United States v. Ruben Magdaniel-Mora, Henny Dekom, Ibrahim Nunez, Francisco Vicente-Leon and Felix Calvo-Castillo

Suppress The Motion to is and was de- nied because the witnesses called employed was at the Sumbry, person who credible, Defendant were not and the de- building. Hearing fense failed to at the establish mother testified that The Defendant’s illegal entry that there was an into or a building and leased it to the she owned building of the of search or a search per at month. The Defendant wit- $250.00 Thus, particular location therein. even if ness, employee a Grade 6 Civil Service at credible, the two witnesses had been there Benning, purchase not Fort could recall legitimate expectation privacy was no building produced price of the no place in the established searched because deeds, leases, agreements rental or rent place neither the search nor the receipts. not a She was credible witness. proved Hearing. at the Sumbry Mr. testified that he was em- day Sep- SO ORDERED on the first ployed building. at He stated that tember, 1983, day and so stated this 17 persons possessed keys three to the build- September, 1984. Defendant, ing: the a female aerobic dance instructor, and himself. The witness did possessed knowledge.

not state how he this he, then Sumbry keys,

If Mr. issued the not Defendant, would be the ultimate arbi-

ter of who could or could not enter the

building. If someone other than Mr. Sum- keys, Sumbry’s testimony

bry issued the hearsay. possibility be Neither ad- would America, UNITED STATES of expecta- vances the claim of Defendant’s Plaintiff-Appellee, privacy. tion of addition, answered, Sumbry Mr. first no, Sir,” MAGDANIEL-MORA, really, question, Ruben Henny “Not to the De- Perry kom, Nunez, right “Does Lewis have a to exclude Ibrahim Francisco Vi- studio, Calvo-Castillo, everyone get from that tell them to cente-Leon and Felix among After a conversation out?” Defendants-Appellants.

judge presence and all counsel in the of the No. 83-5008. concerning testimony, witness permitted Appeals, Defense Court Counsel to recall United States Court of Sumbry at which time he Mr. stated that Eleventh Circuit. persons keys authority

the three had Nov. people building. to exclude from the Mr. Rehearing En Banc Rehearing and likewise, Sumbry, was not credible wit- 4,1985. Denied Jan. ness. Suppression One of the difficulties at the

Hearing resulted from the circumstance moving party never established there was a search much less the

particular building location within the Later, supposedly

which was searched.

trial, that DEA established

Agents process then in the arresting Perry Perry

Defendant saw throw the

package of opening cocaine into an in the

ceiling building. of the The officers re- package.

trieved the This evidence was produced Suppression

not until after the

Hearing.

Simpson, Judge, con- Senior Circuit part part

curred in and dissented in

statement. Kainen,

Dennis G. Asst. Federal Public Defender, Miami, Fla., Magdaniel-Mora and Dekom. Takiff,

Raymond Grove, Fla., J. Coconut for Nunez. Martinez, Hertz,

Roberto Linda Collins Miami, Fla., Attys., Asst. U.S. for U.S. Leban, Miami, Fla., King Mark for Vi- cente-Leon and Calvo-Castillo. VANCE, Before RONEY Circuit SIMPSON, Judges, and Senior Circuit Judge.

