were violated when the prosecutors at trial commented on his post arrest silence second his fourth amendment rights were violated when he was pulled over without reasonable suspicion i'd like to focus first on the fifth amendment  interrogation mr garcia waived his miranda rights and he answered some of the interrogating agents questions but there was one line of questioning that he consistently refused to answer when the agent called the interrogating agent asked mr garcia to name names of who else was involved in the smuggling organization mr garcia shook his head said no that he wasn't cool providing names on camera agent called pressed on said can you give me any name a nickname a given name a christian name and mr garcia consistently was silent as to that line of questioning now in his trial the prosecution in its case in chief called agent called to the stand and they elicit a testimony from agent call about mr garcia's silence on this matter the prosecutor asked if  the prosecutor asked did as the interior interview continues this is a r six forty seven did you ask mr garcia or enquire about who had approached him to do the smuggling far into the testimony was that question this was on i believe this was the second day of trial and how far into was he the first witness he was not so how far into his testimony was this question i would you ask him or inquire about who had approached him yes and did he give you a name at that point no throughout the entire interview did he ever give you the name of any individual who had hired him to transport aliens no sir and then he went on the objection there was no objection your honor this is under a few for plain air so the prosecutor then continued did you ask for even a partial name yes i asked for a nickname a given name whatever he could provide us and he seemed very uncomfortable with the fact that his statement was being recorded and kind of referred that he might be willing to say something after the interview did he say something after the interview you know as far as naming someone no and then the prosecutor played clips from the post arrest interrogation so the jury was able to see for themselves that when agent called press with this line of questioning mr garcia shook his head and said he would not name names he remained silent then in closing argument the prosecutor  explained to the jury that mr garcia had been evasive and his post arrest date meant that he had been evasive alluding to this fact that mr mr garcia had refused to name names and in its rebuttal closing argument right guilt it was a remark on the silence that mr garcia elected to to use in his post for a statement so that mr garcia's theory of defense was that he had intended to pick up the aliens and turn them over to border patrol and that was based on testimony that the jury had heard from one of the other agents here expressed an intention for a couple of reasons your hon first of all the impeachment exception to doyle exists where the defendant has taken the stand as a witness and where they say make an affirmative statement that they said something and there post arrest interrogation i told the agents that i told the agents the names of everyone who had worked with in that particular case the prosecutor could get up and cross examine the defendant and impeach that prior inconsistent statement by saying well i actually didn't name names you didn't say anything did you that would be proper that would not be a violation of doyle but that's not what happened here mr garcia never put on a defense he never took the stand the prosecutor elicited affirmative testimony in their direct  in their case in chief on direct evidence about mr garcia's silence now that silence was completely consistent with mr garcia's theory of defense and the prosecutor's comments on that silence violated doyle it wasn't an impeachment of the it's consistent with his theory of his theory of defense was that he intended to pick up the aliens and turn them over and that was the type of information that agent navarro as had told mr garcia he could be paid as a paid informant to provide he said mr garcia would need to provide actionable information such as picking up a load of aliens and turning them over to border patrol so the theory of defense was that that is exactly what mr garcia was going to do so whether or not he named names had nothing to do with that intent or mark  briefing as to this point with regards to whether an invocation needs to be clear and unambiguous that's the rule for whenever there's a miranda violation where a person is claiming that the interrogation should have ceased in that situation we look at was the invocation clear and unambiguous but that's not the type of violation we're arguing here the implication here doesn't have to be anything more than that he refused to speak and that's because doyle says that silence will carry prong prejudice and this court looks at three factors the extent of the comments made by the witness whether an inference of guilt was stressed to the jury and extent and the extent of other evidence suggesting guilt all three of those factors point to the fact that the error here did affect mr garcia's substantial rights the extent of comments made by the witness were extensive and the fourth is also met and in fact one of the cases cited by the w brief pages thirty five and thirty six the government points to six factors into alleged evidence of guilt all of those factors are consistent with mr garcia's theory of defen government points to the fact that there were undocumented aliens apprehended earlier that day that he was driving the same color and type of vehicle that the smuggling organization said he would be that he'd be in contact he had been in contact with the smugglers that he miranda and begins speaking with agents he of course has the right to stop questioning at any time and invoke his right to silence but to do so the supreme court has made it clear that the defendant has to invoke in an unambiguous and the first time the agents asked him to name names with