United States v. Habib Georges Makhlouta
790 F.2d 1400
9th Cir.
1986
Check Treatment

*1 typed above advisor. Whatever really important to me at

name was that we’re into all of these

that time. Now

problems, suppose what’s above some- closely, at more

one’s I will look name time, mind, you put as my

at that state

it, working my behalf Pappas Mr. my my at all times as attor- behalf accountant, advis-

ney, my financial (Namesnik 64). Deposition

or” Pappas

The fact that was at all times represented

pertinent attorney who had respon and the Whitlows is not

Namesnik evidence which

sive to the uneontroverted

establishes that as to the transactions Pappas

question, acted business attorney. Namesnik’s

rather than conclusory allegations which re

Whitlows’ pleadings

iterate assertions fail to genuine requir issues of material fact

raise

ing Angel Nation trial. Seattle-First 1293, 1299(9th Cir.1981). Bank,

al

AFFIRMED. America,

UNITED STATES

Plaintiff-Appellee, MAKHLOUTA, Georges

Habib

Defendant-Appellant.

No. 85-5065. Appeals,

United States Court of

Ninth Circuit.

Argued and Submitted Jan. 1986.

Decided June *2 Stergis, Atty.,

Barbara C. Asst. Los Cal., Angeles, plaintiff-appellee. Gunn, Deputy F. Carlton Federal Public Cal., Defender, Angeles, Los for defendant- appellant. WALLACE, FARRIS,

Before and NOR- RIS, Judges. Circuit WALLACE, Judge: Circuit appeals Makhlouta his conviction on two possession counts of with intent distrib- ute a controlled substance and two counts substance, of distribution of a controlled all 841(a)(1). in violation of 21 Ma- U.S.C. § argues khlouta erred district court admitting testimony, allowing by certain testimony on redirect examination that ex- cross-examination, the scope ceeded of the by permitting prosecutori- instances of two argument, closing misconduct in al refusing give requested jury instruc- jurisdiction tions. We have under 28 U.S.C. and we affirm. § September In Makhlouta was ar- delivering approximately rested after grams of heroin to undercover Bu- Federal (FBI) agents Miller Investigation reau of Dunbar. an inves- The arrest followed tigation that extended had over several previously deliv- months. Makhlouta a lesser quantity ered cocaine Miller. counts, did

At trial on four Makhlouta deny and distribution Instead, heroin cocaine. asserted a evidence: Khawan himself testified in de defense of Makhlouta was tail that he contacted Miller after Makhlou convicted on all four counts. ta and an associate told Khawan looking buyer large quanti for a

II addition, ties of ample cocaine. other argues supported that the district jury’s evidence conclusion *3 judge improperly hearsay admitted testimo predisposed Makhlouta was to commit ny permitted testify, when he Miller to over charged. the offenses United States v. Cf. objection, that he first met Makhlouta after 1037, (9th Cowley, Cir.1983) 720 F.2d 1045 informant, Khawan, (error an told Miller that Ma in admitting evidence harmless looking khlouta and an associate were for a ample supports where other jury’s evidence buyer large quantities of cocaine. The conclusion), denied, 1029,104 cert. 465 U.S. correctly judge district determined that 1290, (1984); S.Ct. 79 L.Ed.2d 692 United hearsay Khawan’s statement was not be 147, (9th Rangel, States v. 534 F.2d 149 prove cause it was offered not to the truth Cir.) (same), denied, 429 U.S. 97 of the matter asserted but rather to show S.Ct. 50 L.Ed.2d 129 began Miller’s state of mind when he inves tigating Makhlouta. See Fed.R.Evid. Ill 801(c); McCormick’s Handbook the Law argues Makhlouta next that the district (3d 1984). Evidence 733-34 ed. § by court erred permitting testimony on re- follow, however, It does not that the direct scope examination that exceeded the testimony properly admissible to show of the apply cross-examination. We Miller’s state Only of mind. evidence that abuse of discretion in reviewing standard is relevant is admissible. Fed.R.Evid. 402. district regarding per- court’s decision