VANCE, Judge: Circuit sel for the appellants severance closing argument. people, being For most stranded for sev repeat familiar, To persons days fishing eral aboard a disabled boat together indicted ordinarily should be tried twenty the Gulf of Mexico miles northwest together. Barnes, United States v. Cayman a of Grand Island constitute would (11th Cir.1982), epic proportions.1 misfortune of The trav 75 L.Ed.2d however, case, ails of in this (1983). only This court will review began boarding earnest when grant trial court’s refusal to a severance party from the Coast Guard cutter DECI under Fed.R.Crim.P. 14 for of discre abuse them from SIVE retrieved their immobile DeSimone, tion. United States v. vessel, 12,- along the DON CARLOS— 1981), B Cir. Unit de pounds marijuana. nied, persons All five found aboard the DON L.Ed.2d 149 To an establish abuse possessing CARLOS were convicted of of discretion the defendant must demon marijuana flag on board a United States strate that without severance he was un distribute, vessel with intent to in violation able to receive a fair trial and that he § 955a(a), 21 conspiracy of U.S.C. and of to compelling suffered prejudice against commit the substantive offense in violation which the trial court protec could offér no § 21 U.S.C. 955c. United Horton, States resi tion. United States v. 646 F.2d 181, Calvo-Castillo, (5th A), denied, dents Felix 186 Francisco Vi Cir. Unit cert. 454 970, 516, cente-Leon, 102 S.Ct. 70 L.Ed.2d 388 present and Ibrahim Nunez (1981); Crawford, 581 only serious issues for our consideration on 489, (5th Cir.1978). F.2d 491 This circuit appeal.2 reject We their in contentions se recognizes that the antagonis assertion of quence and therefore affirm the convic test, tic may satisfy defenses but to do appellants. tions of all so the defenses must be irreconcilable and mutually Crawford, exclusive. 581 F.2d at I. SEVERANCE words, 491. other “the essence of one defendant’s defense contradicted Calvo-Castillo, Vicente-Leon, [must be] by a co-defendant’s defense.” United (the appellants) and Nunez severance pro- Berkowitz, 1127, States v. 662 F.2d 1134 test the district court’s denial of their mo- (5th 1981). B Cir. Unit tions for appellants Mag- severance from Dekom, daniel-Mora and made once before Applying principles, these we con and repeatedly during trial. They contend clude that the trial court did not its abuse that granted severance should have been denying discretion in the motions for sever Magdaniel-Mora because and Dekom as- defense, ance. appellants’ The severance serted a defense irreconcilable with and solely which consisted closing of counsels’ mutually argued by arguments,3 exclusive of that coun- was a claimed absence of evi- Regina Julio-Diaz, Dudley Stephens, 1031, Q.B.D. v. & 1. 273 v. 678 F.2d 1033-34 Cir. Cf. 1982). We decline to do so. Magdaniel-Mora 2. Colombians Ruben throughout and Hen In most of the circuit court cases ny only ground Dekom country addressing offer one for reversal of the issue of severance in They laconically suggest defenses, their convictions. antagonistic appar that the context of it is disregard unequivocal, binding precedent we appellant ent that the introduced evidence in unconstitutionally support and declare 21 U.S.C. theory. § 955 of his defense In those cases in vague appellant and overbroad. See United States v. clearly Hen which the or his co-defendant sel, 1000, (11th Cir.1983); evidence, 711 F.2d 1002-03 did not introduce required the courts have not Stuart-Caballero, 890, severance, United ground States v. 686 F.2d on the that no suffi Cir.1982), denied, inconsistency cert. 459 U.S. cient was shown with the co-de (1983); Barnes, 75 L.Ed.2d 444 United fendant’s defense. See United States v. Marino-Garcia, (11th Cir.1982), denied, States v. (11th 1383-84 681 F.2d cert. denied, Cir.1982), 75 L.Ed.2d 802 (1983); (1983); DeSimone, United States United States 660 F.2d jury acknowledge Magdaniel-Mora to demonstrate to the We that sufficient dence Dekom, appellants pursuing defense, in a reasonable doubt that their beyond they marijuana damaging knew troduced or that evidence to the sever possessed possess to conspiracy appellants. appellants, in a ance The severance participated orof however, marijuana distribute. sepa with intent to must show more than that argued government strengthened that had rate have They trials would their presence acquittal, a vessel their aboard chances for shown Island, Walker, Cayman miles off Grand twenty Cir. — 1983), U.S.