           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 12, 2008
                                     No. 07-40550
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

CHAD WALTER DEE POPE,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 2:07-CR-9-ALL




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Chad Pope appeals his conviction of possession with intent to distribute
marihuana. He argues that his conviction should be vacated on plain error re-


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-40550

view because a Border Patrol agent testified, under questioning from Pope’s at-
torney, that Pope had invoked his right to remain silent after authorities read
him his Miranda rights.1 Pope relies on the holding in Doyle v. Ohio, 426 U.S.
610, 617-20 (1976), that a prosecutor may not use a defendant’s silence, at the
time of arrest and after receiving Miranda warnings, to suggest, for impeach-
ment purposes, that the defendant’s exculpatory story was made up at a later
time.
        The testimony arose after the Border Patrol agent testified that Pope ad-
mitted being present during at least part of the time during which the trailer he
was hauling, containing marijuana, was being loaded. Pope’s attorney tried to
undermine that testimony by pointing out that the agent never wrote down
Pope’s statement in his report. Pressing the agent, the attorney asserted that
the agent “could have had [Pope] sign a statement . . . based on . . . what you
stated he told you?” The agent explained that such was not possible, because
Pope refused to make a statement after he was read his Miranda rights. Pope
concedes that his refusal to make a statement after being read his Miranda
rights was not mentioned again, even in the government’s closing argument.
        Because Pope’s attorney elicited the agent’s testimony, United States v.
Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975); see also Doyle, 426 U.S. at 619
n.11 (citing Fairchild, 505 F.2d at 1383), we AFFIRM.




        1
         See Miranda v. Arizona, 384 U.S. 436, 479 (1966) (“[W]hen an individual is taken into
custody . . . [h]e must be warned prior to any questioning that he has the right to remain si-
lent, that anything he says can be used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.”).

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