The evidently district court acted on the scope questioning. missible United assumption that Miller’s state of mind was Palmer, States v. 536 F.2d 1282-83 relevant to Makhlouta’s asserted defense (9th Cir.1976). But under the law of en trapment, “it is not the state of mind On cross-examination FBI of the Dunbar, government agent important; that is Makhlouta’s counsel elicited testi ... ‘predisposition mony is the suggest of the Miller and Dunbar had defendant’ to possible public commit the offense ed to Makhlouta ... that counts.” several lo McClain, cations for planned United States v. the heroin transaction F.2d (9th Cir.), following day. As Makhlouta points out, S.Ct. this testimony arguably sup quoting ported Russell, 423, 427, the defense of by sug 1637, 1640, (1973); gesting degree by of control L.Ed.2d 366 exercised So, agents. see the FBI United States v. 755 F.2d To rebut such an infer (9th ence, Cir.1985). Therefore, government on redirect examina Miller’s why tion asked Dunbar concerning Khawan's Makhlouta and the agents had spe was irrelevant. not instead discussed one cific location for the transaction. Dunbar Although not raised as an ap issue on responded extremely that it would be dan peal, objection an interposed during gerous designate specific advance by grounds. trial Makhlouta relevancy agents location where the would have a now, however, if Even we consider it we money. substantial amount of difficulty finding would have no probably error was more than not harm The district court did not abuse its discre- 52(a); less. permitting See Fed.R.Crim.P. Burgess v. tion this redirect examination. (9th Corp., Premier comfortably scope Cir. It fell within 1984). cross-examination, The explored essential elements of the testi which had mony were properly elsewhere admitted in Makhlouta and the discussion between agents regarding government the location in closing argument to com- planned transaction. The redirect partial examina- ment on Makhlouta’s silence follow- relevant, tion was also since it bore on the ing arrest warnings. Ma- degree by agents. of control exercised objection khlouta concedes that no to this

