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539 F.2d 417

Docket No. 76-2326

United States v. Luna

Fifth Circuit Court of Appeals

Decided Sept. 22, 1976.

Fifth Circuit Court of Appeals · decided 1976-09-22

2 counsel of record

Applies 21 U.S.C. § 841 (§ 401 of the Controlled Substances Act)

Relies on Miranda v. State of Arizona Vignera · Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York · Doyle v. Ohio

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1976-09-22

How this case has been cited

Cited by 24 later decisions — most recently August 1992

19 federal appellate · 1 district · 2 state decisions

130197619801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Summary Calendar.*

¶2Roland 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.

¶3Edward 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.

¶4Before DYER, CLARK and HILL, Circuit Judges.

¶6PER CURIAM:

¶7Augustin 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.

¶8In the course of his closing argument, the prosecuting attorney stated,

¶9“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

¶10In 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.

¶11REVERSED AND REMANDED.

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