     Case: 15-41136      Document: 00513854737         Page: 1    Date Filed: 01/30/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                      No. 15-41136                           FILED
                                                                      January 30, 2017
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

              Plaintiff - Appellee

v.

GAMALIEL DELIRA-VILLARREAL,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:15-CR-51-1


Before JONES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Gamaliel Delira-Villarreal appeals the district court’s denial of his
motion for a new trial following his jury trial conviction for possession with
intent to distribute marijuana. Delira-Villarreal contends that his conviction
should be reversed because the Government violated his Fifth Amendment
rights under Doyle v. Ohio, 426 U.S. 610 (1976), by commenting on his silence
upon arrest during its closing argument. Applying plain error review, we



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 15-41136

conclude that even if the Government committed a Doyle violation, it did not
affect his substantial rights and AFFIRM.
                                              I
      Delira-Villarreal was arrested in December 2014 when border patrol
agents at the Falfurrias Border Patrol checkpoint in Texas discovered
marijuana hidden in the back of the van that he was driving. When Delira-
Villarreal pulled up to the checkpoint, a Border Patrol dog alerted its handler
to something inside the van, and Border Patrol agents directed Delira-
Villarreal to a secondary inspection area. While agents inspected the van,
Delira-Villarreal gave evasive and inconsistent answers to questions about his
business in Texas and his employer. His tools were scattered haphazardly
throughout the back of the van where the agents discovered approximately
fifty bundles of marijuana concealed behind some shelving units.               Delira-
Villarreal remained silent when placed under arrest and read his Miranda 1
rights.
      Pending trial, Delira-Villarreal was detained at the Brooks County
Detention Center, where he was aware that his telephone calls were monitored
and recorded. At the Government’s request at trial, the detention facility
produced recordings of Delira-Villarreal’s calls, and excerpts were played and
transcribed for the jury in which he discussed how the border patrol dog had
“caught” him and made other inculpatory statements that suggested that the
drugs hidden in the van were his.
      The agent that placed him under arrest and read him his Miranda rights
also testified. Under direct examination by the prosecution, he described those
events as follows:
      Q. Now, before you placed him under arrest, did you tell him why
      you were placing him under arrest?

      1   Miranda v. Arizona, 384 U.S. 436 (1966).


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      A. At that time, I believe we didn’t until before we read his
      Miranda rights.
      Q. Oh . . . you didn’t inform him of what . . . he was being arrested
      until after you gave him his rights?
      A. No, no. Before we read him his Miranda rights, we let him
      know why he was being under arrest.
      Q. Okay. And when your – so what was his demeanor when you
      were telling him that – what did you tell him?
      A. I just told him he was being placed [under arrest] for narcotics
      being in his vehicle, for possession of marijuana.
      Q. Okay.
      A. And there was no demeanor. There was no nervousness, just
      – no outbursts or as questioned as to why or it’s not mine or
      anything. He was just quiet.
      During closing argument, the Government urged the jurors to consider
Delira-Villarreal’s lack of response when he was arrested as evidence that he
knowingly possessed a controlled substance. The prosecutor said:
      So the only element really in question here is whether or not the
      Defendant knowingly possessed a controlled substance. . . . That
      when the Defendant was arrested and he was told what he was
      being arrested to – for, he turned around. He made no commotion.
      He showed no outbursts, no “What do you mean? What are you
      talking about? How can that be?” Nothing, he just turned around.
      In closing, the defense maintained that the Government had failed to
prove Delira-Villarreal’s knowledge that there were drugs in the van he was
driving beyond a reasonable doubt. During rebuttal, the prosecutor described
Delira-Villarreal’s initial statements as evasive, and then she again referred
to his post-arrest silence:
      [W]hen they told him he was being arrested for marijuana, he had
      no emotion. Do you think that somebody who didn’t know is not
      going to say, “What do you mean there’s marijuana in my vehicle?
      What? Who did this? I can’t believe this.” No show of emotion, no
      outbursts, no anger, no disgust, nothing. You tell me when
      someone who didn’t know that there was marijuana in the vehicle
      that you were driving tells you that there is marijuana in there
      and you have absolutely no reaction? Is that – does your reason