comment was made at trial. We therefore IV review the conduct for error. Lopez, United States v. argues Makhlouta also that the dis Cir.1978). 684-85 trict court committed reversible error permitting improper inflammatory government questioned Dunbar comment in the rebuttal about his interrogation of Ma- stage closing argument. Responding to khlouta: by references counsel to Makhlou Q What did the say? family, ta’s stated: “Now *4 A He advised that the substance he had portray has to the defense tried the defend given Special Agent Miller and family ant as a man. What kind of a myself in day earlier he knew in family stays night? man all out What kind fact was heroin. He knew it was family gives samples man out heroin wrong; a doing violation be this. family kind of what man sells heroin that However, he anticipate didn’t he inject?” objected kids get caught. would He wouldn’t say reference “heroin that kids inject.” We gotten where he had the heroin from review the per district court’s decision to earlier in day, and basically mit this comment under the abuse dis that’s— Patel, cretion standard. United States v. Later, employed this con- 784, (9th Cir.1985) (Patel); 762 F.2d 794 fession in cross-examining Makhlouta with Guess, 1286, United States v. 745 F.2d respect — to his defense entrapment: (9th Cir.1984), denied, 1288 cert. U.S. -, Q your And (1985). you 105 S.Ct. 84 L.Ed.2d in say 360 confession didn’t you pressured sale, felt to do this did agree government’s We that com you? ment was response an ill-chosen to the de No, [agent A did force me. argument. Miller] fense record, Our review of the however, single satisfies us that this refer Q your Is it [agent that Mil- ence, “in the circumstances trial as a you forced to do the on sale ler] whole, prejudicial so [was not] 22nd? [it] likely jury influenced the adversely A Yes. deprived defendant and the defendant of a Q you And say your didn’t that in con- Patel, trial.” fair 762 F.2d at 795. There fession, you? did fore, the district court not did commit re A you What do I mean? don’t under- error in allowing versible the comment. stand. Perez, 491 F.2d v. Cf. Q you gave When your confession to (9th Cir.) (prosecutor’s argument Agent Dunbar, you say any- didn’t jury “[y]ou imagine can the quantity thing being pressured about to make of heroin in this involved case that is taken sale, you? did out the hands of little children A paper He left for ame and I was so agents” town the work of these narcotic nervous, extremely my error), mind was did not constitute reversible just my not—I had to shake denied, head and say yeah, yeah, yeah. L.Ed.2d 92 Then, closing argument, prosecutor V emphasized between Ma- Makhlouta further post-arrest contends that khlouta’s his en- statements and permitted the district improperly trapment court reciting defense at trial. After pre- 911, that Makhlouta was L.Ed.2d 174 evidence extensive activity, Hall, quoting criminal 641 F.2d Grieco disposed to commit stated, (1st Cir.1981)(Grieco); all “And accord Hock [this Sowders, (6th enbury with his confession 718 F.2d is consistent evidence] Cir.1983), said, wrong ‘I knew was he when ” (1984); caught.’ Further in S.Ct. get I’d didn’t think Schultz, demonstrating Makhlouta’s States the context Cir.1983).1 government, provide stated: all predisposition, the bearing credibility, relevant evidence on right Finally, case—or remember “may probe all statements and defendant confessed arrest the after the surrounding under circumstances say he not did and in that confession made, including which defend say He he up. set did he been provide ant’s failure to critical details.” it. didn’t forced do He felt he’d been Ochoa-Sanchez, 676 F.2d at 1286. fear, say done it out of didn’t he’d drinking problem. blame it statements meet on the stand the defendant And fact being requirement said, got “Well, I into this because I arguably inconsistent with the money kids on TV.” wanted entrapment asserted at trial. Makhlouta’s statements address the a defendant has When maintained hewhy matter of sold heroin. These state warnings, silence after *5 neglect suggest do more to ments than per process of due do not the constraints entrapment. They defense of in fact offer use prosecutor to this silence to mit the single explanation of criminal his activi exculpatory story told for the impeach an heroin, though ty he sold even Ohio, v. —that time at trial. 426 U.S. first illegal, it an knew was because “he didn’t 610, 618, 2240, 2245, 96 49 L.Ed.2d 91 S.Ct. get caught” ar ticipate he would is (1976) —that (Doyle). Where the defendant has guably inconsistent with the voluntarily spoken after it defense since is evidence of a criminal however, warnings, Doyle does not bar predisposition. Rey See United States merely inquires “cross-examination that (9th noso-Ulloa, 548 F.2d 1336 Cir. prior statements.... As into 1977)(lack commit crime is of reluctance to statements, his to the matter of predisposition), criminal evidence of remained silent at all.” defendant has not denied, U.S. 404, 408, Charles, Anderson U.S. (1978); (defense of id. at 1338 L.Ed.2d (1980) S.Ct. entrapment “is unavailable to a defendant curiam) (Charles). (per As our court has who, greed and unconcerned by motivated interpreted once a defendant “ law, breaking accepts a readily about ‘may statements makes opportunity commit an off propitious arguably be inconsistent with trial sto ” ense”).2 ry,’ question credibility. he has raised Ochoa-Sanchez, Ochoa-Sanchez, 676 F.2d Under Cir.) added) (emphasis probe arguable inconsistency could “ (Ochoa-Sanchez), ‘inquiring] what was not said at adoption dissenting). We that our therefore conclude 1. The dissent claims that our court’s in arguable adoption in- standard of standard in Ochoa-Sanchez consistency holding unnecessary inconsistency necessary “was our arguable inconsistency the defend- because the between holding. Dissenting op. ant’s stories was clear.” at 1408n. Ochoa-Sanchez, however, 3. Nowhere in do we that, suggestion contrary plain It thus clear, inconsistency state that the nor dissent, dissenting op. in the see we do not Indeed, evident that such was the case. rely on an between Makhlouta’s dissenting judge expressly in Ochoa-Sanchez entrap- silence and assertion of the inconsistency. stated that Ochoa-Sanchez, there was no clear ment defense at trial. J., (Fletcher, at 1290 676 F.2d ” 676 F.2d at quoting merely predisposition arrest.’ to aid others in Grieco, 641 inquiry entering 1034. Such into narcotics transactions but did run of Doyle, does not afoul since it is “not not predisposition himself have the pos- silence, designed meaning to draw from or sess distribute narcotics. The court did explanation prior give elicit for a this instruction. inconsistent statement.” The district court’s regarding actions Viewing at 2182. provide these instructions fail to a basis for government’s cross-examination clos- reversal. The paragraph illustrative in the context,3 ing in argument we conclude that first instruction clearly superfluous. properly designed explore the Moreover, paragraph’s use of Makhlou- arguable inconsistency between Makhlou- examples ta’s counts as could have con- ta’s statements and his defense jury. fused the The theory of the second Accordingly, we see no instruction was adequately covered error the district court’s failure to general court’s entrapment, instruction on government’s exclude comment in clos- specifically provided which that predisposi- ing argument concerning this inconsisten- tion “to commit crimes such as are cy. charged” proven beyond to be a rea- sonable doubt. VI AFFIRMED. Finally, argues refusing district court give erred two NORRIS, Judge, dissenting: Circuit proposed jury on the instructions issue of dissent. The allusion to entrapment. A defendant is to a entitled inject” “heroin that kids redirect jury theory instruction on “his of the case testimony Agent Dunbar about the dan- supported by if it is law and some has gers drug dealing of undercover were both foundation the evidence.” United addition, patently prejudicial. the dis- Echeverry, *6 plainly trict court erred in permitting the (9th Cir.1985) (Echeverry). The district government exploit to Makhlouta’s silence court, however, may a in proposed refuse subject entrapment on the following his long given, so as the struction instructions warnings. Miranda whole, theory. as a viewed cover that 1323, States Kenny, United v. F.2d (9th Cir.), 920, 452 U.S. (1981). 69 L.Ed.2d We prosecu The characterizes review the district court’s formulation of tor’s reference to inject” “heroin that kids instructions for an abuse of discretion. response “an as ill-chosen defense

