                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       June 26, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    U N ITED STA TES O F A M ER ICA,

                Plaintiff-Appellee,

    v.                                                   No. 06-2185
                                                  (D.C. No. CR-06-609 M V)
    D EM ETRIO ESPIN O ZA -M EN DOZA,                     (D . N.M .)

                Defendant-Appellant.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.




         Demetrio Espinoza-M endoza appeals his conviction on one count of

fraudulent possession of an alien registration-receipt card (RRC) in violation of

18 U.S.C. § 1546. He contends that at trial (1) the prosecutor elicited testimony

and commented on his invocation of the right to remain silent; (2) defense

counsel was ineffective by not objecting to the use of his silence; and (3) there




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
was insufficient evidence that he knowingly possessed an RRC or knew that

either of the RRCs in his possession was fraudulent. W e affirm.

       On December 15, 2005, M r. Espinoza-M endoza left work for an

appointment with his probation officer. He was met at the probation office by

immigration agents Veronica Franco and Raul Esparza. Although the agents were

there in response to a call about “subjects . . . illegally present in the United

States,” R., Vol. 3 at 68, they eventually discovered two fraudulent RRCs in

M r. Espinoza-M endoza’s possession, and he was indicted for that offense.

       At trial, Agent Franco testified that when she identified herself to

M r. Espinoza-M endoza and told him she had “some questions regarding his status

in the United States,” he “became very angry” and said, “I’ve already talked to a

group of people w ho help immigrants, and they told me that I don’t have to tell

you anything.” R., Vol. 3 at 71, 72. W hen Agent Franco asked

M r. Espinoza-M endoza if he w as in the country legally, “he w ouldn’t

answer . . . [h]e just kind of stayed quiet,” id., but then “admitted he w as here

illegally.” Id. at 96. 1

       Agent Franco further testified that she and Agent Esparza then placed

M r. Espinoza-M endoza in their van for transport to a “booking station.” Id. at

113. Before leaving, M r. Espinoza-M endoza asked Agent Franco to retrieve his

1
      Agent Esparza provided similar testimony, stating that when Agent Franco
was questioning M r. Espinoza-M endoza at the probation office, he was “real
uncooperative” and “didn’t want to answer.” Id. at 161.

                                          -2-
wallet from his car. Agent Franco did so and inside found two fraudulent RRCs

in an envelope. 2

      At the station, M r. Espinoza-M endoza was taken to a detention area, where

he w as M irandized. See M iranda v. Arizona, 384 U.S. 436 (1966). He said that

he understood his rights and he signed a M iranda form so indicating. Agent

Franco testified she then showed him the cards and the following exchange

occurred:

      I [Agent Franco] said, “W ell, you know these are fake documents?[”]
      [M r. Espinoza-M endoza answered,] “W ell, I don’t know.[”]
      I said, “You know that these are fake resident alien cards?[”]
      [M r. Espinoza-M endoza responded,] “W ell, yeah. I guess.[”]
      [I then stated,] “Okay. So, what are you doing with them?[”]
      [M r. Espinoza-M endoza answered,] “Well, I was delivering them as a
      favor for a friend of mine.”
             ...
      I said[,] [“W]ell, what’s the name of your friend?[”]
      [M r. Espinoza-M endoza answered,] [“]W ell, I don’t know.[”]

R., Vol. 3 at 108-09. According to Agent Franco, M r. Espinoza-M endoza

eventually identified the friend as “Carlos,” id. at 109, and indicated that Carlos

made the RRCs.

      The only witness to testify for the defense w as M r. Espinoza-M endoza’s

employer, Nick Ruiz. He testified that a “Carlos Cantu” also worked for him, and

that around noon on December 15, he saw M r. Espinoza-M endoza and Carlos

speaking, heard M r. Espinoza-M endoza tell Carlos, “Just put it in the car, put it in



2
      M r. Espinoza-M endoza does not take issue with the search of his w allet.

                                         -3-
my wallet,” id. at 186, and he saw Carlos go to the car and put something “like a

small envelope” inside. Id. at 181-82.

      During closing arguments, the prosecutor urged the jury to “look at the

defendant’s demeanor, and what he said,” id. at 220, and to consider that “when

the agent first confronted the defendant, he was defiant.” Id. at 229. The jury

returned a guilty verdict, prompting this appeal.

      M r. Espinoza-M endoza contends his conviction should be overturned

because “the government elicited and received testimony that [he] asserted his

constitutional right to remain silent and then used that assertion against him.”

Aplt. Br. at 25. W e review for plain error because he did not make this objection

at trial. See United States v. Toro-Pelaez, 107 F.3d 819, 827 (10th Cir. 1997)

(citing United States v. Olano, 507 U.S. 725, 734 (1993)). “Plain error occurs

when there is (1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Portillo-Vega, 478 F.3d 1194, 1202 (10th Cir.