-, marijuana of which vessel was parts other (1984); they to have been secreted.4 found must satisfy the court that “the essence rested, appellants After is defense contradicted a co-de [their] the stand Magdaniel-Mora and Dekom took Berkowitz, fendant’s defense.” testify They in their own defense. ad- appellants’ at 1134. The severance defense knew of the DON CAR- mitted simply was one a lack of sufficient evi marijuana before the LOS’ contents was upon dence Although which convict. They by the Coast testi- discovered Guard. Magdaniel-Mora’s and testimony Dekom’s however, fied, they innocently boarded implicate tended to appel severance at the El the boat behest of one Chino marijuana importation lants and distri coast, Magdaniel- off the Ramos Colombian scheme, it require bution jury, Mora as helmsman and Dekom as an even if it all testimony, believed them, the According electrician. sever- reject argument severance already ance aboard inadequate evidence. jury The was not CARLOS, appellants and the DON five logically upon compelled, accepting Mag days losing north for several sailed before daniel-Mora’s and Dekom’s testimony as drifting days and power several more until true, find that the appellants to severance spotted up they picked by and the possessed marijuana, partic the knew of or that, They upon Guard. Coast testified ipated conspiracy possess in a to the mari discovering ship’s the asked cargo, they to juana, marijua or intended to distribute the America, to the sev- be returned South but na. appellants so. Both erance refused to do Magdaniel-Mora and Dekom that is asserted This case thus unlike v. United States (5th appellants pressured Cir.1978), the severance them F.2d Crawford, 581 489 Magdaniel-Mora Johnson, agreed falsely until v. to United States 478 F.2d 1129 (5th Cir.1973), himself identify only to the Coast as the Guard two cases we have captain, any DON CARLOS’ and that true discovered in this or in other circuit captain was Vicente-Leon. appellate which an court has reversed denied, (5th 1981), CARLOS, passengers having Cir. Unit B 541 cert. the DON aboard 1027, 1732, (1982); Cayman boarded at Grand Island and traveled 535, Dohm, States v. United 597 F.2d 539-40 prior but a short distance to the failure of the 937, Cir.), denied, (5th 100 such, engines; they were as unaware of the 287, (1979); L.Ed.2d 62 196 States v. United cargo.” accompanied This defense was neither Marable, (5th 1978); 574 F.2d 231 see Cir. by any proffer evidence or of evidence in the Merchant, States v. also United 693 court, closing argument. trial nor mentioned in (8th Cir.1982); Woody, 769-70 rate, argument At counsel in oral before (8th Cir.1982), 690 F.2d plainly this court disavowed the defense: L.Ed.2d 1024 going prove THE COURT: You’re not that Kendricks, (1983); United States v. 623 F.2d get they on the didn’t boat South Ameri- [in (6th Cir.1980). dispo light In of our you right argue ... but have a that ca] issue, of the not decide sition severance we need get they didn’t on the boat? the failure in whether to introduce evidence sir, right argue COUNSEL: No we have a argued support of an to a de defense is fatal case, government prove that the its challenge fendant’s severance to a denial of presenting what we were that’s antagonistic based defenses. way of our defense —a lack of evidence ... appellants severance claim as The in brief or their defense that "were mere crewmen grant for failure to against

