Opinion
No. 74-1683.
July 14, 1976.
Melvyn Carson Bruder, Dallas, Tex., for defendant-appellant.
Frank D. McCown, U.S. Atty., John W. Sweeney, Jr., Asst. U.S. Atty., Ft. Worth, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before THORNBERRY, SIMPSON and MORGAN, Circuit Judges.
ON PETITION FOR REHEARING [2] (Opinion 5-10-76, 5 Cir., 1976, 531 F.2d 274)
Having been specifically directed by the Supreme Court to reconsider this appeal in the light of Hale we decline the invitation of the appellee United States to hold that because this cause was tried prior to the decision in Hale, we should deny retroactive application of Hale to Impson's case. We are urged that United States v. Ramirez, 5 Cir. 1971, 441 F.2d 950, cert. denied 1971, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113, and its progeny clearly stated the governing law in this Circuit at all times prior to the decision in Hale.
Impson v. United States, 1975, 422 U.S. 1031, 95 S.Ct. 2647, 45 L.Ed.2d 688.
United States v. Hale, 1975, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99.
A point raised for the first time in the government's petition for rehearing.
While, as pointed out by the petition, neither Hale nor our decision, United States v. Impson, 5 Cir. 1976, 531 F.2d 274, were decided on constitutional grounds, nevertheless the basis for each decision was prejudice to the rights of the defendant on trial engendered by bringing to a trial jury's attention the silence of the defendant on trial in the face of post-arrest police interrogation. We adhere to our decision that, under the circumstances present, reference to James Bobby Impson's silence carried with it an intolerably prejudicial impact, 531 F.2d 274 at 279, paraphrasing Hale, supra, 422 U.S. 171 at 179, 95 S.Ct. 2133 at 2138, 45 L.Ed.2d 99 at 107.
Since our decision in this case, United States v. Impson, 5 Cir. 1976, 531 F.2d 274, the Supreme Court has now determined in a state habeas corpus setting that the Fourteenth Amendment Due Process Clause forbids the use by the prosecution for impeachment purposes of testimony as to the accused's silence at the time of arrest and after receipt of Miranda warnings. See Doyle v. Ohio, 44 U.S. Law Week 4902, ___ U.S. ___, 96 S.Ct. 2240, 49 L.Ed.2d 91, decided June 17, 1976.
The petition for rehearing in the above entitled and numbered cause is ordered DENIED.