Echeverry, 759 F.2d at 1455. argument.” Majority Opinion at 1403.

As acknowledges, puts charitably. Makhlouta the That While the United gave entrapment general Attorney blows, court instruc “may States strike hard requested. pro tion that he not liberty is to strike foul ones.” Ber States, posed 78, 88, ger two other instructions. The first U.S. entrapment stated that must S.Ct. 79 L.Ed. 1314 Here separately be count considered as each struck a foul blow. Her provided paragraph. inject” an illustrative that reference to “heroin kids was gave The obviously designed jurors’ court the instruction but declined inflame give appeal accompanying passions, illustration. The not to their sense of rea proposed deciding second instruction stated Ma the only that son and fairness in dis puted khlouta could not be convicted if he had issue trial — whether Makhlouta Charles, closing argu- (artificially parsing prosecutor’s 3. See 447 U.S. at 100 S.Ct. at 2182 (prosecutor’s questions artificially ment). should not be parsed); dissenting op. but see at 1408-1409 selling to The the risk that testimony heroin created entrapped was Gershman, jury’s B. of the evidence relevant agents. See assessment (1985) 10-19 entrapment Misconduct would be colored fear Prosecutorial dealer, ways Makhlouta, to influ- (“One pernicious drug most a was parents appeal to them as jurors ence prone to violence. children, suggesting if young might acquitted those children II victims.”).1 his next be ¶. Ohio, view, In the rule of testimony that Similarly, Agent Dunbar’s 426 U.S. 96 S.Ct. L.Ed.2d fraught are with narcotics transactions (1976) prohib the Due Process clause — that danger prejudicial. irrelevant and was both impeachment its on the basis a defend cross-examination, Agent Dunbar was On following warn ant’s silence whether, counsel on the by defense asked ings prosecution use of Makhlouta’s — bars transaction, Makhlouta and day before the entrap post-arrest silence on agreed a agents had on site undercover majority’s upon ment. The reliance Ander money heroin. exchange of for the 100 S.Ct. son v. that no site was Agent Dunbar answered (1980) curiam), (per 65 L.Ed.2d 222 Reporter’s Tran- at that time. mentioned Ochoa-Sanchez, 676 and United States redirect, script (R.T.) at 172. On Dunbar (9th Cir.), denied, 459 asked, objec- defense counsel’s over (1982),is tion, agreement no on a why there was misplaced. Both Anderson v. Charles go deal day before the was to location defendant’s tri held that a it would have He answered down. impeached could refer al be dangerous agents if others been prior ence to inconsistent statements vol money large sum of knew in advance that the time of arrest. Those unteered changing particular at a be hands would clearly distinguishable because cases are R.T. at 172A. location. post-arrest silence the sub point of the cross-examination does not constitute ject Agent was to establish that Dunbar with his prior that is inconsistent Makhlouta, in control of agents, testimony. trial transaction, a fact relevant the heroin Charles, an incrimina- Anderson redirect entrapment defense. Dunbar’s against who ting piece of evidence dealing dangers drug testimony on the murder, on trial for to the issue of who con- was irrelevant of his arrest. of the victim’s car at the time may It have ex-