conviction severance evidence them on the substan both antagonistic due to defenses. In conspiracy tive and the counts. Counsel Crawford prosecution illegal each defendant in a for appellants judgment these moved for a possession unregistered acquittal of an govern sawed-off of at the close of the shotgun ownership case, denied of the firearm ment’s and the trial court denied the noted, and claimed that the other defendant motions.6 we have As the severance noted, owned it. As appellants this court sole introduced no evidence after the “[t]he guilt government defense of each was the of the other.” Consequently, rested. our re Logically, then, accept- 581 F.2d at 492. sufficiency view of the of the evidence is required ance of one rejection defense by govern restricted to that adduced other. ment in its case-in-chief. United States v. Rhodes, 631 F.2d 44-45 B Cir. Unit appellant Johnson a counter- 1980); Belt, feiting suit asserted defense that he (5th Cir.1978). inquiry Our is present was not when the crime was com- further limited two additional rules of mitted. His co-defendant his own admitted law: the evidence and the inferences presence appellant and testified that to be drawn from it must be viewed in the well, was there as apparently to bolster his light most government, favorable to the merely seeking defense that he was and that the evidence need be such appellant catch the person and a third in a that a jury reasonable could find criminal act and that he thus lacked the guilty beyond a reasonable doubt. United requisite intent to defraud. 478 F.2d 1131- Bell, States v. Cir. jury accepted 33. If the the co-defendant’s 1982)(en banc), Unit B aff'd, 462 U.S. testimony appellant was at the crime, scene of the it necessarily had to reject appellant’s sole defense to the government’s insist that the charges against case, him. evidence in this like that in United Willis, States 639 F.2d 1335 Cir. Here, contrast, appel the severance 1981), Unit A establishes no more than simply lants relied jury’s on the capacity to presence their carrying on a boat contra- find that had failed to band. disagree. government’s We case, prove jury its and the retained that proof, though overwhelming, not was ade- capacity accepted even if it testimony the quate to survive motions for Magdaniel-Mora short, of and Dekom.5 In acquittal. jury could have believed both “[t]he [sets defendants’ theories of defense.” of] The primarily relied on the Stephenson, testimony Eugene of boatswain’s mate (11th Cir.1983). Garner, a par- member of the Coast Guard ty that boarded the disabled DON CAR- II. SUFFICIENCY OF THE EVIDENCE At boarding, LOS. the time of the all five The severance join also gathered defendants were near the stern forces to contest the sufficiency of the while one worked to revive the vessel’s Magdaniel-Mora’s testimony, challenge and Dekom’s sufficiency if lants’ to the of the evi- entirety, placed believed in its the severance expressing opinion dence. Without an on appellants on the DON CARLOSoff the Colom- self-exculpating whether a co-defendant's evi- bian coast a week before the Coast Guard’s logically dence can ever exclude all reasonable boarding, captain; with Vicente-Leon as showed culpability, doubt of a defendant’s we conclude denying request them response, to return home with the Magdaniel-Mora’s testimony, and Dekom’s back, go nothing. "To It would be evidence, conjunction government’s with the die.’’; depicted better for us to vincing Magdaniel-Mora them con- compel by jury. such a result the present himself to captain the Coast Guard as "because he [Vi- 6 Appellants complaint concerning raise no the nothing happen said cente-Leon] would to me acquittal denial of their motions for made at the deport right away." because part would me close of all the evidence. opinion govern- II of this we examine the rejecting appel- ment’s evidence in the severance markings, the or track line proceeded toward identified as a route engines. Garner boat, appeared on the chart. The dots extended entering pilot the house. the bow of cabin, map en from the southern border of the west forward the Beyond it was a past Cayman northwest in the Jamaica Grand gap of a to which consisted trance eight Island. Five of the dots were clus- pilot front of the waist-high wall at the square tered within a few miles of the the forward entered house. As Garner spotted by DON CARLOS’ location when strong odor of he was met with cabin the Coast Guard. pilot picture A taken from the marijuana. introduced, and Garner testified

