UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 4, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
ADAM GRANT GUNDERSON, DEFENDANT.
The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is Defendant's motion to vacate judgment and grant new trial. (Doc. # 48).
On June 21, 2008, at approximately 4:45 p.m., Defendant approached the primary inspection area at the Interstate 8 Border Patrol Checkpoint in Pine Valley, California. Defendant was the driver and sole visible occupant of a 1993 Mercedes Benz. As Defendant approached primary inspection, Border Patrol Agent Juan Carlos Sarantes noticed that the rear of the vehicle appeared riding low.
Defendant came to a stop at primary inspection and continued to talk on his cell phone. Agent Sarantes asked Defendant to state his citizenship. Defendant continued to talk on his cell phone and did not respond to Agent Sarantes. Agent Sarantes asked again and Defendant stated that he was a citizen of the United States. Agent Sarantes asked if he could search the trunk of the vehicle and Defendant responded yes but told Agent Sarantes that the trunk was not working. Agent Sarantes asked what was wrong with the trunk and Defendant responded "I don't know." (Transcript at 89). Agent Sarantes asked if he could open the trunk and Defendant responded "Go ahead, if you can." Id.
Agent Sarantes pressed on the handle of the trunk and opened the trunk. Agent Sarantes observed two individuals in the trunk. Agent Sarantes asked the two individuals inside the trunk if they were illegal aliens and one of them responded that he was. Agent Sarantes closed the trunk, returned to the Defendant, and asked "who are the people in the trunk?" (Doc. 27 at 2). Defendant responded "I don't know." (Doc. # 31at 3). Agent Sarantes instructed the Defendant to exit the vehicle. The vehicle was taken to secondary. Defendant was arrested.
At approximately 10:15 p.m., Defendant was advised of his Miranda rights and invoked his right to remain silent.
On July 16, 2008, a federal grand jury in the Southern District of California returned an indictment charging Defendant with two counts of transporting and moving an illegal alien within the United States in violation of Title 8, United States Code, Sections 1324(a)(1)(A)(ii).
On July 17, 2008, Defendant was arraigned on the Indictment and entered a plea of not guilty.
Prior to trial, Defendant moved to suppress any statement made to Agent Sarantes after the agent "found undocumented aliens hidden in trunk." (Doc. # 27 at 2). The Government stated in response "[i]n its case-in-chief, the Government does not intend to use statements made by Defendant after Agent Sarantes discovered the aliens in the trunk." (Doc. # 30 at 3).
On October 14, 2008, the Court held a motion in limine hearing at which Government counsel confirmed that the Government did not intend to use any statement made by the Defendant after the agent had opened up the trunk and discovered people in the trunk of the vehicle. Government counsel stated that the Government would seek to use Defendant's statement "if the Defendant were to take the stand." The Court asked Defense Counsel for her position in that regard. Defense counsel stated:
Counsel for Defendant: I think for impeachment, it's admissible. My motion was on Miranda grounds, so.
The Court: Is it fair to say the, your motion only dealt with whether Miranda was complied with?
Counsel for Defendant: Correct.
The Court: And not voluntariness? So your issue is Miranda.
The Government didn't comply with Miranda, so they can't use it in their case-in-chief. But your motion does not address the issue of whether they could use it for cross-examination or in rebuttal?
Counsel for Defendant: That's right, your Honor.
The Court: All right. And so there is no opposition from the Government that the motion be granted with respect to the motion being suppressed in the government's case in chief, so I will grant that only with respect to the government's case in chief.
(Transcript pages 19-20).
Trial commenced on October 15, 2008. During its case-in-chief, the Government presented the testimony of Agent Sarantes, Agent Munoz, and the two material witnesses. The Government did not present any evidence about Defendant's statements or demeanor after Agent Sarantes found the individuals in the trunk.
After the Government rested, Defendant took the witness stand. On direct examination, Defense counsel asked the Defendant when he first learned that there were people in the trunk of his car. Defendant testified as follows:
Counsel for Defendant: After [Agent Sarantes] looked in the trunk, what did he do? . . .
Defendant: He opened it and then just as quick as he opened it, he closed again and stepped back to the window.
Counsel for Defendant: Did he come back to talk to you?
Defendant: Yes, he did.
Counsel for Defendant: At that point, did he place you under arrest?
Defendant: He asked me to step out of the car. I asked him why. He said, step out of the car, please. And so I stepped out. Counsel for Defendant: When you were at the checkpoint, did you know that there were people in the trunk
Defendant: No ...
Counsel for Defendant: When did you first learn there were people in the trunk of the car?
Defendant: When I had stepped out of the car, he had done this motion (gesturing) for another Border Patrol agent to come over.