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      and your common sense tell you that that is the reaction that
      someone is going to have? No.
      The prosecutor closed with a discussion of the value of the contraband
and Delira-Villarreal’s recorded conversation.       Delira-Villarreal’s criminal
trial and jury deliberation lasted one day, and the jury found him guilty as
charged.
      Delira-Villarreal filed a motion for a new trial alleging that the
prosecutor violated Doyle during her closing and rebuttal arguments. After
conducting a hearing, the district court found, although the prosecution’s
statements were likely improper, the substantial evidence of guilt, such as his
evasive answers, the presence of his tools in the van, and his inculpatory phone
calls, rendered the error harmless, and therefore denied his motion. Delira-
Villarreal appealed.
                                        II
      Plain error review applies because Delira-Villarreal did not object
contemporaneously at trial. To show plain error, a defendant must show (1) a
forfeited error, (2) that is clear or obvious, and (3) that affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he discharges
that burden, we may exercise our discretion “to remedy the error . . . if the error
seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted; brackets in
original).
      In Doyle v. Ohio, the Supreme Court held “that the use for impeachment
purposes of [a defendant’s] silence, at the time of arrest and after receiving
Miranda warnings, violated the Due Process Clause.” 426 U.S. at 619. The
Court explained that “while it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty, such assurance is implicit
to any person who receives the warnings.” Id. at 618. The Court concluded


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that because of this implicit assurance, “it would be fundamentally unfair and
a deprivation of due process to allow the arrested person’s silence to be used to
impeach an explanation subsequently offered at trial.” Id.; see also Wainwright
v. Greenfield, 474 U.S. 284, 290 (1986) (“The source of the unfairness was the
implicit assurance contained in the Miranda warnings ‘that silence will carry
no penalty.’” (internal citations omitted)).     However, commenting on a
defendant’s silence prior to receiving the Miranda warnings, even if post-
arrest, is permissible for impeachment purposes. Fletcher v. Weir, 455 U.S.
603, 606-07 (1982) (Doyle does not prohibit the Government from commenting
on a defendant’s post-arrest, but pre-Miranda warnings, silence).
                                       III
        Although the record is unclear as to whether the prosecutor referred to
Delira-Villarreal’s pre- or post-Miranda silence, even if there was a Doyle
error, Delira-Villarreal has not demonstrated that it affected his substantial
rights. Delira-Villarreal claims that he did not know the drugs were in the
van.     His version of events is not completely implausible and there is
substantial evidence of his guilt; therefore we must examine the “facts, the
trial context of the error, and the prejudice created thereby as juxtaposed
against the strength of the evidence of the defendant’s guilt.” United States v.
Shaw, 701 F.2d 367, 383 (5th Cir. 1983) (quoting United States v. Meneses-
Davila, 580 F.2d 888, 890 (5th Cir. 1978)). We “have declined to reverse even
where the exculpatory story is not totally implausible but the evidence of guilt
is substantial or overwhelming.” United States v. Martinez–Larraga, 517 F.3d
258, 269 n.10 (5th Cir. 2008).
        The Government’s statements during closing argument went to the heart
of the defense’s case regarding knowledge, but there was substantial evidence
presented at trial of Delira-Villarreal’s knowledge: Delira-Villarreal provided



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                                 No. 15-41136

contradictory answers when asked the purpose of his trip to Texas and his
employer’s identity; his own tools were found on the shelving system that
concealed the marijuana; and Delira-Villarreal placed an inculpatory
telephone call while detained following arrest in which he discussed how he
was caught by the dog and that the drugs were his. This evidence supports the
Government’s argument that the Doyle violation did not affect the outcome of
the district court proceedings. In United States v. Vargas, we held that even if
there had been a Doyle violation, the prosecution’s comments were limited to a
few moments during closing arguments and therefore did not affect the
fundamental fairness of the trial where there was ample evidence for a
conviction. 580 F.3d 274, 279 (5th Cir. 2009). And in United States v. Salinas,
we affirmed the district court where the Government had introduced sufficient
evidence to rebut the defendant’s exculpatory story at trial, making any Doyle
violation harmless. 480 F.3d 750, 760 (5th Cir. 2007). We conclude that Delira-
Villarreal has not demonstrated that his substantial rights were affected by
the Doyle violation as required under plain error review. See Puckett, 556 U.S.
at 135.
                                      IV
      Accordingly, the district court’s judgment is AFFIRMED.




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