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535 F2d 286 United States v. Impson

535 F.2d 286

UNITED STATES of America, Plaintiff-Appellee,
v.
James Bobby IMPSON, Defendant-Appellant.

No. 74-1683.

United States Court of Appeals,
Fifth Circuit.

July 14, 1976.

Melvyn Carson Bruder, Dallas, Tex., for defendant-appellant.

Frank D. McCown, U. S. Atty., John W. Sweeney, Jr., Asst. U. S. Atty., Ft. Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

ON PETITION FOR REHEARING

(Opinion 5-10-76, 5 Cir., 1976, 531 F.2d 274)

Before THORNBERRY, SIMPSON and MORGAN, Circuit Judges.

PER CURIAM:

1

Having been specifically directed by the Supreme Court1 to reconsider this appeal in the light of Hale2 we decline the invitation of the appellee United States3 to hold that because this cause was tried prior to the decision in Hale, we should deny retroactive application of Hale to Impson's case. We are urged that United States v. Ramirez, 5 Cir. 1971,441 F.2d 950, cert. denied 1971, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113, and its progeny clearly stated the governing law in this Circuit at all times prior to the decision in Hale.

2

While, as pointed out by the petition, neither Hale nor our decision, United States v. Impson, 5 Cir. 1976, 531 F.2d 274, were decided on constitutional grounds,4 nevertheless the basis for each decision was prejudice to the rights of the defendant on trial engendered by bringing to a trial jury's attention the silence of the defendant on trial in the face of post-arrest police interrogation. We adhere to our decision that, under the circumstances present, reference to James Bobby Impson's silence carried with it an intolerably prejudicial impact, 531 F.2d 274 at 279, paraphrasing Hale, supra, 422 U.S. 171 at 179, 95 S.Ct. 2133 at 2138, 45 L.Ed.2d 99 at 107.

3

The petition for rehearing in the above entitled and numbered cause is ordered DENIED.

1

Impson v. United States, 1975, 422 U.S. 1031, 95 S.Ct. 2647, 45 L.Ed.2d 688

2

United States v. Hale, 1975, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99

3

A point raised for the first time in the government's petition for rehearing

4

Since our decision in this case, United States v. Impson, 5 Cir. 1976, 531 F.2d 274, the Supreme Court has now determined in a state habeas corpus setting that the Fourteenth Amendment Due Process Clause forbids the use by the prosecution for impeachment purposes of testimony as to the accused's silence at the time of arrest and after receipt of Miranda warnings. See Doyle v. Ohio, 44 U.S.Law Week 4902, --- U.S. ----, 96 S.Ct. 2240, 48 L.Ed.2d ----, decided June 17, 1976