                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 12-50340
                 Plaintiff-Appellee,
                                                     D.C. No.
                     v.                           3:11-cr-00371-
                                                      JAH-1
 JOSE ANGEL RAMIREZ-ESTRADA,
              Defendant-Appellant.                   OPINION


        Appeal from the United States District Court
           for the Southern District of California
         John A. Houston, District Judge, Presiding

                   Argued and Submitted
           February 3, 2014—Pasadena, California

                       Filed April 25, 2014

   Before: Mary M. Schroeder and Richard R. Clifton,
   Circuit Judges, and John R. Tunheim, District Judge.*

                    Opinion by Judge Clifton




 *
   The Honorable John R. Tunheim, District Judge for the United States
District Court for the District of Minnesota, sitting by designation.
2           UNITED STATES V. RAMIREZ-ESTRADA

                           SUMMARY**


                           Criminal Law

    Reversing a conviction of attempted entry after
deportation and making a false claim to United States
citizenship, the panel held that use of the defendant’s post-
Miranda-invocation silence to impeach him violated his
constitutional rights under Doyle v. Ohio.

    The panel clarified that a Doyle violation occurs where
the prosecution uses a defendant’s post-invocation silence to
impeach the defendant regardless of whether, as here, the
police complied with Miranda.

    The panel disagreed with the government and the district
court that it was the defendant’s statements in response to
routine booking questions, rather than his silence, that were
used to impeach him. The panel explained that the
defendant’s statements, by themselves, are not directly
inconsistent with his testimony, and it is only what he omitted
from his statements that was relevant to impeach him.

   The panel concluded that the error was not harmless, and
remanded.




  **
     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. RAMIREZ-ESTRADA                 3

                        COUNSEL

Caitlin E. Howard, Federal Defenders of San Diego, Inc., San
Diego, California, for Defendant-Appellant.

Anne Kristina Perry (argued), Assistant United States
Attorney, Laura E. Duffy, United States Attorney, and Bruce
R. Castetter, Assistant United States Attorney, Chief,
Appellate Section, Criminal Division, San Diego, California,
for Plaintiff-Appellee.


                        OPINION

CLIFTON, Circuit Judge:

    This case concerns the scope of a criminal defendant’s
constitutional rights under Doyle v. Ohio, 426 U.S. 610
(1976), which prevents impeachment of a defendant with his
post-Miranda silence. Defendant-Appellant Jose Angel
Ramirez-Estrada was convicted after a jury trial of attempted
illegal reentry and making a false claim to U.S. citizenship.
Ramirez-Estrada testified in his own defense, but the
government in rebuttal introduced his prior statements in
response to booking questions posed by a Customs and
Border Protection (“CBP”) officer after Ramirez-Estrada had
been arrested and had invoked his Miranda rights. Nothing
Ramirez-Estrada said in those statements served to impeach
his testimony. Rather, it is what he failed to say that was
relevant to undermine his credibility. We thus conclude that
the use of Ramirez-Estrada’s post-invocation silence to
impeach him violated his rights under Doyle. Because this
error was not harmless beyond a reasonable doubt, we
reverse.
4         UNITED STATES V. RAMIREZ-ESTRADA

I. Background

    Ramirez-Estrada was indicted for attempted illegal
reentry in violation of 8 U.S.C. § 1326 and for making a false
claim to U.S. citizenship in violation of 18 U.S.C. § 911. He
was found guilty by a jury on both charges. The district court
sentenced him to twenty-four months’ imprisonment on each
count, with the sentences to run concurrently. Ramirez-
Estrada timely appealed from that final judgment.

    The facts were mostly undisputed at trial. Ramirez-
Estrada is an alien who had been deported from the United
States on previous occasions. At some point during his prior
incarceration in the United States in 2005, Ramirez-Estrada
sustained a serious jaw injury, regarding which the defense
presented extensive testimony. Sometime thereafter,
Ramirez-Estrada was involved in court proceedings in front
of United States District Judge Dana Sabraw. Judge Sabraw
recommended to the Bureau of Prisons that Ramirez-
Estrada’s jaw injury be treated while he was in custody. The
injury was never treated, and Ramirez-Estrada was later
deported to Mexico.

