69 F.

3d 1103

UNITED STATES of America, Plaintiff-Appellee,

v.
Edier TENORIO, Defendant-Appellant.
No. 93-4666.

United States Court of Appeals,

Eleventh Circuit.
Nov. 29, 1995.

Christine Stebbins Dahl, Brenda G. Bryn, Asst. Federal Public Defenders,

Thomas S. White, Federal Public Defender, Miami, FL, for Appellant.
Roberto Martinez, U.S. Atty, Linda Collins Hertz, Kathleen M. Salyer,
Robert K. Senior, Asst. U.S. Attys., Miami, FL, for Appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before EDMONDSON and BARKETT, Circuit Judges, and DYER,
Senior Circuit Judge.
DYER, Senior Circuit Judge:

Edier Tenorio ("Tenorio") appeals his conviction claiming the district court
erred in permitting the prosecutor to use post-Miranda1 silence to suggest guilt
and impeach his testimony. We reverse.

Tenorio was charged with importation and possession with intent to distribute
heroin, in violation of 21 U.S.C. Secs. 952(a) and 841(a)(1). The three day trial
commenced with the government presenting evidence that Tenorio arrived at
Miami International Airport on an American Airlines flight from Panama. His
manner and dress caught Inspector Richard Skirko's attention in the customs
inspection area. Observing an expensive "piggyback" suitcase, Skirko stopped
Tenorio at 6:05 p.m. because in his experience drugs were sometimes
concealed in that particular style of Samsonite luggage. Skirko searched the
suitcase at approximately 6:20 p.m. and immediately realized the sides were

much thicker than normal. Within a few seconds of opening it, the inspector
detected an odor of fiberglass resin, which he knew was frequently used to
construct false compartments. His suspicions aroused, Skirko continued the
search by punching a hole in the side of the suitcase with a screwdriver, which
released a white powder. A field test at 6:25 p.m. confirmed the powder was
heroin. Tenorio was advised of the test results and arrested.
3

Although the record does not reveal when Tenorio was actually read his
Miranda rights, the prosecutor proffered that information to the district court.
According to the proffer, after being advised of his rights, Tenorio said he
"wanted to think about it," which he did for fifteen or twenty minutes. The
record does show that Tenorio signed a statement at 6:35 p.m. declaring that he
did not intend to waive his rights. It appears from the proffer, therefore, that
Skirko read Tenorio his rights sometime around 6:20 or 6:25 p.m. The inspector
remained on the scene until 6:40 p.m. verifying the amount of heroin seized.2

Inspector Skirko testified Tenorio did not appear to be shocked when he learned
of the heroin. According to the inspector, after being arrested for importing
narcotics, he "continued just to look unhappy, but not surprised." Tenorio
testified he did not see Skirko probe the suitcase with a screwdriver, or test the
powder. He said he wanted to explain to Skirko that the suitcase had been
loaned to him, but kept quiet because he had been told that everything he said
would be used against him.

D.E.A. Agent Victor Broughton took custody of Tenorio sometime after he

refused to waive his rights and they left for the county jail at about 7:00 p.m.
Broughton saw Tenorio twenty two hours later, at his initial court appearance,
where Tenorio volunteered that "he didn't know anything about the narcotics;
that some unidentified [cab driver] had approached him at the hotel and offered
to loan him a suitcase because his suitcase was so worn, tattered." Broughton
testified on direct examination that that was the first time he heard any
explanation from Tenorio about the heroin.

Defense counsel moved for a mistrial asserting it was improper for the
prosecutor to have elicited Broughton's testimony, which had indirectly touched
on Tenorio's invocation of his right to remain silent. The government contended
that evidence that Tenorio's voluntary statement was contradicted by his words
or actions before the Miranda warnings was admissible. The government also
argued it was permissible to contrast Tenorio's silence prior to receiving
Miranda warnings with his statement to show that Tenorio had concocted a
story while in jail to explain the heroin in his luggage. The court ruled the
government could only elicit testimony concerning Tenorio's pre-Miranda

statements and the exculpatory statement made at his initial court appearance.
Concluding that no improper testimony had yet been received, the court denied
the motion for mistrial but admonished the prosecutor not to ask any questions
implying that Tenorio had invoked his right to remain silent. The court also
precluded any testimony of the twenty two hour delay between Tenorio's ride to
the jail with Agent Broughton and his exculpatory statement.
7