trolled the transaction. he that had stolen Charles testified at trial why control plained agents the wanted to parking part in another from a lot the car location, point it the did not refute the held that Supreme Court of town. The agents in that the fact controlled the trans- on the basis impeached be Charles could short, dangers In the of undercov- action. that contradictory post-arrest statement his dealing germane to drug are not the er corner. from a street he stolen the car had agents Ma- entrapped the issue whether does not “Doyle that The Court reasoned selling prej- into them heroin. The khlouta in- merely that apply to cross-examination testimony is udicial effect of Dunbar’s obvi- statements” ous, quires prior inconsistent especially light the uncontradict- “no unfair prosecutor made and that the possessed her- ed evidence that Makhlouta silence, who agents. because a defendant trying sell it to use oin and was the Perez, inject” in the that kids tor’s reference "heroin error, Cir.), it the level of instant case rises to error, contrary. given not the In prejudicial L.Ed.2d 92 that surely constitutes case, prose object to defendant did not the predisposition commit the crime Makhlouta’s concerning selling of the cutorial comments drugs hotly issue at trial. contested was the most prosecu not to minors. Whether or

14Q7 voluntarily speaks get after that he did expect caught. not A warnings has not induced to person may by government been remain be induced agents As subject silent. matter of his to commit a crime and think at the statements, has not get defendant re- same time that he away can with it. Indeed, silent mained at all.” 447 U.S. at strange would be if someone at 2182. The observed S.Ct. Court could be committing induced into a crime thinking cross-examination of while caught.2 Charles he would be In sum, designed meaning “not was to draw from it makes say no sense to that Ma- silence, explanation but to elicit an for a khlouta’s silence on subject prior inconsistent of entrapment statement.” Id. at is inconsistent with his de- entrapment. 100 S.Ct. at 2182. fense of Charles, sharp In contrast to The instant distinguished case cannot be impeached post-ar- on of his from Doyle any principled the basis on basis. entrapment. silence on subject Doyle, rest defendants claimed Charles person” While volunteered been framed a “street who had on subject help police volunteered to drug catch car, the murder pushers. 611-13, victim’s Makhlouta re- 426 U.S. at 96 S.Ct. at mained silent on the prosecutor argued 2241-42. The that this Doyle, Thus not controls defense with inconsistent the defend- prior Here case. there was no ants’ silence at the time of their arrest. statement, only impermissible Essentially, use of in Doyle made silence. argument the same makes case, in the namely, instant if the majority find seems to an inconsist- truly believed the defense as- ency raising between defense of entrap- trial, serted he would have asserted it at entrap- ment trial and failure to claim the time of In reversing his arrest. at the time logic ment of arrest. The convictions, the Court noted that majority’s position Entrap- eludes me. “post-arrest insolubly silence is ambigu- legal is a concept, ment not a fact. A ous”, and that it would be fundamentally non-lawyer expected can hardly be to know penalize unfair a defendant for his si- enough about the intricacies of the law of 617-18, lence. Id. at at 2244-45. I entrapment to realize the time of arrest submit that Makhlouta’s silence might defense available to be him. entrapment “insolubly ambiguous” on is as Moreover, facts that form the basis for an the silence of the defendants in Doyle. might fully emerge not expecting remark about not investigates until after defense counsel caught changes nothing. be completes case and pre-trial discovery. example, might suspect For As know at with its reliance Anderson v. persons time of his arrest that he dealt the majority’s reliance on Ochoa- game earlier in the with misplaced. Sanchez Ochoa-Sanchez was setting agents up him a bust. Thus it arrested when heroin was discovered in a posit, is fanciful to implicit- as the driving car while attempting to does, ly truly entrapped that one who was *8 cross the Mexican border. After professed entrapment would have warnings, at the Miranda he said he had bor- of his do I any time arrest. Nor discern rowed the car from friend a who lived in Ana, inconsistency entrap- Makhlouta’s between that he driven Tijuana Santa friend, post-arrest ment and his utterance a returning. visit and that he was Reynoso-Ulloa, knowledge drug smuggling 2. 