    In the early morning hours of January 4, 2011, without
having obtained permission to reenter the United States,
Ramirez-Estrada approached the San Ysidro Port of Entry.
The only dispute at trial concerned what occurred when
Ramirez-Estrada approached the primary inspection area of
the Port of Entry.

    CBP Officer Matthew Ponce de Leon manned the primary
inspection booth that Ramirez-Estrada approached. Although
Officer Ponce de Leon had a difficult time recalling Ramirez-
Estrada’s name and other details of their encounter, he
           UNITED STATES V. RAMIREZ-ESTRADA                   5

testified that when he asked Ramirez-Estrada about his
citizenship, Ramirez-Estrada responded that he was a U.S.
citizen born in Las Vegas but claimed to have no paperwork
because it had been stolen. Because Ramirez-Estrada gave
Officer Ponce de Leon his true identity, however, the officer
was able to look him up and discovered the prior
deportations. He then referred Ramirez-Estrada to secondary
inspection. Officer Ponce de Leon also testified that at no
point did Ramirez-Estrada complain of any physical ailments.
On cross-examination, the defense called into question
Officer Ponce de Leon’s memory and Spanish language
skills.

    Ramirez-Estrada testified differently. He did not approach
the Port of Entry in an attempt to reenter the United States, he
testified, but only to seek help for his jaw injury, which had
become increasingly painful with time and for which he had
been unable to obtain any treatment in Mexico. He believed
that based on Judge Sabraw’s recommendation he would get
treatment from federal officials. He explained all this to
Officer Ponce de Leon and other officers at neighboring
booths. He was then told to leave, but he did not because he
was desperate to get treatment for his jaw injury, and so he
was arrested and sent to the secondary inspection area. He
also testified that he provided the officers with a Mexican
identification card containing his true name, photo, and
fingerprint. He denied that he ever claimed to be a U.S.
citizen or to have been born in Las Vegas, but he
acknowledged having told the officers that he had lived near
that city, among other places. His credibility was challenged
on cross-examination, in particular by suggestions that
Ramirez-Estrada might not know what procedures would take
place at the border or that the officers would ask for
documents.
6          UNITED STATES V. RAMIREZ-ESTRADA

    No other witness testified directly as to the events at
primary inspection. The government sought to impeach
Ramirez-Estrada’s testimony by offering testimony in
rebuttal by CBP Officer Gabriela Nicasio, who was
responsible for booking Ramirez-Estrada several hours
following the encounter between Ramirez-Estrada and
Officer Ponce de Leon. The district court permitted that
rebuttal testimony, over defense counsel’s objections,
including a Doyle objection. It is the allowance of that
testimony that is central to this appeal.

    As part of the booking process, Officer Nicasio read
Ramirez-Estrada his Miranda rights, which he invoked by
electing to wait for an attorney before answering any
questions. Officer Nicasio thereafter did not ask any
questions about the circumstances of Ramirez-Estrada’s
crime, but instead asked him routine booking questions. She
testified about that at trial, as the government’s sole rebuttal
witness. Aside from background information and an
identification of Ramirez-Estrada as the suspect apprehended
on January 4, 2011, her direct rebuttal testimony consisted
entirely of the following:

       Q. Agent Nicasio, when you met with the
       defendant, did you ask him some questions?

       A. Yes, I did.

       Q. Did you ask him questions regarding his
       health?

       A. Yes, I did.
         UNITED STATES V. RAMIREZ-ESTRADA               7

      Q. What question did you ask him regarding
      his health?

      A. I asked him if he had any health problems.

      Q. What was his response?

      A. He stated no.

      Q. Did you ask him any other questions where
      he responded with information about his
      health?

      A. I asked him if during the biographical
      information, if he had any scars or tattoos, to
      which he remarked or stated that he had two
      scars above his eyebrows, somewhere in
      there, and he pointed to his forehead, and he
      had had a broken nose.

On cross-examination, the precise wording of the first
question was elicited:

      Q. Now, when you asked him about health
      condition, you actually asked him if he had
      any health problems, like a heart condition,
      diabetes, or anything like that, right?

      A. Yes, sir.

      Q. Okay. So those were your actual, specific
      words, like a heart condition, diabetes,
      anything like that?
8                UNITED STATES V. RAMIREZ-ESTRADA

             A. Yes, sir. I used those as examples.

    The government explicitly referred to Officer Nicasio’s
testimony in its closing argument.1 The guilty verdict
followed, and later this appeal. We have jurisdiction under
28 U.S.C. § 1291.

