wrote that the prosecution’s characterization of the
defendant as being evasive about other people involved in
alien smuggling was supported by, and tied to, evidence in
the record. The panel concluded that the prosecution
therefore did not err, or commit misconduct, by
characterizing the defendant as being evasive about the other
people involved in alien smuggling, but properly relied on
admissible evidence to rebut the theory that the defendant
had always intended to turn aliens he picked up over to
border patrol.

    Dissenting, Judge Bea wrote that it cannot be that the
defendant’s refusal to name his co-conspirators was not

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
             UNITED STATES V. GARCIA-MORALES                           3

silence, and that this determination allowed the prosecution
at trial to characterize his non-silence as silence for purposes
of proving his guilt. Judge Bea wrote that the prosecution’s
reference to the defendant’s silence as evidence of his guilt
in this context was a Doyle violation, and plain error that
warrants reversal and remand for further proceedings.


                             COUNSEL

Sarah R. Weinman (argued), Federal Defenders of San
Diego Inc., San Diego, California, for Defendant-Appellant.

Daniel Earl Zipp (argued) and Ajay Krishnamurthy,
Assistant United States Attorneys; Helen H. Hong, Chief,
Appellate Section, Criminal Division; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.


                             OPINION

SETTLE, District Judge:

    Defendant Abrahan Garcia-Morales (“Garcia”) appeals
his conviction for attempted transport of aliens in violation
of 8 U.S.C. § 1324(a)(1)(A)(ii). Garcia alleges that the
prosecution committed misconduct by introducing evidence
of, and commenting on, his post-arrest silence at trial. 1
Because Garcia did not object to the prosecutor’s statements

    1
      Garcia also appeals the district court’s finding that border patrol
agents had reasonable suspicion to detain his vehicle. In a separate
memorandum disposition filed simultaneously with this opinion, we
affirm the conviction on that basis as well.
4          UNITED STATES V. GARCIA-MORALES

at trial, this Court reviews his prosecutorial misconduct
claim for plain error. United States v. Sanchez, 176 F.3d
1214, 1218 (9th Cir. 1999). We may reverse under this
standard if: “(1) there was error; (2) it was plain; (3) it
affected the defendant’s substantial rights; and (4) ‘viewed
in the context of the entire trial, the impropriety seriously
affected the fairness, integrity, or public reputation of
judicial proceedings.”’ United States v. Alcantara-Castillo,
788 F.3d 1186, 1191 (9th Cir. 2015) (quoting United States
v. Combs, 379 F.3d 564, 568 (9th Cir. 2004)). The defendant
bears the burden to establish plain error. Combs, 379 F.3d
at 568 (quoting United States v. Geston, 299 F.3d 1130,
1134–35 (9th Cir. 2002)). We affirm.

    Shortly after Garcia left Calzada de la Fuente, a street
abutting the Otay Mountain Wilderness Area just north of
the U.S.-Mexican border, border patrol agents arrested him
on suspicion of alien smuggling. Three aliens thought to be
waiting for transportation from the area had been
apprehended by border patrol agents about thirty minutes
before Garcia arrived. When he was arrested, Garcia told
agents he would have turned any aliens he picked up over to
border patrol. This statement formed the basis for his theory
of defense at trial: that he lacked the requisite mens rea to
transport aliens.

    The prosecution introduced video clips of Garcia’s
interrogation at trial. Although he received a Miranda
warning and waived his right to remain silent in response to
that warning, Garcia alleges that he later selectively invoked
the right to silence on the topic of his co-conspirators.

    Video of the interrogation shows Garcia admitting, inter
alia, to a past attempt to transport aliens and to having been
offered a job transporting aliens by a smuggler that morning.
However, he maintained that he had driven to Calzada de la
           UNITED STATES V. GARCIA-MORALES                   5

Fuente on the day of his arrest simply to scope out the area,
in contrast to border patrol agents’ belief that he had been
sent a dispatch asking him to pick up the three aliens by a
smuggling contact.

    One of many video clips of the interrogation introduced
by the prosecution during the testimony of Border Patrol
Agent Kahl showed Agent Kahl asking Garcia to name his
smuggling contacts. In response, Garcia stated that he was
not “feeling cool with that camera.” Agent Kahl asked
Garcia to “give him a name,” with Garcia responding, “I
don’t . . .” while trailing off and shaking his head “no” once.
Before Agent Kahl moved on to another topic, he told
Garcia: “alright well, well later on I’ll turn off the camera
and you can tell me.” Garcia nodded his head “yes” twice in
response. The exchange lasted approximately forty-five
seconds. Garcia continued answering questions for the
remainder of the interrogation.

