Opinion
No. 06-50109. D.C. No. CR-05-01328-NAJ.
Argued and Submitted February 16, 2007 Pasadena, California.
March 30, 2007.
Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding.
Before: CANBY, THOMAS, and WARDLAW, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3.
Michelle Arline Cline appeals her conviction after a jury trial for bringing an undocumented person into the United States in violation of 8 U.S.C. § 1324. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I.
The district court did not err in finding that Cline did not invoke her right to remain silent at the end of the first videotaped interview. There is no question that Cline was given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and that she waived those rights orally and in writing before her interviews. The right to remain silent includes the ability to "control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation." Michigan v. Mosley, 423 U.S. 96, 103-104 (1975). Here, Cline never expressed a desire to end questioning: The first interview ended when the customs agents had exhausted their questioning.
II.
The district court erred in finding that Cline did not selectively invoke her right to silence during the second interview. A defendant may selectively invoke her Miranda rights by agreeing to answer some questions and not others. See Mosley, 423 U.S. at 103-104; United States v. Thierman, 678 F.2d 1331, 1335 (9th Cir. 1982) ("A person in custody may selectively waive his right to remain silent by indicating he will respond to some questions, but not to others.") (citations omitted). During the second interview, Cline clearly refused to answer questions about the name of the person with whom she traveled to Mexico and the name of the person she intended to visit in Mexico. Nevertheless, later in the interview, the customs agents again questioned her about those names. These repeated questions did not scrupulously honor her right to cut off questioning. See Mosley, 423 U.S. at 104; United States v. Garcia-Cruz, 978 F.2d 537, 542 (9th Cir. 1992) (selective invocation of right to silence as to questioning on status as a gang member); see also Arnold v. Runnels, 421 F.3d 859, 864 (9th Cir. 2005) (selective invocation of right to silence as to recording of defendant's statement).
Thus, the district court erred by admitting into evidence the portions of the videotape showing Cline's invocation of her right to remain silent, and further erred by allowing the government to mention Cline's failure to answer questions during closing argument. See Doyle v. Ohio, 426 U.S. 610, 618 (1976); United States v. Bushyhead, 270 F.3d 905, 912 (9th Cir. 2001) (introduction of evidence of invocation of right to silence is due process violation). "In the context of comments on silence, the court [should] consider 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. Velarde-Gomez, 269 F.3d 1023, 1034-35 (9th Cir. 2001) (en banc) (internal quotation and citations omitted). Because preserved Doyle error is a constitutional error, on review the government bears the burden of proving harmless error beyond a reasonable doubt. See Bushyhead, 270 F.3d at 911.
Here, the government has met that heavy burden. First, Cline's selective invocation of her right to silence applied only to two questions during the course of a fourteen minute videotaped interview shown to the jury. While the government mentioned her silence during its closing arguments, it was not stressed to the jury. The sole question at trial was whether Cline knew that there was someone hidden in a compartment in the car. There was overwhelming evidence supporting the jury's conclusion that she did indeed know. Cline's story about driving to Mexico and buying a car on the spur of the moment within the first few minutes in that country was highly implausible. This is particularly true when juxtaposed with the evidence that the car had entered Mexico from the United States at around the same time that Cline claimed to have gone to Mexico. Even if the portions of her second interview involving invocations of the right to silence were excised, it would still demonstrate a wealth of inconsistency. Given Cline's admitted quick turn-around after going to Mexico, the timing of the Thunderbird's border crossings, the testimony from the Mexican national who was in the car, the fact that the hidden compartment could only be opened from the outside, and the general implausibility of Cline's story, the error here was harmless. Cline's conviction was based on her inconsistency, lack of credibility and the complete implausibility of her story, not on the few instances where she refused to cooperate fully by not naming names.
III.
The district court did not abuse its discretion when it denied Cline's Rule 106 request to show the videotape of the first interview to the jury. Although the first interview may have provided some context for understanding Cline's demeanor in the second interview, because it also contained hearsay and she was able to elicit testimony about it during her cross-examination of the customs agent at trial, the district court was within its discretion in denying her request. See United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996) ("Rule 106 does not compel admission of otherwise inadmissible hearsay evidence") (internal quotation omitted). Nor was the exclusion of the videotape so severe a restriction on Cline's ability to challenge the government's case as to implicate her Confrontation Clause rights. See United States v. Ortega, 203 F.3d 675, 683 (9th Cir. 2000).
We reject Cline's challenge to Ninth Circuit Model Criminal Instruction 3.5 (Reasonable Doubt—Defined) as foreclosed by our precedent. Cline failed to preserve this claim of error, and we recently have held that giving this instruction was not plain error. United States v. Ruiz, 462 F.3d 1082, 1087 (9th Cir. 2006).
Finally, we review de novo Cline's claim that Ninth Circuit Model Criminal Instruction 1.2 (The Charge—Presumption of Innocence) violates due process. See United States v. Lopez, 469 F.3d 1241, 1247 (9th Cir. 2006). It is unclear from the record whether this instruction was even given. Even if the instruction was given, we must also reject this argument as foreclosed by our precedent. Id. at 1247-48.
Accordingly, the conviction is AFFIRMED.