The government presented its theory, in part, through the direct examination of
Skirko and Broughton. In short, Tenorio's silence, as the government saw it,
was proof of his guilt. The prosecutor developed this theory for the jury by
urging them to consider that Tenorio offered Skirko no explanation during the
inspection because he fabricated the story about the cab driver. She argued, "If
it were true that [Tenorio was] an innocent courier, he would do what any
normal person would do when the drugs were found, he would have [explained
the drugs were not his]." The prosecutor concluded her summation to the jury
on this point as follows:

8 would suggest to you ... that an innocent courier, when he was found in the
We
airport to have drugs concealed in his luggage, would at that point say something if
he had an explanation. He would be shocked, he would be horrified, and he would
give the law enforcement agent an explanation of how [ ] he had gotten this suitcase,
that he was not in fact the guilty party, that someone else must have put [the heroin]
in. He didn't do that, although he was in Inspector Skirko's presence for half an
hour.... And it is our suggestion to you that what happened is this. That Mr. Tenorio,
overnight, in the jail simply thought [the story] up.... And so the next day, although
no one in the court called upon him to give an explanation for the acts with which he
was charged, he immediately volunteered [one] because he now had a story to give.
9

Defense counsel raised an objection to these comments, which the court again
overruled because it understood the arguments were directed to Tenorio's preMiranda silence.

10

It is well established that after Miranda warnings have been given, the
government cannot fairly use a defendant's silence against him at trial as
evidence of guilt. Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88
L.Ed.2d 623 (1986) (silence cannot be used as affirmative proof of a fact in
issue); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106
(1965) (Fifth Amendment prohibits prosecutorial comment on defendant's
silence); United States v. Rivera, 944 F.2d 1563 (11th Cir.1991) (silence
cannot be used as evidence of guilt). Furthermore, Doyle v. Ohio, 426 U.S. 610,
96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and its progeny, see, e.g., Fletcher v. Weir,
455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) and Jenkins v. Anderson,

447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), mandate that a defendant's
exculpatory testimony cannot be impeached by his post-Miranda silence on the
ground that he did not give an explanation for his conduct at the time of arrest.
11

In Doyle, the defendants took the stand and offered an exculpatory explanation
for their participation in a drug transaction. On cross-examination, the
prosecution impeached their testimony by asking why they had not explained
their conduct upon arrest. The Supreme Court held that such cross-examination
was fundamentally unfair, and thus violated the Due Process clause of the
Fourteenth Amendment, for two reasons. First, a defendant's silence, being
"insolubly ambiguous," has low probative value. 426 U.S. at 617, 96 S.Ct. at
2244. Second, Miranda warnings carry the implicit assurance "that silence will
carry no penalty." Id. at 618-19, 96 S.Ct. at 2245.

12

When Tenorio objected to the government eliciting evidence of his silence, the
prosecutor made clear to the court the purpose of Agent Broughton's
examination was to suggest that Tenorio had lied, and that he was guilty
because if his story was true, he would not have waited twenty two hours
before telling it. The prosecutor drove the point home to the jury in the closing
argument quoted above. In addition, she highlighted Skirko's testimony for the
jury that Tenorio was not shocked at being arrested. On this point she argued
that he "volunteered no explanation as any reasonable innocent person would
do when confronted with that situation."

13

The admission of Broughton's testimony and the prosecutor's comments during

closing argument violated Tenorio's Fifth Amendment right to remain silent and
right to due process.3 The government erred by violating the implied assurance
in the Miranda warnings that silence will carry no penalty. The district court
erred in finding that the evidence and argument were directed only at preMiranda silence. Neither the testimony in question, nor the prosecutor's
arguments drew any time distinctions for the jury. In fact, the prosecutor may
well have confused the jury by referring to a half hour period that Tenorio
spent with Inspector Skirko, which necessarily included a period of time after
Tenorio refused to waive his right to remain silent. Furthermore, there were no
curative or limiting instructions given to assist the jury. Thus, the jury could
have impermissibly convicted solely on the basis of Tenorio's post-Miranda
silence.4