    During closing argument, the prosecution summarized
the evidence against Garcia, focusing primarily on
contradictions between Garcia’s actions and the statements
he made at arrest and during post-arrest interrogation. To
demonstrate one such contradiction, the prosecution argued
that Garcia’s “evasiveness” about the other people involved
showed that he was not going to cooperate with border
patrol, as he had stated at arrest. Because Garcia argues that
he selectively invoked the right to silence on the topic of his
co-conspirators, he contends that the prosecution’s eliciting
of testimony and argument about this topic was improper
and asks us to remand for a new trial.

    Because the Fifth Amendment’s self-incrimination
clause carries an implicit guarantee that silence will carry no
penalty, a prosecutor violates due process by eliciting
testimony about a suspect’s silence. Doyle v. Ohio, 426 U.S.
6          UNITED STATES V. GARCIA-MORALES

610, 617–19 (1976). This is because a suspect’s “silence in
the wake of” Miranda warnings “may be nothing more than
the arrestee’s exercise of” his or her Miranda rights. Id. at
617. Silence does not mean only muteness; it includes the
statement of a desire to remain silent, as well as of a desire
to remain silent until an attorney has been consulted.
Wainwright v. Greenfield, 474 U.S. 284, 294 n.13 (1986).
However, when a suspect invokes his Fifth Amendment
right to cut off police questioning on a specific topic, he must
do so “unambiguously.” Berghuis v. Thompkins, 560 U.S.
370, 381–82 (2010) (citing Davis v. United States, 512 U.S.
452, 459 (1994)). Even so, 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 under Davis or the right to cut off questioning under
Thompkins. Hurd v. Terhune, 619 F.3d 1080, 1087 (9th Cir.
2010).

    Upon review of the record, we conclude that Garcia was
not silent in response to Agent Kahl’s questioning on the
topic of his co-conspirators. This conclusion is driven by the
fact that the exchange between Agent Kahl and Garcia began
with Garcia voicing discomfort with video recording and
concluded with Garcia agreeing to speak about his co-
conspirators. At most, the exchange demonstrated that
Garcia did not want to discuss his co-conspirators on video
tape but was willing to continue talking about the subject
later. On the fact-specific record before us, that brief
exchange does not amount to the invocation of silence under
either standard articulated above.

    Moreover, because we have determined that Garcia did
not selectively invoke his right to silence, we also conclude
that it was not error for the prosecution to introduce evidence
           UNITED STATES V. GARCIA-MORALES                 7

of, and comment on, that part of the interrogation including
argument characterizing Garcia as being evasive about other
people involved in smuggling. While we acknowledge that
characterizing a suspect as evasive is likely to invade the
realm of improper demeanor testimony in some cases, our
determination that Garcia was not silent dictates the
conclusion that the characterization was proper in the
context of this case. Additionally, the characterization was
supported by the evidence in the record. For example, the
prosecution elicited testimony at trial showing that Garcia
had deleted certain phone records prior to his arrest.
Referencing this fact and Garcia’s reluctance to discuss his
co-conspirators, the prosecution discussed Garcia’s
evasiveness as follows:

           The phone evidence we just talked about
       and the post-arrest statement you just saw
       where he’s evasive about other people who
       are involved. This is not someone who is
       trying to cooperate, oh, I was trying to help
       you guys. I was going to call them. I wasn’t
       going to transport them. I was going to pick
       them up and then call border patrol and say
       I’ve got people. Then why are you being so
       evasive? If you’re trying to help, why are you
       being evasive, and why did you delete all the
       phone calls that would be able to help?
       Right?

Further, Agent Kahl testified that Garcia did not provide any
actual information about his co-conspirators after the
recording stopped, although Garcia did try to engage in
negotiations to avoid going to jail. The prosecution referred
to Agent Kahl’s testimony during closing argument as
follows:
8          UNITED STATES V. GARCIA-MORALES

           Why does he want the recording turned
       off? Well, was it because he was going to
       provide fantastic information if they just
       turned the thing off? Well, you heard the
       testimony. Agent Kahl said, if you want to,
       we will turn it off, and you can tell me. In
       fact, he had an opportunity later. He wanted
       to make a deal. He didn’t want to be on
       record being a snitch, and he wanted to make
       a deal. That’s the reason why. It wasn’t
       because he had a plan the entire time to turn
       these people over.

Because the prosecution tied its arguments characterizing
Garcia as evasive to the evidence and given our holding that
Garcia was not silent, the prosecution did not commit
misconduct by characterizing him as being evasive about the
other people involved in alien smuggling. Rather, the
prosecution properly relied on admissible evidence to rebut
the theory that Garcia had always intended to turn aliens he
picked up over to border patrol.