II. Discussion

    On appeal, Ramirez-Estrada alleges that various
evidentiary and constitutional violations occurred at his trial.
We only address Ramirez-Estrada’s claim of constitutional


    1
        The prosecutor argued:

                  There is another piece of evidence that you need to
             consider. You’ll recall the very last witness who
             testified in this case, that was Officer Nicasio, Gabriela
             Nicasio. When did Officer Nicasio meet with the
             defendant? Well, you’ll recall the testimony in this
             case, ladies and gentlemen. The defendant claimed that
             he told everybody that he needed help, that he hurt, that
             the judge had told him he needed to have this surgery,
             and he wanted help. And that has been the theme
             throughout this case; he needed help.

                  Ladies and gentlemen, when he was specifically
             asked by Officer Nicasio, do you have any physical
             problems, diabetes, heart, anything, he said no. She
             said, do you have any tattoos, any identifying marks?
             He said, I have a broken nose.

                  Ladies and gentlemen, he is talking to an officer
             who is making inquiries about his health, and he says
             no. That is a circumstance, ladies and gentlemen, that
             is direct evidence that he committed the crimes with
             which he’s been charged . . . .
           UNITED STATES V. RAMIREZ-ESTRADA                  9

error under Doyle v. Ohio, 426 U.S. 610 (1976). We review
alleged violations of a defendant’s constitutional rights under
Doyle de novo. See United States v. Caruto, 532 F.3d 822,
827 (9th Cir. 2008). An error under Doyle requires reversal
unless the government can show that the error was harmless
beyond a reasonable doubt. Id.

   A. Doyle Error

     A criminal defendant’s rights under Miranda v. Arizona,
384 U.S. 436 (1966), including his right to remain silent, are
by now ingrained in our national consciousness. To protect
the right to remain silent, the Supreme Court held in Doyle
that a defendant’s silence after receiving Miranda warnings
cannot be used to impeach him should he choose to testify at
trial. Doyle, 426 U.S. at 619. Doyle’s reach has been limited,
however. For instance, the Supreme Court held in Anderson
v. Charles, 447 U.S. 404, 408 (1980), that a defendant’s trial
testimony can be impeached by introducing prior inconsistent
statements made at the time of arrest but after Miranda rights
had been waived. In Charles, the defendant had told the
police that he stole a car from one location but at trial
changed his story to say that the car had been stolen from a
different location. See id. at 404–06. Introducing such
inconsistent statements did not violate Doyle because no
meaning was being drawn from the defendant’s silence. Id. at
409.

    In Caruto, we interpreted the analytical framework
established by these cases as follows:

       As stated in Charles, the primary inquiry in
       cases where a defendant waives his or her
       Miranda rights is whether the prosecutor’s
10        UNITED STATES V. RAMIREZ-ESTRADA

       question or argument is “designed to draw
       meaning from silence” or instead merely “to
       elicit an explanation for a prior inconsistent
       statement.” 447 U.S. at 409. The Supreme
       Court noted that “[e]ach of two inconsistent
       descriptions of events may be said to involve
       ‘silence’ insofar as it omits facts included in
       the other version.” Id. However, the Court
       held that “Doyle does not require any such
       formalistic understanding of ‘silence,’ and
       we find no reason to adopt such a view in
       this case.” Id. Where, as here, it is a
       defendant’s invocation of her Miranda rights
       that results in the omitted facts that create the
       difference between the two descriptions,
       cross-examination based on those omissions
       draws meaning from the defendant’s protected
       silence in a manner not permitted by Doyle.

532 F.3d at 830–31 (citation omitted).

    Caruto highlighted two crucial factors that trigger Doyle:
(1) a defendant’s invocation of his right to remain silent and
(2) an omission in post-Miranda statements arguably
inconsistent with his trial testimony. See id. at 831 (“Where
a defendant has invoked her Miranda rights, it is even more
important that the distinction between inconsistency and
omission be carefully observed.”). By contrast, a direct
inconsistency between the post-Miranda statements, in and of
themselves, and the trial testimony may be used to impeach
a defendant. See Charles, 447 U.S. at 408–09.

