United States v. Cesar Gomez
2013 U.S. App. LEXIS 16229
| 9th Cir. | 2013Background
- Cesar Gomez was stopped at the U.S.–Mexico border as the lone occupant of a Toyota Camry; agents found 15 packages of methamphetamine hidden in the gas tank.
- After Miranda warnings, Gomez refused to speak, stating he could not talk because "my family ... will get killed." No further questioning occurred.
- Gomez was indicted for importation of methamphetamine (21 U.S.C. §§ 952, 960). He testified at trial that he did not know drugs were in the car.
- The district court suppressed the post-arrest statement for the government’s case-in-chief but allowed its use on rebuttal for impeachment.
- During rebuttal, Agent Fuentes testified that Gomez said he could not talk because his family would be killed; Gomez was convicted and sentenced to 135 months.
- On appeal Gomez challenged (1) admission of the post-arrest statement as a Doyle/Miranda violation, (2) expert testimony by Special Agent Banos (Rules 704(b), 403, and Confrontation Clause), and (3) a closing-argument "duty to convict" statement as prosecutorial misconduct.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Gomez) | Held |
|---|---|---|---|
| Admissibility of post‑Miranda explanatory refusal on rebuttal | Statement was voluntary and admissible as impeachment because it was a prior inconsistent statement (not mere silence) | Use of explanation for refusal violated Doyle/Miranda and Bushyhead; should be excluded entirely | Admissible on rebuttal as impeachment: voluntary and arguably inconsistent with trial testimony; Doyle does not bar impeachment with prior inconsistent statements |
| Expert testimony re: drug‑trafficking practices (Rule 704(b)) | Banos’ testimony was based on experience and gave an opinion, not an explicit opinion on Gomez’s mental state | Testimony impermissibly opined on defendant’s knowledge/state of mind (Rule 704(b)) | No Rule 704(b) violation: testimony framed as experience-based expert opinion, not an explicit legal/state-of-mind conclusion |
| Expert testimony (Rule 403) | Testimony was probative and district court conducted Rule 403 balancing | Testimony was unduly prejudicial/confusing | No abuse of discretion: probative value outweighed any prejudice and court considered Rule 403 factors |
| Confrontation Clause — expert reliance on interviewees’ statements | Expert applied training to sources and offered independent judgment, not a conduit for testimonial hearsay | Expert transmitted testimonial out-of-court statements in violation of Crawford | Even if two isolated questions arguably implicated Crawford, any error was not plain and was harmless given the limited, non-core nature of the testimony |
| Prosecutorial misconduct — urging jury it was their "duty" to convict | Closing properly tied "duty" to the jury’s obligation when convinced beyond a reasonable doubt; mirrored jury instruction | Unqualified "do your duty" comment coerced or misstated role, similar to Sanchez | No reversible error: statement, read in context, properly followed statement of burden and matched model jury instruction; not Sanchez‑level misconduct |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (Sup. Ct. 1966) (Miranda warnings and custodial interrogation protections)
- Doyle v. Ohio, 426 U.S. 610 (Sup. Ct. 1976) (post‑Miranda silence generally cannot be used to impeach or as substantive evidence)
- Oregon v. Elstad, 470 U.S. 298 (Sup. Ct. 1985) (voluntary statements obtained in violation of Miranda may be used for impeachment)
- Harris v. New York, 401 U.S. 222 (Sup. Ct. 1971) (statements inadmissible in case‑in‑chief may be used for impeachment if trustworthy)
- Wainwright v. Greenfield, 474 U.S. 284 (Sup. Ct. 1986) (fairness concerns when promise of nonuse of silence is breached)
- United States v. Bushyhead, 270 F.3d 905 (9th Cir. 2001) (addressed use of explanatory refusals and Doyle principles)
- Crawford v. Washington, 541 U.S. 36 (Sup. Ct. 2004) (Confrontation Clause bars testimonial out‑of‑court statements absent cross‑examination)
- United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999) (prosecutor’s unqualified "do your duty" instruction can be improper)