548 F.2d 1329 about and his initi (9th Cir.1977), ation of heroin transactions. 548 F.2d at 1336. contrast, support By 56 L.Ed.2d offers no statement Makhlouta’s that he majority’s position. Reynoso-Ulloa, thought caught get he would not does not belie "lack reluctance to commit crime” was evi his crime” "reluctance to commit absent induce denced ment defendant’s uncontroverted law enforcement authorities. Finally, right remember the case—or hesitatingly he had trial that He testified at to a acquaintances two bar the arrest the defendant confessed accompanied after only the car control over assumed he say and had and in that confession did not at 1286-87. a time before. short up. say He that he’d been set did not permitted to cross-ex- prosecutor The was do felt he’d been forced to it. He didn’t discrepancies on the Ochoa-Sanchez amine fear, say it out of and he he’d done subject on the statements between drinking problem. on a didn’t blame it the car. how he came R.T. 4-89. The focus of these comments Anderson v. Charles court held that Our say did not is on what Makhlouta —his Doyle rather than because controlled entrapment after silence on statements, a “taken as Ochoa-Sanchez’s warnings. his Earli- he received Miranda whole, inconsistency.” 676 F.2d reveal closing argument, prosecutor in the er (citing Anderson following offered the account: 2182-83).3 408-09, 100 S.Ct. at U.S. at meeting a Khwan testified about Elias Moreover, did not court the Ochoa-Sanchez August in late where the at a restaurant prosecutor attempting to was “believe said, me, Jay “tell is a narc? meaning from the defendant’s si- draw cop? testimony Is Is he FBI?” The a clearly spe- questioning related lence. The not, get “I want to out of this alto- was offered at cifically to details that defendant was, cop.” me if he gether.” It “Tell is a time of his failed to reveal trial but And all of this consistent with arrest.” Id. said, “I confession when he knew was inconsistency post- between The crucial caught.” wrong get I think I’d but didn’t statements, court and trial which the arrest The prosecutor R.T. at 4-86-86. later ar- Ochoa-Sanchez, lacking in found to exist weighing the gued that Makhlouta “was Further, prosecu- present in case. getting caught against profit risk of as case, prosecu- unlike the tion in the instant calculating He all he could make. was Ochoa-Sanchez, “attempting was tor in get along. He and he did took the risk meaning from the defendant’s si- draw caught.” prosecu- at 4-87. Here the R.T. prosecutor emphasized Ma- lence.” The attempting to trial properly tor was use silence, supposed not the incon- khlouta’s testimony light on Makhlouta’s to shed sistency post-arrest between The post-arrest statement. instance, For defense. be- several other matters then addressed closing argument, prosecutor stated dealing fore with Makhlouta’s part: involving an set son v. Charles. In a case error claims that Ochoa-Sanchez trial, inconsistency, objected arguable a rule but was to at I would favor the standard of out allowing requiring inconsistency language unneces a clear before Ochoa-Sanchez holding inconsistency impeach with his sary a the defendant to the because the both Such a rule would defendant’s stories was clear. The silence. between the protect a and Fourteenth defendant’s Fifth court noted that defendant’s judicial rights, "quite as well as facilitate differ Amendment version his adventures was trial Note, Protecting proposed to See version he Mur administration. ent from the ray Rights v. Charles: The Problem upon at 1286. The Anderson his arrest.” 676 F.2d After Silence, portions 69 Va.L.Rev. then noted that there were other Partial court of I recognize must "arguably that in the instant case we are of defendant’s trial statements, objection was plain no review for error because with his government’s interposed use of at trial to the not be described in detail.” 676 F.2d need Thus, unnecessary if this court language silence. even at 1287. This holding. inconsistency required Ander- cropped up a to invoke "arguable” clear The word also case, Doyle, quote in this case part son rather than from a First Circuit functionally Hall, (1st compels re- rule us Cir. error Grieco Nevertheless, inconsistency. 1981), arguable view for case in which the Therefore, involving errors emphasize quite that future cases I believe that this circuit clear. *9 by the objected not be bound yet to at trial should inconsist has not determined what level of inconsistency ma- arguable bring test endorsed ency necessary case within jority case. exception Doyle in this rule carved out Ander- point R.T. at 4-89. The silence. this