   We analyze the facts of this case under this framework.
Although neither the Supreme Court nor this court has
           UNITED STATES V. RAMIREZ-ESTRADA                  11

previously faced the particular situation presented here, we
conclude that Doyle bars admission of Ramirez-Estrada’s
statements to Officer Nicasio. It is clear and undisputed that
Ramirez-Estrada invoked his Miranda rights by asking for a
lawyer. The difficult question is the second one: whether his
statements in response to Officer Nicasio’s routine booking
questions were directly inconsistent with his trial testimony.
We conclude that they were not and that it was, instead, his
silence that was used against him.

    We initially clarify that, for purposes of Doyle, it is
irrelevant that there was no Miranda violation. The
government argues that no Doyle violation could have
occurred because there was no Miranda violation. This
argument misreads our precedent. In Caruto, this court held
that there was a Doyle violation even though there was no
Miranda violation. The defendant there initially waived her
Miranda rights and answered the police’s questions; only five
to seven minutes later did she invoke her Miranda rights and
cut off the interview. Caruto, 532 F.3d at 824. Here, there
was also no Miranda violation. Although Ramirez-Estrada
invoked his Miranda rights at the outset of the interview,
Officer Nicasio permissibly asked him routine booking
questions not covered by Miranda. See Pennsylvania v.
Muniz, 496 U.S. 582, 601–02 (1990). Nevertheless, a Doyle
violation occurs where the prosecution uses defendant’s post-
invocation silence to impeach him, regardless of whether the
police complied with Miranda.

    This brings us to the central question in this case: whether
the prosecution in fact used defendant’s silence to impeach
him. The government argues that Ramirez-Estrada’s silence
was not used to impeach him. The government asserts that it
was his statements in response to the routine booking
12          UNITED STATES V. RAMIREZ-ESTRADA

questions that were used to impeach him, because of those
statements’ inconsistency with his trial testimony.2 The
district court agreed. It reasoned that this case was
distinguishable from Doyle because the prosecution here
sought to impeach Ramirez-Estrada only with his answers to
Officer Nicasio’s questions and not with his silence—unlike
Doyle, where the prosecution sought to impeach the
defendant with his failure to tell his story to the police.

     We disagree. Ramirez-Estrada’s statements, by
themselves, are not directly inconsistent with his testimony.
It is only what he omitted from his statements—in other
words, his silence—that was relevant to impeach him.

    There is no doubt that in some circumstances a
defendant’s silence may be used to impeach him. In
particular, a defendant may reasonably “be impeached by
[his] previous failure to state a fact in circumstances in which
that fact naturally would have been asserted.” Jenkins v.
Anderson, 447 U.S. 231, 239 (1980). Here, the asserted
inconsistency is precisely that: Ramirez-Estrada failed to
mention his jaw injury to Officer Nicasio. Had Ramirez-
Estrada never invoked his Miranda rights, this kind of
impeachment would have been permissible. His invocation of
his Miranda rights, however, brings this case within the
purview of Doyle.


 2
   The government also argues that even if the statements were taken in
violation of Miranda, they can be used to impeach the defendant’s
inconsistent trial testimony. Although correct, this argument again
misreads our court’s precedents: as we have already discussed, in the
context of Doyle, we are not concerned with whether Miranda was
complied with. All that matters is that the defendant invoked his Miranda
rights. See Caruto, 532 F.3d at 824.
           UNITED STATES V. RAMIREZ-ESTRADA                   13

    The facts of this case compel our conclusion that Doyle
was violated. As part of the booking process after Ramirez-
Estrada’s arrest, Officer Nicasio asked Ramirez-Estrada two
questions that are relevant here. First, she asked him: “do you
have any health problems, like a heart condition or diabetes
or anything like that?” Ramirez-Estrada answered “no.”
Second, she asked him “do you have any tattoos, any scars?”
After Ramirez-Estrada described his tattoos, she asked again
“what about any major scars, no scars?” To this, he responded
that he had a broken nose from when he was a boxer.3 Based
on this exchange, Officer Nicasio gave the testimony in
rebuttal quoted above. The significance of his responses was
not what he said, but what he did not say: he never mentioned
his jaw injury.

