OpenJurist

539 F2d 417 United States v. Luna

539 F.2d 417

UNITED STATES of America, Plaintiff-Appellee,
v.
Augustin Gomez LUNA, Defendant-Appellant.

No. 76-2326

Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.

Sept. 22, 1976.

Roland E. Dahlin, II, Federal Public Defender, Karen K. Friedman, Asst. Federal Public Defender, Houston, Tex., Juan E. Gavito, Asst. Federal Public Defender, Brownsville, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., James R. Gough, George A. Kelt, Jr., John Patrick Smith, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

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

Before DYER, CLARK and HILL, Circuit Judges.

PER CURIAM:

1

Augustin Gomez Luna was convicted by a jury of possession with intent to distribute approximately 304 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1), and he appeals.

2

In the course of his closing argument, the prosecuting attorney stated,

3

"Did we ever hear any statements that the defendant made as to this is not my stuff, I'm looking for my friends? You guys have the wrong man, when he was arrested? Think about it."1

4

In Doyle v. Ohio, 1976, --- U.S. ----, 96 S.Ct. 2240, 49 L.Ed.2d 91, the Supreme Court forbade usage of a defendant's silence following arrest and Miranda warnings to impeach an explanation subsequently given at the trial. In United States v. Harp, 536 F.2d 601 (5th Cir. 1976), we applied Doyle to use of silence in an impeaching fashion during the course of the government's closing argument. Accordingly, Luna's conviction must be reversed and a new trial held.

5

REVERSED AND REMANDED.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I

1

The prosecutor's comment referred to Luna's silence after he had been arrested and warned as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)