                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2012
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Tirso Onofre-Espinoza,                   * District of Minnesota.
                                         *
             Appellant.                  *        [UNPUBLISHED]
                                    ___________

                            Submitted: September 7, 1998

                                Filed: September 18, 1998
                                    ___________

Before McMILLIAN, RICHARD S. ARNOLD, and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________

PER CURIAM.

       Tirso Onofre-Espinoza appeals the judgment the district court1 entered upon the
jury&s verdict finding him guilty of producing false Social Security cards, producing
false alien registration cards, and unlawfully possessing five or more United States
identification cards, in violation of 18 U.S.C. §§ 2, 1028(a)(1), (2), (3), and 1546(a).
For reversal, he argues that the district court erred in failing to grant him a mistrial

      1
        The Honorable Michael James Davis, United States District Judge for the
District of Minnesota.
because a question by the prosecutor violated Doyle v. Ohio, 426 U.S. 610 (1976), and
his Fifth and Fourteenth Amendment rights. We affirm.

       During trial, Mr. Onofre-Espinoza admitted the charged conduct, but asserted
the defense of duress, contending that he would not have committed the acts but for
threats to him and his family. On cross-examination the prosecutor questioned why the
defendant had not moved away if he was being threatened. Mr. Onofre-Espinoza
agreed he was free to move, but said he knew those threatening him would look for him
wherever he went and could kill him or a family member. After the defendant agreed
he could have moved before government undercover agents came to his apartment to
retrieve false documents he had assisted in preparing for them, the following colloquy
occurred between Mr. Onofre-Espinoza and the prosecutor:

      Q. And it&s true, isn&t it, that prior to your arrest, you never reported these
      threats to the police, is that true?

      A. No, I never reported them.

      Q. And, in fact, it&s the occasion of this trial that that&s brought up for the first
      time these threats?

       Defense counsel objected to this question. Out of the jury&s hearing, the district
court sustained an objection based on an arrestee&s right to remain silent following
Miranda warnings, but denied the defendant&s request for a mistrial. The prosecutor
asked no further questions regarding the subject. In closing argument (and without
objection), the prosecutor queried why the defendant had not moved away or contacted
authorities if he were being threatened.

     The Supreme Court held in Doyle that the Due Process Clause prohibits
impeachment on the basis of a defendant&s silence at the time of arrest and following

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Miranda warnings. See 426 U.S. at 619. Although we find that the challenged
question implicitly referred to Mr. Onofre-Espinoza&s post-arrest silence, we conclude
that under the Supreme Court&s holding in Greer v. Miller, 483 U.S. 756 (1987), no
Doyle violation occurred.

       In Greer, the trial court sustained the defendant&s objection to a question
specifically directed to the defendant&s silence at the time of arrest, and the jury was
told to ignore the question “for the time being.” See Greer, 483 U.S. at 758. No
further questioning occurred regarding the topic, the state did not specifically refer to
the defendant&s post-arrest silence during closing argument, and the jury was instructed
to disregard questions to which an objection was sustained. See id. at 764. The Court
in Greer held that no Doyle violation had occurred because the defendant&s “postarrest
silence was not submitted to the jury as evidence.” Id. at 764-65. We find Greer
controlling here where the district court sustained the objection to a question implicitly
referring to the defendant&s post-arrest silence, the line of questioning ceased, and no
specific reference to post-arrest silence occurred during closing argument.
Furthermore, the jury was instructed several times that an attorney&s questions are not
evidence and was also instructed that a question containing a factual assertion was not
evidence, that its verdict was to be based only on evidence, and that proposed
testimony to which an objection was sustained was to be disregarded.

       We also conclude that Mr. Onofre-Espinoza was not denied due process
because the prosecutor&s unanswered question did not result in a fundamentally unfair
trial. See Greer, 483 U.S. at 765-76.

      Accordingly, we affirm the judgment of the district court.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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