     In the context of Officer Nicasio’s first question, “health
problems” referred to potentially life-threatening conditions,
“like a heart condition or diabetes.” As part of the booking
process, it makes sense that such a question would be asked,
given that the location of his detention pending trial may
depend on whether he has any significant health conditions.
It is therefore not directly inconsistent for Ramirez-Estrada to
have answered “no” despite his claim that he approached the
Port of Entry to seek help for his jaw injury. By that point,
Ramirez-Estrada had been arrested and had invoked his right
to remain silent. His answer is thus relevant only insofar as it
demonstrates his failure to talk about the circumstances of his
offense. In other words, the impeachment operated as a
comment on Ramirez-Estrada’s silence, which is
impermissible under Doyle.



   3
     A recording of the interview, from which we can draw precise
quotations, is part of the record.
14         UNITED STATES V. RAMIREZ-ESTRADA

    Similarly, Officer Nicasio’s second question, which asked
about tattoos and scars, presumably for purposes of future
identification, did not directly call for Ramirez-Estrada to
mention his jaw injury. His answer, which mentions a broken
nose but not his jaw injury, is again relevant only insofar as
it demonstrates what Ramirez-Estrada failed to state. It is
another impermissible comment on his silence.

    That Officer Nicasio’s testimony operated as a comment
on Ramirez-Estrada’s silence is made clear when we compare
the facts of this case to the facts presented in cases cited by
the government. For example, in United States v. Gomez,
725 F.3d 1121, 1124–25 (9th Cir. 2013), the defendant
refused to answer border officers’ questions regarding
methamphetamine found hidden in the gas tank of his car.
Despite refusing to answer their questions after being given
Miranda warnings, the following exchange occurred:

       [Officer] Fuentes: You don’t, don’t want to
       talk?

       Gomez: No, it’s that no, I can’t talk. It . . . it’s
       my family, you see.

       Fuentes: Say again?

       Gomez: It’s my family.

       Fuentes: Your family?

       Gomez: Yes. It’s, I’m just going to say
       something. Okay?

       Fuentes: [unintelligible]
           UNITED STATES V. RAMIREZ-ESTRADA                   15

        Gomez: Listen, listen, listen, listen, listen
        [unintelligible] . . . I can’t say anything
        because my family . . . my family will get
        killed. Okay?

Id. During the government’s rebuttal, Officer Fuentes was
permitted to testify regarding Gomez’s statement that his
family would get killed to impeach Gomez’s trial testimony
that he had no knowledge of the methamphetamine. Id. at
1125. The court held that, “in order to be admissible, the
[prior] statement must be ‘arguably’ inconsistent with the
defendant’s testimony at trial.” Id. at 1126. Therefore, the
defendant’s statement that his family would get killed if he
talked was admissible to impeach his claimed lack of
knowledge, because of the arguable inconsistency between
what he previously said and what he testified to at trial. Id. at
1126–27. In other words, his statement, in and of itself, was
arguably inconsistent with his trial testimony.

     By contrast, the government here sought to impeach
Ramirez-Estrada not based on what he said but on what he
failed to say—that is, by his silence. His statements, by
themselves, are not arguably inconsistent with his testimony;
it is only his failure to mention his jaw injury, in response to
questions that did not directly call for that information, that
arguably impeaches him. Officer Nicasio’s testimony is thus
relevant only insofar as it highlights Ramirez-Estrada’s
silence regarding his jaw injury.

   We offer an additional reason for our conclusion.
Ramirez-Estrada had no way to effectively cross-examine
Officer Nicasio without bringing out the fact that he had
invoked his Miranda right to remain silent. See Caruto,
532 F.3d at 830 (“Caruto could not fully explain why her
16        UNITED STATES V. RAMIREZ-ESTRADA