14

When the use of a defendant's silence results in a constitutional violation, the

conviction can stand only if the reviewing court is satisfied beyond a
reasonable doubt that the error was harmless. Matire v. Wainwright, 811 F.2d
1430, 1436 (11th Cir.1987). In United States v. Meneses-Davila, 580 F.2d 888

(5th Cir.1978), 5 the court outlined three categories into which prosecutorial
comment on a defendant's silence may fall, one of which applies to the present
case:
15
When
the prosecution uses defendant's post-arrest silence to impeach an exculpatory
story offered by defendant at trial and the prosecution directly links the
implausibility of the exculpatory story to the defendant's ostensibly inconsistent act
of remaining silent, reversible error results even if the story is transparently
frivolous.
16

Id. at 893 (citation omitted). Comments on post-arrest silence do not always fit
neatly into a category and determinations of harmlessness must be made on a
"case-by-case basis." Id. at 890. The reviewing court must examine the facts,
the trial context of the error, and the prejudice created thereby as juxtaposed
against the strength of the evidence of defendant's guilt. Id.

17

The government's direct evidence in support of its theory needs no further

discussion. In cross-examination, the government elicited directly from Tenorio
that he did not offer his explanation to the agents because he was exercising his
constitutional right of silence. The prosecutor's argument directly linked the
implausibility of Tenorio's exculpatory story to his ostensibly inconsistent act
of remaining silent.

18

Although the egregious and intentional use of silence to infer guilt is sufficient
to warrant reversal, see Matire, 811 F.2d at 1433 & n. 2, several other factors
influence our decision. Tenorio's silence was the touchstone of the
government's case-in-chief, its cross-examination of the defendant, and its
closing argument during this trial of short duration. The errors thus pervaded
the trial, which amplified the importance of Tenorio's silence as a piece of
evidence to be used to decide not only his credibility, but his guilt. See Velarde
v. Shulsen, 757 F.2d 1093 (10th Cir.1985) (per curiam) ("where the case comes
down to a one-on-one situation, i.e., the word of the defendant against the word
of the key prosecution witness ... the importance of the defendant's credibility
becomes so significant that prosecutorial error [in] attacking that credibility
cannot be harmless beyond a reasonable doubt"). Furthermore, the extremely
prejudicial and improperly admitted evidence of Tenorio's silence could
reasonably have been the basis for the guilty verdict. See Stano v. Dugger, 901
F.2d 898, 903 (11th Cir.1990) (en banc) (harmful error demonstrated in part by
jury's inability to reach verdict).

19

Not being satisfied beyond a reasonable doubt that the errors were harmless, we
REVERSE the conviction and REMAND for a new trial.6

EDMONDSON, Circuit Judge, concurring:

20

Although I concur in the result and in the court's opinion, the court's opinion
steers clear of addressing a question that is properly before us and, I think,
required to decide the case fully. Evidence of Tenorio's post-Miranda silence
was introduced in the prosecution's case-in-chief. This use is constitutional
error. Thus, the important question is whether the error is harmless. The
majority opinion decides this question without deciding an issue the parties
present to us: Whether the district court properly admitted evidence of
Tenorio's pre-Miranda silence. Because the most probative evidence of
Tenorio's guilty mind was his pre-Miranda failure to explain how he came into
possession of the suitcase, I find it necessary as part of the harmless error
analysis to determine whether the pre-Miranda silence was properly admitted.*

21

Tenorio contends (and briefs to us) that the government cannot use his preMiranda silence in its case-in-chief as substantive evidence of guilt. The
constitutional basis for this extension of the prophylactic rule announced in
Miranda is unclear to me. Were this issue one of first impression, I would
decide that the pre-Miranda evidence was admissible. But, this court has
already decided the question: The prosecution may introduce as substantive
evidence of guilt in its case-in-chief a defendant's pre-Miranda reaction to a
stop and search. Admissible evidence includes that no innocent explanation
was offered to the officer before the arrest. See U.S. v. Rivera, 944 F.2d 1563,
1568 (11th Cir.1991) ("The government may comment on a defendant's silence
if it occurred prior to the time that he is arrested and given his Miranda
warnings.").