house was The defendants when rescued were un- exactly he saw as represented that it what wearing dirty, shaven and malodorous entered forward approached he the clothing. Although equipped refriger- as a burlap appel cabin. Several bales what vessel, fishing ated the DON CARLOS’lob- clearly marijuana was are lants concede pots ster were “old and a little rotten-like” visible.7 and she carried no or seafood other cargo except marijuana. the sleeping board two bunks on pilot in the house within a were located few evidence, Considering appel in a direct marijuana feet of the bales and Alfrey, lants’ reliance on United States v. were located line of vision. The bunks (5th Cir.), hatch, next to a underneath which Garner A marijuana. thor- found more bales (1980), misplaced.8 plotted is The course turned ough search of the DON CARLOS certainly extending on the chart and fur 12,000pounds of in 319 bales up marijuana south, appellants’ personal ther appear forty-seven foot vessel. Vari- aboard ance, and the disabled condition of the craft clothing were bags ous travel filled with appellants’ pres when discovered indicate pilot galley in the house. The discovered ence on the DON CARLOS a substan house, m pilot was also located to the period; great quantity tial marijuana right of the forward cabin entrance. It easy detectability by sight on board and its food, stocked with and chicken was well activity and smell from the hub of that was lay saucepans and noodles on the stove. pilot support appellants’ house aware Finally, pilot wheel itself stood in the contraband; presence ness of the and the house, pilot sailors, to the left of forward cabin presumably of five one of them entrance. captain, forty-seven on the foot vessel strongly suggests relationship a close be showing A of Mexico was chart Gulf among tween and the defendants. pilot found in the house and introduced into government. review, A Applying proper evidence series of standard of Garner, green government’s black and dots that who we conclude that evi- qualified expert navigational appel- an dence was sufficient to withstand as (1981). suggest- L.Ed.2d of 7. Defense counsel on cross-examination 188 existence these blanket, by adequate prima ed that the bales had been covered a three factors is alone to create a boarding party Freeman, another member of the which facie case. United States v. 660 F.2d 1030, pilot (5th 1981), denied, before Garner entered the house. removed 1035 Cir. Unit B cert. however, Garner, 823, 54, (1982); testified that he was unaware 459 U.S. 103 S.Ct. 74 L.Ed.2d 59 788, alteration of the forward cabin’s such Mazyak, F.2d & United States v. 650 790-91 appearance. denied, (5th 1981), n. 2 Cir. Unit B cert. 455 U.S. 922, 1281, (1982). 464 102 S.Ct. 71 L.Ed.2d length voy Alfrey, probable "the of the 8. Under argument respect to offer no board, marijuana age, large quantity of on beyond the substantive counts those advanced necessarily relationship close between n conspiracy opposition in to their convictions. captain and his crew factors from [are] however, passing, that the circum- We note in [may] reasonably guilt jury find [of which possession evidence of their of the con- stantial marijuana] conspiracy import distribute to or comparable is to that deemed sufficient traband beyond a reasonable doubt.” Bustos-Guzman, F.2d in United States v. 685 1267, DeWeese, (5th Cir.1980), F.2d 1272 632 1278, (11th 1982). 1280-81 Cir. 878, 358, denied, U.S. 70 (5th Cir.1979), acquittal. See motions lants’ midtrial Ceballos, (1980). F.2d v. States United Cir.1983); v. by United States question posed Garner so 1201-02 Nor was Bustos-Guzman, 1280-81 685 F.2d suggestive in itself as to constitute such Riker, Cir.1982); v. United States Id.; Florida, comment. Pineda Cir.1982). 988-89 (5th Cir.1977),cert. de 1164-65 nied, SILENCE III. COMMENT ON L.Ed.2d 409 raise one Vicente-Leon Calvo-Castilloand government vio- that the