And then he actually got in the car and he is the one who drove it to the secondary inspection, which you saw in the pictures. .... But they motioned to the car, open the trunk, open the trunk, something to that effect. When they opened the trunk, you could see sticking up like this (gesturing) in the trunk. You could tell there was something kind of crunched up in the trunk.
Counsel for Defendant: What did you think when you saw those men? Defendant: I was pretty much in disbelief. Didn't believe that was the car I was driving. I was - I didn't know what - the person didn't make any effort to get out of the - to get out of the trunk, wasn't moving. I honestly did not know what to think.
Counsel for Defendant: No further questions. Thank you. (Transcript pages 205-207).
On cross-examination, Government counsel questioned the Defendant in part as follows:
Counsel for Government: You mentioned that after Agent Sarantes opened the trunk, he came back to you, right?
Counsel for Government: He actually asked you a question when he came back to you; isn't that right?
Defendant: He asked me to step out of the car, yes.
Counsel for Government: Didn't he ask you, who are those people in the trunk of the vehicle?
Defendant: No, at that time, he just asked me to step out of the car. Counsel for Government: And - well, he didn't ask you, who are those people in the trunk of the vehicle, and your response was, I don't know. Defendant: That was when we were actually inside of the building. Counsel for Government: And what he told you that there were two people inside the trunk, your answer simply was, I don't know, right? Defendant: Yeah, I believe so. I had actually -Counsel for Government: With a - I'm sorry - with a straight face, right?
Counsel for Defendant: Objection, your Honor. Argumentative.
The Court: Overruled.
Counsel for Government: Were you surprised that there were two people -Defendant: Yeah.
Counsel for Government: -in the trunk of the vehicle?
Defendant: Yes, yes, I was very surprised.
Counsel for Government: But you simply said, I don't know?
Defendant: I believe he asked -Counsel for Defendant: Your Honor, can we have a sidebar, please? (Transcript page 238-239).
Defense counsel asked the Court to strike the question by Government counsel "But you simply said, I don't know?" on the grounds that it "makes a subtle suggestion that he should have said something more."*fn1 (Transcript at 240). The Court obtained the transcript, reviewed the questions asked and answers given with counsel, and instructed the jury to disregard all of the questions and answers stated above. The Court read back the questions and answers stated above to the jury, specifically instructed the jury that these questions and answers were stricken from the record, and instructed the jury that they could not consider them or draw any inferences from them. (Transcript pages 249-250). The Court further instructed Government counsel not to argue any statement made by the Defendant after Agent Sarantes opened the trunk of the car in closing argument. Government counsel proceeded with cross-examination without any reference to Defendant's silence or any statement made by the Defendant after Agent Sarantes opened the trunk of the car in closing argument.
At the close of the evidence the Court instructed the jury, including an instruction that they must not consider any testimony that was excluded or stricken, and testimony that they have been instructed to disregard. (Transcript page 276).
During closing argument and rebuttal argument, the Government did not make any reference to the stricken testimony or to any statement made by the Defendant after Agent Sarantes opened the trunk of the car.
On October 16, 2008 at 2:17 p.m., the jury began deliberating. Approximately one hour later, the jury sent out a note which stated "What exactly was thrown out that we should not consider?" (Court Exhibit 1). The Court convened the parties and read to the jury the following answer agreed to by the Government and the Defendant:
The Court struck the testimony elicited during Mr. Gunderson's cross-examination. The Court struck Ms. Caldito's questions that related to any statement made by Mr. Gunderson after Agent Sarantes opened the trunk. You are to disregard all of the testimony related to any questions and answers that occurred after Agent Sarantes opened the trunk. And then, I also remind you that in the instructions, that you have received, jury instructions, jury instruction number 6, paragraph 3, the first line says, testimony that has been excluded or stricken or that you have been instructed to disregard is not evidence and must not be considered.
(Transcript page 329-330). The jury returned to deliberate at 4:41 p.m. At 4:57p.m., the jury returned a verdict of guilty on both counts of the indictment.
CONTENTIONS OF PARTIES
Defendant contends that the question by Government counsel "But you simply said, I don't know?" on cross-examination constituted a comment on silence in violation of his Fifth Amendment protection against self-incrimination. Defendant contends that after Agent Sarantes opened the trunk he was not free to leave and that Agent Sarantes' question "Who are the people in the trunk?" improperly confronted him with respect to guilt. Defendant asserts that the Government's cross-examination violated his right to remain silent suggesting that if he were telling the truth in court, he would have said something more to the question asked by Agent Sarantes after he opened the trunk. Defendant asserts that the jury in this case remained confused about what evidence they were not to consider and that the confusion lasted throughout the trial. Defendant asserts that his credibility was critical to his defense and that he was prejudiced by the in violation of his Fifth Amendment protection against self-incrimination.