    The outcome of this appeal is controlled by our
determination on the silence issue because, absent a
conclusion that Garcia was silent, he cannot demonstrate
error. Appellate courts may consider reversal if a defendant
meets the first three elements of the plain error standard.
However, even then, the court should not exercise its
discretion to reverse unless the error also “seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.” Puckett v. United States, 556 U.S. 129, 135
(2009) (quoting United States v. Olano, 507 U.S. 725, 736
(1993)). Here, having determined that Garcia was not silent
on the topic of his co-conspirators, we must similarly
conclude that he has failed to establish the existence of error
           UNITED STATES V. GARCIA-MORALES                  9

related to the prosecution’s introduction of evidence on that
topic. Without a showing of error, Garcia fails to meet the
requirements for reversal of his conviction because he must
also demonstrate that any alleged errors were plain,
impacted his substantial rights, and so seriously affected the
fairness and integrity of his trial that reversal is required.
Puckett, 556 U.S. at 135. This is a showing Garcia has not
made. Therefore, we affirm.

   AFFIRMED.



BEA, Circuit Judge, dissenting:

    As the majority recognizes, the Fifth Amendment’s self-
incrimination clause carries an implicit guarantee that a
suspect’s silence during a custodial interrogation will carry
no penalty. Doyle v. Ohio, 426 U.S. 610, 617 (1976). It is
therefore a due process violation for a prosecutor to elicit
testimony or comment about such silence at trial. Id. Put
another way:

       “When a person under arrest is informed, as
       Miranda requires, that he may remain silent,
       that anything he says may be used against
       him, and that he may have an attorney if he
       wishes . . . it does not comport with due
       process to permit the prosecution during the
       trial to call attention to his silence at the time
       of arrest and to insist that because he did not
       speak about the facts of the case at that time,
       as he was told he need not do, an unfavorable
       inference might be drawn . . . .”
10          UNITED STATES V. GARCIA-MORALES

Id. at 619. Because that is exactly what the prosecution did
in this case, I respectfully dissent.

      At Garcia’s trial, the prosecution played a video clip of
Garcia’s post-arrest interrogation. In the video, Border
Patrol Agent Kahl asked Garcia to identify his alien
smuggling co-conspirators. Although Garcia had already
answered a number of questions up to this point in the video-
recorded interrogation, he refused to discuss his co-
conspirators, stating “I ain’t feeling cool with that camera.”
Agent Kahl pressed harder, asking “why don’t you just give
me a name?” Garcia shook his head nervously, sighed
heavily, and started to say “I don’t . . . .” Agent Kahl
interrupted Garcia to remind him that if he did not name his
co-conspirators, he alone would take the fall for the crime of
alien smuggling. Garcia shook his head timidly, bit his nails,
and once again stated: “I don’t feel cool with the camera
. . . .” Agent Kahl again cut him off, this time stating:
“Okay, if you want, alright, well, later on we’ll turn off the
camera and you can tell me.” Garcia sheepishly nodded his
head in agreement. Agent Kahl then moved on to another
topic, and Garcia continued answering questions on camera.
Despite suggesting that he might talk about his co-
conspirators off camera, Garcia later refused to name his co-
conspirators during subsequent off-camera discussions with
Border Patrol agents. At trial, the prosecution elicited direct
testimony from Agent Kahl in its case-in-chief about
Garcia’s refusal to identify his co-conspirators. Later, the
prosecution argued in its closing statement that Garcia must
be guilty because he was “evasive about other people who
are involved,” asking “Why does he want the recording
turned off? . . . It wasn’t because he had a plan the entire time
to turn these people over.” This is exactly the type of penalty
for exercising one’s Fifth Amendment rights that Doyle
prohibits. 426 U.S. at 617–18.
              UNITED STATES V. GARCIA-MORALES                          11

    The majority states that “Garcia was not silent in
response to Agent Kahl’s questioning on the topic of his co-
conspirators,” and that therefore no Doyle error occurred.
Maj. Op. at 6. The majority holds that a defendant’s repeated
refusal to answer a specific question during an interrogation
does not count as “silence” under Doyle if the refusal is
accompanied by a suggestion that the defendant might be
willing to answer the question at another time, or under
different circumstances, even if he never follows through.
The majority cites no authority for this novel holding.
Indeed, it is well-established in this Circuit that a suspect
may “refuse to be interviewed in a particular manner even if
he has already waived that right with respect to the subject
matter of the interrogation.” Hurd v. Terhune, 619 F.3d
1080, 1088 (9th Cir. 2010). 1

   It makes no difference that Garcia intimated that he
might be willing to answer questions about his co-
conspirators at another time (which ultimately never
happened), because such an “explanatory refusal” to answer