22

Tenorio argues that the pertinent part of Rivera is dictum. I will briefly explain
why this is not so. In Rivera, a customs officer testified about the defendant's
pre-arrest demeanor as she (the defendant) was approached and as her suitcase
was searched. The officer also testified about post-Miranda silence. Id. at 156768. On appeal, this court assumed the admission of post-Miranda silence was
error, but held this error to be harmless because the prosecutor "was clearly
entitled to comment on [the defendant's] demeanor when she was first
approached ... and later as [the] suitcase was being searched." Id. at 1569. Thus,
the conclusion that pre-Miranda silence was properly admitted is not dictum,
but was essential to the court's decision that an assumed error was harmless.

23

This court later explained Rivera in U.S. v. Simon, 964 F.2d 1082 (11th
Cir.1992). There, Simon said before arrest that he did not own a certain
weapon. Later, it was discovered that he did. At trial, the government
introduced in its case-in-chief that Simon earlier failed to admit ownership of

the weapon. Simon argued this violated his fifth amendment rights. This court
responded, "[b]ecause Simon was not under arrest at the time in question, we
reject his claim that the evidence ... was inadmissible because of the fifth
amendment self-incrimination provisions. Silence is admissible in the absence
of Miranda warnings." Id., 964 F.2d at 1086 n. * (citing Rivera ) (emphasis
added).
24

The law of this circuit is settled that evidence of pre-Miranda silence is

admissible in the government's case-in-chief as substantive proof of guilt. Cf.
U.S. v. Calise, 996 F.2d 1019, 1022 (9th Cir.1993) (error--if any--in admitting
evidence of defendant's reluctance to answer police questions in government's
case-in-chief harmless given curative instruction); U.S. v. Hernandez, 948 F.2d
316, 323 (7th Cir.1991) (momentary pre-Miranda silence at the time arrest is
ongoing not admissible in case-in-chief); U.S. v. Burson, 952 F.2d 1196, 1201
(10th Cir.1991) (pre-arrest silence, where defendant has already affirmatively
asserted right to silence, inadmissible in government's case-in-chief); U.S. ex
rel. Savory v. Lane, 832 F.2d 1011, 1015-17 (7th Cir.1987) (pre-arrest silence,
after defendant informs police "I won't make any statements," not admissible in
case-in-chief); Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.1989) (preMiranda statement of "if you think I'm going to confess to you, you're crazy"
inadmissible because it was assertion of right to remain silent); U.S. v. Caro,
637 F.2d 869, 876 (2d Cir.1981) (assuming without deciding it is error to
introduce pre-Miranda silence under similar facts, but holding any error
harmless because evidence clearly admissible to impeach defendant's
testimony).

25

Applying this rule to the record now before us, it appears that during the initial
stop and inspection of his luggage, Tenorio was not in custody for Miranda
purposes and had not been given his Miranda warnings. Under these
circumstances, the Constitution permits the government to use Tenorio's
reaction to the stop and search (including his failure to explain how he came
into possession of his suitcase) as substantive evidence of guilt in its case-inchief. Thus, the district court did not err in admitting evidence of Tenorio's preMiranda silence or demeanor.

26

Despite the highly probative value of this properly admitted evidence, a review
of the record leads me to accept (although I think the case is a close one) that
the admission of the evidence of post-Miranda silence was not harmless. Cf.
Rivera, 944 F.2d at 1568 (admission of post-Miranda silence harmless because
other evidence, including pre-Miranda silence, so strong). Therefore, I concur.

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

In total, the suitcase concealed approximately 1,548 grams of ninety three

percent pure heroin, which had a wholesale value of $225,000 and a street
value of $3 million

Broughton's testimony and the discussion in closing argument of the entire time
Tenorio was with Officer Skirko involve Tenorio's post-Miranda silence, so
constitutional error--which is not harmless--is present in this case. Tenorio is
due a new trial

That this may have been the case is supported by the fact that after several
hours of deliberating the jury deadlocked before returning a guilty verdict

Decisions rendered prior to the close of business on September 30, 1981 by the
former Fifth Circuit are binding precedent on this court. Bonner v. City of
Prichard, 661 F.2d 1206 (11th Cir.1981)

In view of our disposition of the appeal on the post-Miranda silence issue, it is

unnecessary to reach the other errors asserted by Tenorio

With a view toward the likely retrial, reaching this issue will aid the district
court on remand and will serve the interests of judicial economy. See U.S. v.
Costa, 31 F.3d 1073, 1080 (11th Cir.1994)