final contention: probl The first statement is more and their process to due right lated their helpful it We believe will be ematical.9 by elic- privilege against self-incrimination describing in by some begin our discussion of their silence iting from Garner evidence of the comment detail the characteristics posed by Garner. questions in the face of First, the comment appellants’ silence. on that, upon discovering the Garner testified direct evidence in the course of came as cabin, he walked to in the forward bales case-in-chief, im government’s not as CARLOS, where the the DON the stern of cross-examination, on during or peachment gathered, and in- five defendants rebuttal, the stand. after took After the bales’ contents. quired about Second, by a the comment was made indicated the performing a field test that witness, by prosecutor, not government marijuana, he returned and held bales questioning directly indirectly, during or or if were aware of the defendants asked Third, exposed closing.10 the comment following cargo. Appellants find their speak at some time appellants’ failure to pieces testimony objectionable: two trial, testify failure to prior to not their I went back to the after ... GARNER: Fourth, ap related to trial. the comment ship everyone was of the where section respond inquiry an pellants’ failure to in the standing at and I said “What’s official, by directed to them anything____ no one said bales?” and statement, offer a deni not their failure to explanation unprompted a direct al or I after sec- GARNER: went back question. to, I explained the vessel and I tion of Anderson, 447 We find Jenkins v. U.S. marijuana you “Do realize it’s said (1980) Marijuana board a you have? Supreme most instructive flag against is the law.” be the Court’s vessel gave me the gentleman pre-trial silence. Jen- And case on the use said, he at me— papers looked degree murder. He kins was tried for first acted in Objection, Your Hon- at trial that he had self- MR. DRESNICK: testified or. in some detail the defense and described of the fatal incident. On circumstances chal The lack of merit closing argument and in cross-examination ap second statement is lenge to Garner’s prosecutor brought out Jenkins’ failure objection cut off parent. Defense counsel’s police volunteer to to seek out the response, he could relate the before Garner version of the facts. After his then, them this appellants. Clearly, no any, of if sought a Jenkins writ habeas conviction appellants’ silence occurred. comment on .prosecutor’s im- Serrano, corpus, alleging that the refer to objection Garner's to the introduc 10. The voiced no 9. they testimony. consequence, testimony concerning appellants’ during In silence tion of this Magdaniel-Mora that its intro must establish before this court and De- cross-examination plain rebuttal, kom, duction amounted to error. closing. or 1296, (5th Cir.), Aguiar, F.2d 1303 v. denied, 610 66 L.Ed.2d 31 449 U.S. (1980). rights Cir.) (en F.2d peachment banc), violated Jenkins’ due 956, 100 and to remain silent. U.S. process S.Ct. 64 L.Ed.2d 815 case, In responded Garner af arguments, rejecting In Jenkins’ firmatively question, to defense counsel’s analyzed the two constitutional court “You boarded it DON be [the CARLOS] The declared no separately. claims Court you thought they cause that had a broken fundamental unfairness existed because engine you and wanted help them check governmental “no induced action [Jenkins] safety?” for arrest.” to remain silent before 447 U.S. In determining Thus, initially whether an rou- at 100 S.Ct. at 2130. unlike the boarding safety tine and Ohio, inspection has petitioner in Doyle v. metamorphosed into a custodial detention (1976), at the time of questioning, this court prohibited which the Court the use of weighs (1) four factors: probable whether post warning silence for im- —Miranda cause to arisen; arrest the defendant had peachment purposes, Jenkins was not lulled (2) whether the interrogating officer sub- security into a false sense of that his si- jectively intended a beyond detention against lence would not be used him. 447 stop search; (3) needed for a routine and 239-40, at at 2129-30. Jen- whether the defendant subjectively be- privilege against kins’ self-incrimination lieved that his freedom was restricted so upon taking was not violated because beyond customary that he was immi- required, stand he was like all other wit- nently subject arrest; (4) whether nesses, truthfully. testify Impeachment investigation had become accusatory prior legitimately probes with silence a tes- and focused on the Warren, defendant. tifying credibility defendant’s and furthers 578 F.2d at 1071-72. together, Taken truth-seeking the courts’ function. The tip factors strongly balance here possibility impeachment prior si- against the existence of a custodial deten- simply determining lence is a factor trial asked, tion at the time Garner “What’s in 236-38, strategy. at Id. 100 S.Ct. at 2128- First, although probable bales?” cause may to search the vessel have existed once guidance Jenkins, Doyle, Under sacks, Garner discovered the burlap proba- Weir, and Fletcher v. ble cause to arrest the defendants did not (1982), reject we yet exist investigation because the into the process due claim. re- Weir bales’ true way. contents was still under Doyle by making plain fined that arrest Jonas, United States v. alone is implicate pro- not sufficient to due 1981). fact, Cir. Unit B none of the considerations; cess giving of a opened bales was for visual or in- tactile warning equivalent Miranda or an affirma- spection until inquiry. after Garner’s Sec- tive assurance raises a fundamental fair- ond, the record does not disclose that Gar- 606-07,102 ness issue. 455 U.S. at S.Ct. at subjective ner’s intent was to restrict the appellants 1311-12. Since had received no beyond defendants’ freedom that incident warnings, Miranda their insistence that boarding. to a routine Even after questioning place pursuant Garner’s took ship’s cargo had marijua- been identified as point. to a custodial detention misses the na, reported Garner to the DECISIVE’s rate, At were not in custo- instructions, captain for and was told to dy purposes Miranda. Coast transfer the defendants to the cutter. stop, boarding routine inspec- Guard’s Third, appellants’ only reference to their flag tion of an high American vessel on the subjective belief is their statement brief seas does not rise to the level of a custodial the moment the Coast Guard “[f]rom detention. Gray, United States v. 659 boarding party CARLOS, boarded the DON 1981); Cir. Unit B guard the defendants were under armed Warren, the rear of the vessel where (5th Cir.1978)(en banc), [ojfficer modified, 612 directed Garner.” This bald however,