    1
       In Hurd, the Ninth Circuit held that it was error to allow the
prosecution to introduce at the defendant’s state-court murder trial his
steadfast refusal to answer interrogation questions in a particular manner.
Id. at 1088–89. The defendant in Hurd argued that he shot his wife by
accident, and at trial the prosecution played a tape of the defendant’s
interrogation, wherein he refused repeatedly to reenact physically how
the alleged accident occurred. Id. at 1082. He was subsequently
convicted of murder. Id. The California Court of Appeal affirmed his
conviction, holding that the prosecution’s use at trial of his refusal to
reenact the shooting was proper under Doyle. People v. Hurd, 62 Cal.
App. 4th 1084, 1090 (1998). On habeas review, the Ninth Circuit held
that “[t]he California Court of Appeal’s . . . Doyle analysis [was]
incorrect,” because “[a] suspect may remain selectively silent by
answering some questions and then refusing to answer others without
taking the risk that his silence may be used against him at trial.”
618 F.3d at 1087.
12            UNITED STATES V. GARCIA-MORALES

is treated the same as silence for Fifth Amendment purposes.
See U.S. v. Gomez, 725 F.3d 1121, 1127 (9th Cir. 2013)
(“[W]hen the prosecution attempts to use a defendant’s
‘explanatory refusal’ in its case-in-chief, as affirmative
evidence of guilt . . . the Fifth Amendment bars the
introduction of the explanation just as it bars the introduction
of the silence.”). Disagreeing with the majority’s conclusion
that “Garcia was not silent,” Maj. Op. at 6, the prosecution
characterized Garcia’s explanatory refusal as silence—
arguing that it showed his evasiveness on the issue of his co-
conspirators, which implied his guilt. It cannot be that
Garcia’s refusal to name his co-conspirators was not silence,
and that this determination allowed the prosecution at trial to
characterize his non-silence as silence for purposes of
proving his guilt (that would amount to prosecutorial
misconduct by misstating the evidence). 2 See Hurd,
619 F.3d at 1089 (“[N]either the Constitution nor Miranda
require a suspect to invoke his right to silence in a particular
way. They simply mandate that once a suspect has invoked
that right, he cannot be punished for it.”). The prosecution’s
reference to Garcia’s silence as evidence of his guilt in this
context was a Doyle violation, plain and simple.

    Because Garcia did not object to the use of his silence by
the prosecution at trial, the plain error standard applies, and
we may reverse Garcia’s conviction only if: (1) there was
error; (2) it was plain; (3) it affected the defendant’s

     2
      I note also that it does not matter that Garcia’s explanatory refusal
was not so unambiguous as to require Agent Kahl to cut off questioning
on the subject of Garcia’s co-conspirators pursuant to Berghuis v.
Thompkins, 560 U.S. 370 (2010), and Miranda v. Arizona, 384 U.S. 436
(1966), given the “fundamental principle that a suspect’s silence in the
face of questioning cannot be used as evidence against him at trial,
whether that silence would constitute a valid invocation of the ‘right to
cut off questioning’ or not.” Hurd, 619 F.3d at 1088.
           UNITED STATES V. GARCIA-MORALES                  13

substantial rights; and (4) the impropriety seriously affected
the fairness, integrity, or public reputation of judicial
proceedings when viewed in the context of the trial as a
whole. United States v. Alcantara-Castillo, 788 F.3d 1186,
1190–91 (9th Cir. 2015). The prosecution’s flagrant and
repeated use of Garcia’s post-arrest silence against him at
trial to prove his guilt satisfies all four plain-error prongs.
As described above, the prosecution’s use of Garcia’s
silence was a clear constitutional violation under Doyle—
satisfying the first two plain-error prongs. As for the third
plain-error prong, the violation affected Garcia’s substantial
rights because the prosecution’s use of his silence was
critical to defeating Garcia’s sole defense theory: that he
lacked the mens rea to commit alien smuggling because he
intended to turn the smuggled aliens and his co-conspirators
over to Border Patrol officials. Indeed, Garcia’s mens rea
was the only disputed element at trial, and the evidence the
prosecution put forward to establish his mens rea other than
his post-arrest silence was both thin and circumstantial. The
fourth plain-error prong is satisfied because, as the Supreme
Court has noted, it is “fundamentally unfair” to allow a
criminal defendant’s silence to be used against him at trial,
given his constitutional privilege against self-incrimination.
Doyle, 426 U.S. at 618. Such a violation necessarily
implicates the integrity and public reputation of federal
criminal proceedings, because it impacts whether future
arrestees can rely on pre-interrogation promises that they
have the right to remain silent, and the implicit guarantee
that exercising that right will carry no penalty at trial.

    Because the prosecution’s use of Garcia’s post-arrest
silence against him at trial was plainly erroneous, I would
reverse Garcia’s conviction and remand for further
proceedings.