reference Makhlouta’s silence was that VUKASOVICH, INC., supposedly independent raised an infer- Petitioner-Appellee, predisposed he was ence that to commit the Thus, trying crime. COMMISSIONER OF INTERNAL REV- exploit perceived conflict between Ma- ENUE, Respondent-Appellant. post-arrest khlouta’s silence and his trial entrapment, defense of not between his VUKASOVICH, INC., post-arrest getting on not Petitioner-Appellant, caught and the defense.4 Read context, prosecutor’s closing argu- COMMISSIONER OF INTERNAL clearly Doyle. ment ran afoul of REVENUE, Respondent-Appellee. complained believe that the error 85-7256, here is both obvious and substantial. Ma- Nos. 85-7326. right to khlouta’s remain silent was seri- Appeals, Court of ously compromised. Our court has held Ninth Circuit.

that a comment on silence contravention of consti- Argued and Submitted Feb. 1986. ap- tutes error that is reviewable on Decided June peal timely objection. even absent Lopez, Cir.1978). I would reverse the conviction.

Makhlouta is entitled to a new trial. Supreme 4. Q. alludes to the you got Court's Is this where up the idea to come against bifurcating questions admonition cerning prior con- story you with the took a car from that statements from location? questions concerning the defendant’s failure to No, up A. the reason I came with that arresting story tell the officers the recounted at because it’s the truth. trial. See 447 U.S. at 100 S.Ct. at Q. It’s the truth? 2182. But in ly referring was clear- right. A. That’s to the defendant’s silence you Q. Don’t think it’s rather odd that if it clarify post-ar- between the you were the truth that didn’t come forward rest statement and the trial defense. challenged In the anybody you and tell ed, at the time were arrest- cross-examination, si- you got where that car? squarely juxtaposed post-ar- lence was with the No, A. I don’t. rest statement: Q. You don’t think that’s odd? Now, Kelly’s Q. Company, Tire that’s theft, charged A. I wasn’t with auto I was station, right next to the bus isn’t it? charged with murder. A. That’s correct. Q. you you Didn’t think at the time And, Q. Kelly’s the bus station and Tire are possibly arrested that the car would have right County next to the Washtenaw Jail are something charge to do with the of murder? they not? A. attorney they When I tried to talk to They A. are. just wouldn’t let me see him and after that he And, you’re standing Q. when in the Washte- keep quiet. said to County looking you naw Jail out the window Q. That is a rather recent fabrication of right can look Kelly’s out and see the bus station and Tire, yours isn’t you it not? [sic] can not? A. A. Q. No it isn’t. That’s correct. So, Well, you’ve plenty opportunity you Q. from told Detective LeVanseler back —well, you spent arrested, first you some time in the Wash- you when were first stole the Jail, County you? tenaw haven’t car back on Washtenaw and Hill Street? Quite A. Q. a bit. spoke A. Never with Detective LeVanseler. And, you plenty opportunity have had Q. Never did? to look out that window and see the bus Right, except A. when Detective Hall and Kelly’s station and Tire? tape. Price were there and then it was on right. A. That’s Q. Transcript Trial 302-304. 447 U.S. at And, there, you’ve being parked seen cars S.Ct. at 2181. right? isn’t that A. That’s correct.