assertion, support Cir.1983), finds no in the 1299-1300 — rate, denied, U.S.-, At counsel for Dekom record. response (1984).12 affirmative to elicited Garner’s Appellants’ 79 L.Ed.2d 677 due prac question, “I take it it’s common the process challenge therefore must fail. boarding parties boarding when tice for Turning appellants’ second con boats, go in need of assistance to vessels challenge testimony, stitutional to Garner’s armed, Warren, right?” is that See also privilege against we note that the self-in (Coast party 578 F.2d at 1070 Guard armed guaranteed by crimination the fifth amend boarding inspection). Al when for routine through right ment is fulfilled to re though fact is not determinative of this Arizona, main silent. Miranda v. 384 U.S. belief, the extent that the “[t]o 436, 460, 1602, 1620, 16 L.Ed.2d routine, boarding inspection and are (1966). inherently Absent the coercive defendants should not feel coerced.” Id. at atmosphere interrogation of a custodial Fourth, accusatory stage had 1071-72. requires giving of Miranda warn yet because the contents of not commenced however, ings, a defendant’s silence ordi unidentified, the bales were and thus Gar narily accompanied by must be a claim of party attempting was still to ascer ner’s privilege. constitutional Roberts v. United a crime had committed. tain whether been States, 552, 559-61, Jonas, 445 U.S. F.2d at 204-05.11 1363-65, As substantial distinction between shown, appellants’ we have silence did not Doyle this case and the line of cases is that during interrogation. Ap occur a custodial case this one the comment each but was pellants nonetheless did not refer to the elicited from the defendant on cross-exami later, privilege including then or the side impeach nation and was used defend following objec bar conference counsel’s exculpatory story ant’s told on exam direct tion to Garner’s second statement. This Appellants ination. here never took the Nabors, by case thus is controlled all, at and the comment came in stand as at in which this court held that evi during govern substantive evidence respond dence of a defendant’s failure to presentation. ment’s a recent comment company’s request an insurance for infor addressing case on silence both self-incrimi mation about his involvement with the use process challenges, nation and due damage airplane of and to an insured could persuasive justifi court concluded that “no be introduced in a crimi presented simply cation” for reversal was prosecution nal because the by virtue of the fact that the comment defendant did on during government’s privilege occurred not silence assert his at the time he was Nabors, case-in-chief. v. silent.13 posit pre along Although petition- that references to even before it that line. questioning give process arrest, arrest violation, can rise prior to due er's silence occurred id. at Doyle proge notwithstanding and its process and thus was not violative of due under ny. They rely startling for this rather conclu cases, Doyle pursue line of the court did not Shavers, sion on United States 615 F.2d 266 Serrano, analysis along suggested an alternate the lines (5th Cir.1980); United States v. by appellants. ignored alleged The court (5th Cir.1979), cert. F.2d 1145 965, import by appellants of the relied cases here (1980); and support even as it cited Shavers in of its harm- Henderson, 565 F.2d 900 less error at discussion. Id. 980 n. 13. Cir.1978). Henderson, however, specifically ad Nabors, right challenge, dressed a to silence F.2d at 12. Like the defendant 707 F.2d at pinpoint Shavers the constitu do not contend that their si- issue, guarantee questioning tional at 268-70. lence in the face of Garner’s was Serrano, extent To the which did consider a not relevant under Fed.R.Evid. 401. process argument, sup due ports appellants' 607 F.2d at Jenkins, Supreme 13. Like the Court in thesis, it has not been followed. at 236 n. 100 S.Ct. at 2128 n. we need not Wainwright, In Cir.1982), 670 F.2d 974 Lebowitz privilege against whether the self-in- address great pains the eleventh circuit took pre-arrest in fact extends to a situa- Jenkins, crimination Doyle, to chart the time line of as this one. tion such peg several lower court cases and to the case

IV. CONCLUSION

Despite appellants’ best efforts rever-

sal, appeal conclude that their lies as we in the water DON

dead as the CARLOS.

AFFIRMED.

SIMPSON, Judge, Senior concur- Circuit part, dissenting part:

ring in majority opinion

I concur with the in all agree

respects save one: I cannot Severance, respectfully I.

Section dis- portion opinion. from that I

sent

would reverse the convictions of

Calvo-Castillo, and Nunez Vicente-Leon ground judge that the trial abused his by repeated

discretion denials these de- my

fendants’ Motions for Severance. To Johnson,

mind,

Cir.1973) mandates this result. America,

UNITED STATES

Plaintiff-Appellee, HURLEY,

Raymond Lee

Defendant-Appellant.

No. 84-7293

Non-Argument Calendar. Appeals, Court

Eleventh Circuit.

Nov.

Case Details

Case Name: United States v. Ruben Magdaniel-Mora, Henny Dekom, Ibrahim Nunez, Francisco Vicente-Leon and Felix Calvo-Castillo

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Nov 13, 1984

Citation: 746 F.2d 715

Docket Number: 83-5008

Court Abbreviation: 11th Cir.