The Government asserts that the question was proper cross examination. The Government asserts that the Defendant took the stand and testified that he first learned that there were aliens in his vehicle when he saw them in the trunk in the secondary area and that the Defendant testified that he was surprised when he saw the aliens in the trunk of his vehicle. The Government asserts that the question was intended to point out the inconsistency between his testimony at trial and his pre-Miranda statements and demeanor. The Government asserts that there was no constitutional error in that the cross-examination was limited to a reference to a post-arrest, pre-Miranda silence; and no evidence of post arrest silence was ever submitted to the jury.
Rule 33(a) of the Federal Rules of Criminal Procedure states in part "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so require." The Fifth Amendment provides that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. Amend.V. "The warnings mandated by [Miranda are] a prophylactic means of safeguarding Fifth Amendment rights." Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240 (1976). This right to remain silent carries an "implicit assurance" that silence will carry no penalty. Id. at 617. "Doyle rests upon the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial." Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S.Ct. 634 (1986). (internal quotation omitted). "Absen[t] the sort of affirmative assurances embodied in the Miranda warnings, the Constitution does not prohibit use of a defendant's post arrest silence to impeach him at trial." Greer v. Miller, 483 U.S. 756, 763, 107 S.Ct. 3102 (1987). "The government may use a defendant's post-arrest, pre-Miranda silence for impeachment, but it may not do so 'in its case-in-chief.'" United States v. Hernandez, 476 F.3d 791, 796 (9th Cir. 2007) quoting United States v. Velarde-Gomez, 269 F.3d 1023, 1029, FN1 (9th Cir. 2001).
In this case, the Government's question on cross-examination "But you simply said I don't know" made reference to a post-arrest, pre-Miranda statement by the Defendant in an attempt to impeach his direct trial testimony that he was surprised when he learned that there were two individuals in the trunk of the car he was driving. Government counsel asked "were you surprised that there were two people in the trunk of the vehicle?" and Defendant responded "Yes, yes, I was very surprised." Government counsel then asked "But you simply said, I don't know?" Defense counsel asked for sidebar and raised an objection to this question. The Court contemporaneously sustained the objection and struck the line of questioning. The question asked by Government counsel and objected to by Defense counsel did referred to Defendant's post-arrest, pre-Miranda silence, and was not asked in the Government's case-in chief. The Court concludes that the question asked by Government counsel did not violate Defendant's Fifth Amendment protections against self-incrimination. See Velarde-Gomez, 269 F.3d at 1029, FN1.
To the extent that this question asked on cross-examination could be construed as an improper comment on Defendant's silence, the Government has proven that any error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967). "In the context of comments on silence, the Court of Appeals considers three factors: (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." United States v. Hernandez, 476 F.3d 791, 797 (9th Cir. 2007).
In this case, all of these factors support a finding of harmlessness. As to the first factor, the question objected to by Defense counsel was brief. The Court sustained the initial objection of the Defendant to the cross-examination and struck and the entire line of questioning. The jury was specifically informed of the questions and answers which they were not to consider at that time and instructed in the general jury instructions at the close of evidence that testimony that has been stricken is not evidence and must not be considered. When the jury asked for clarification, the Court clarified specifically with the agreement of the Defendant informing the jury not "to disregard all of the testimony related to any questions and answers that occurred after Agent Sarantes opened the trunk." (Transcript at 330).
As to the second factor, the Court sustained the objection of the Defendant to the question on cross-examination and Government counsel proceeded with cross-examination without making any reference to Defendant's silence or his statement to Agent Sarantes after the trunk was opened. Government counsel did not refer in any way to any statement or demeanor of the Defendant after Agent Sarantes opened the trunk of the car at any other point in the trial.
Finally, the extent of the evidence suggesting Defendant's guilt supports a finding of harmlessness. Defendant was the driver and sole occupant in a car with two individuals hiding in the trunk. Defendant lied to the agent at primary about the trunk being broken. There was no way for the material witnesses to get out of the trunk without the assistance of the Defendant and the smuggling profit would have been lost if the material witnesses had died in the trunk. The jury evaluated the evidence and returned a verdict of guilty on both counts without lengthy deliberations.
Taking all of these factors into consideration, the Court concludes that the limited reference at issue was not prejudicial to the Defendant and any error which may be inferred was harmless. IT IS HEREBY ORDERED that Defendant's motion to vacate judgment and grant new trial (Doc. # 48) is DENIED.
WILLIAM Q. HAYES United States District Judge