post-arrest statement was not as detailed as her testimony at
trial without disclosing that she had invoked her Miranda
rights.”). As we have already discussed, Officer Nicasio’s
booking questions were narrow questions that did not call for
Ramirez-Estrada to mention his jaw injury. Although defense
counsel tried to elicit from Officer Nicasio the narrow nature
of her question regarding Ramirez-Estrada’s health, it was
impossible for defense counsel to probe the limited nature of
her inquiry without eliciting from her the fact that Ramirez-
Estrada had invoked his Miranda rights. Notably, defense
counsel could not ask Officer Nicasio whether she inquired
as to Ramirez-Estrada’s reasons for approaching the Port of
Entry. Because Officer Nicasio’s direct testimony necessarily
implicated Ramirez-Estrada’s silence, the only way his
counsel could effectively cross-examine her was by eliciting
the reason for that silence—his invocation of Miranda.
Unsurprisingly, defense counsel did not go down that route,
as that would have been more likely to damage Ramirez-
Estrada’s case than to help it. Therefore, by operating as a
comment on Ramirez-Estrada’s silence, Officer Nicasio’s
testimony was in practice irrebuttable save by further
highlighting the fact of Ramirez-Estrada’s silence. But Doyle
safeguards Miranda rights by keeping from the jury the fact
that a defendant invoked his right to remain silent. It would
thus run counter to Doyle to allow the government to
introduce testimony inevitably implicating defendant’s
silence after invocation of Miranda, leaving the defendant
with no practical way to rebut that testimony other than by
highlighting his invocation of Miranda—precisely what
Doyle mandates that the jury should not be exposed to. See
Doyle, 426 U.S. at 619.
           UNITED STATES V. RAMIREZ-ESTRADA                   17

    B. Harmfulness of Error

     Given the constitutional Doyle error that occurred,
reversal is required unless the error is harmless beyond a
reasonable doubt. See United States v. Velarde-Gomez,
269 F.3d 1023, 1034 (9th Cir. 2001) (en banc). We consider
three factors in deciding the question of harmlessness: “[1]
the extent of comments made by the witness, [2] whether an
inference of guilt from silence was stressed to the jury, and
[3] the extent of other evidence suggesting defendant’s guilt.”
Id. (alterations in original) (quoting United States v. Newman,
943 F.2d 1155, 1158 (9th Cir. 1991)).

      Although the jury here was not explicitly urged to make
an inference of guilt from silence, the first and third factors
suggest that the error was harmful, the third factor strongly
so. Regarding the first factor, Officer Nicasio’s entire
substantive testimony on direct examination consisted of
relating Ramirez-Estrada’s responses to the two booking
questions at issue. This, combined with the fact that Officer
Nicasio was the sole government rebuttal witness and was
thus the last witness to testify before the jury’s deliberations,
endowed the fact of Ramirez-Estrada’s failure to mention his
jaw injury to Officer Nicasio with great significance. Cf. id.
at 1035 (“[T]he qualitative extent [of the witness’s testimony]
. . . endowed the fact of [the defendant’s] silence with great
significance . . . .”).

     More importantly, as to the third factor, the extent of the
other evidence was very limited. The only disputed issues at
trial were whether Ramirez-Estrada intended to enter the
United States and what he said to Officer Ponce de Leon at
the primary inspection area of the Port of Entry. This issue
boiled down to a credibility battle between Ramirez-Estrada
18         UNITED STATES V. RAMIREZ-ESTRADA

and Officer Ponce de Leon. Their stories were inconsistent,
and the credibility of each was attacked. Ramirez-Estrada’s
failure to mention his jaw injury to Officer Nicasio was
offered by the government in rebuttal for the purpose of
undermining Ramirez-Estrada’s credibility, and if it
persuaded the jury, it was very damaging to his defense.
Indeed, “because the defendant offered ‘plausible, innocent
explanation[s]’” for his conduct “and for the inconsistencies
in his statements to . . . officials”—including a potential
language barrier between himself and Officer Ponce de
Leon—Ramirez-Estrada’s “credibility was of utmost
importance.” Id. (alteration in original) (quoting United States
v. Foster, 227 F.3d 1096, 1101 (9th Cir. 2000)). Ramirez-
Estrada’s theory, “while not necessarily compelling, is . . .
plausible.” Id. As such, we cannot conclude that the error was
harmless beyond a reasonable doubt.

III.     Conclusion

    Allowing Officer Nicasio to testify in a manner that could
only invite the jury to draw inferences from Ramirez-
Estrada’s post-invocation silence violated his constitutional
rights under Doyle. Because this constitutional violation was
not harmless beyond a reasonable doubt, we reverse Ramirez-
Estrada’s conviction and remand the case to the district court.

       REVERSED AND REMANDED.