2007) (quotation omitted).

      It is well-settled that a prosecutor “may not use a defendant’s exercise of

his right to remain silent to obtain his conviction.” Pickens v. Gibson, 206 F.3d

988, 998 (10th Cir. 2000) (quotation omitted). This rule generally applies to both

pre-arrest and post-arrest silence. See United States v. Burson, 952 F.2d 1196,

1200-01 (10th Cir. 1991) (holding pre-arrest silence inadmissible as evidence of

                                          -4-
guilt); Earnest v. Dorsey, 87 F.3d 1123, 1135 (10th Cir. 1996) (observing that

“the government may not attempt to use [post-arrest silence] as substantive

evidence of guilt”).

      Even if we assume the district court committed plain error by admitting

testimony of M r. Espinoza-M endoza’s refusal to discuss his immigration status

and allowing the prosecutor’s closing references to the same, his claim fails

because he cannot satisfy the third prong of the plain error test. To satisfy this

prong “the error must have affected the outcome of the district court

proceedings.” United States v. Cotton, 535 U.S. 625, 632 (2002) (quotation

marks omitted). Two points convince us that the purported error did not effect

the outcome here. First, Espinoza-M endoza’s uncooperativeness when initially

questioned about his alien status is not relevant to his ultimate charge, possessing

the illegal documents. The district court made this clear, instructing the jury “not

to infer anything from Agent Franco’s testimony regarding [M r. Espinoza-

M endoza]’s citizenship. [He] is not charged with illegally being in the United

States of America.” R., Vol. 3 at 96. Second, uncontroverted evidence indicates

M r. Espinoza-M endoza knowingly possessed the RRCs and knew they were fake.

Agent Franco showed M r. Espinoza-M endoza the RRCs at the booking station, he

admitted they were fake, 3 and said he was delivering them for Carlos, who had

3
       M r. Espinoza-M endoza acknowledged the documents w ere inauthentic only
after Agent Franco showed him the cards. He suggests this statement merely
                                                                  (continued...)

                                          -5-
made them. M oreover, M r. Ruiz testified he overheard M r. Espinoza-M endoza

tell Carlos to put “it,” presumably the envelope carrying the RRCs, in his wallet

in the car, where they were ultimately found by Agent Franco. In light of this

overwhelming evidence, we are not persuaded the jury would have returned a

different verdict in the absence of the disputed testimony and closing remarks.

      M r. Espinoza-M endoza also claims that his counsel was ineffective for not

objecting at trial to the use of his silence. Given our conclusion that

M r. Espinoza-M endoza was not prejudiced by this omission, his ineffective

assistance claim is meritless. See, e.g., United States v. Smith, 10 F.3d 724, 728

(10th Cir. 1993) (finding the record sufficiently developed to resolve appellant’s

claim of ineffective assistance of counsel on direct appeal).

      Finally, the testimony of Agent Franco and M r. Ruiz cited above dooms



3
 (...continued)
relayed his present sense observation of the cards–that the documents were
facially fake–and that his declaration therefore did not demonstrate he knew he
possessed fake documents when Carlos put the envelope in his wallet. See Aplt.
Br. at 24 (“The government never offered a scintilla of evidence that tended to
demonstrate that the Defendant knew that the envelope contained fraudulent
immigration cards.”). But the agent testified she showed the cards to
M r. Espinoza-M endoza in a bunch, and that she knew they were fake because the
color and typeface were off, the thumbprints were the same on each card, and the
photographs were taken with the subject’s head at the wrong angle. R., Vol. 3 at
108, 115-16. These are not major flaws that, when shown “altogether,” id. at 108,
would be at all obvious to an illegal alien who doesn’t posses his own legitimate
documents. Espinoza-M endoza’s statement that the documents were fake can
certainly be seen as evidence of his prior knowledge that the cards were
inauthentic and not simply as relaying his impression of the documents as show n
to him while in custody.

                                         -6-
M r. Espinoza-M endoza’s sufficiency of the evidence claim. 4 See United States v.

Lauder, 409 F.3d 1254, 1258-59 (10th Cir. 2005) (“W e review the evidence in

the light most favorable to the government to determine w hether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.” (quotation marks omitted)).

      Accordingly, we AFFIRM .

                                                   Entered for the Court


                                                   Stephanie K. Seymour
                                                   Circuit Judge




4
      Contrary to the government’s assertion, M r. Espinoza-M endoza did
preserve his evidence-sufficiency argument for de novo review on appeal by
moving for acquittal at the close of the government’s case and again after the
close of all the evidence, R., Vol. 3 at 170, 189, 191. See United States v.
Radcliff, 331 F.3d 1153, 1157 & n.1 (10th Cir. 2003); Fed. R. Crim. P. 29(a).

                                        -7-