people within the organization he responded by saying i ain't feelin cool with that on camera he then immediately responded to the suggestion from the agent that he would feel cool because once the agent testified that once he turned off the camera at the end of the interview he then asked the defendant ok now are you ready denton to name names the defendant that points try to negotiate with him and say you know i'll give you information if you reduce my jail sentence that that sort of negotiation i'll give you information if you give me benefits that's not an unequivocal indication of the right to silence that's bargaining with a conditional that's a change in the conditions of yes your honor and that there's silent about who was paying true here i would disagree i think that that is saying that i'm willing to negotiate i'm willing to give you information if you give me something in response is not an unequivocal as a violation of the fifth amendment and even if this court were to conclude that that his statements about not wanting to speak on camera and his later refusal to provide information absent than if it's in return did constitute an unequivocal right to an to remain silent this court has held that once a defendant at trial puts on evidence or creates the impression that he did cooperate with agents and then even invocation as of silence or even a defendant silence post arrest can be used to sort of correct that false impression that the defendant created counsel which a strong case to support the argument that would be mcmillan versus gomez in that case the the court actually held that it was the defense cross examination of the interviewing agent that created the impression that sort of opened the door for the for the prosecution then to later question the defendant about his refusal to cooperate with agents in other words they cross examine that agent created the impression that the guy was cooperated all along and this court held that it was ok at that point for the united states to respond and say he didn't cooperate at all why should we be persuaded by the analogy to that your honor that he did testify in that case but the court made it clear that the thing that created the impression that opened the door was the defense cross examination of the agent before the defendant even took the stand they created the impression that he had been fully cooperative and then when the defendant took the stand the court allowed the prosecutor to then sort of delve into what he didn't say when he was interviewed the second time which you agree t it's a little different when the evidence is coming in through the government witness and the defendant has not testified it is different your honor i don't think that there is a case again that's directly on point with this back pattern but if you look at how th sort of defense came in sort of chronologically in this case the agents the interviewing agent excuse me one of they just testified and was cross examined the defense asked multiple questions about the defense cooperation with border patrol then eventually the parties went sidebar to talk about whether the defense would be pursuing a public authority defense and at that sidebar discussion the defense sort of laid out what their theory of defense was going to be and what they were going to argue to the jury which was that this defendant never had the specific intent to transport the aliens because all along he was cooperating with the border patrol or was intending to cooperate once that impression was clear and that defense was clear that's when the united states put on this evidence and played these clips to show that even after the defendant was arrested he never cooperated with the border patrol and we comment resins that he wasn't cooperating  for that he was guilty because i would disagree with that your honor i think both the closing argument and the rebuttal were directly tied to this idea that the defendant's defense that he was cooperating this entire time or one and the second one that there was an error at the very least there's no controlling case law on this specific fact pattern that would have been plain to the court as to the third prong it's our position that even if this was an error the defense has not  t their burden of showing that this affected has substantial rights that evidence of the defendant's involvement in the attempted alien smuggling was overwhelming in this case the agents found three  undocumented aliens and a high traffic area approximately two o'clock in the afternoon one of them was talking on the phone and scanning as if he was looking for a load vehicle and then approximately thirty minutes later the defendant arrived in the same make and color of car that the alien had received a call on saying there's going to be a red jeep coming to pick you up defendant arrives in a red jeep approximate thirty minutes later and  in addition the agents also show that the defendant's phone had called the same contact in mexico that the aliens had and then the defendant agreed to be interviewed and admitted that he was going to be paid two hundred dollars that he was plan these agents to some other location of aliens in some other location and that he was going to give some of that money back to his passenger and in addition to that substantive evidence of the defendant's guilt even the defendant's defense that he was cooperated with border patrol all along was directly undercut by a number of other facts in evidence besides the statement on the video first there was the fact that when he left the location then a border patrol agent followed him for six miles he did not say anything to that agent about wanting to cooperate and in fact when the agent approached his vehicle he lied and said that he was actually visiting his cousin at the prison he also as i mentioned when he was agreed to be interviewed he told the agents that he was going to be paid two hundred dollars per alien that he was going to drive them somewhere within the united states and that he was going to give a portion of that two hundred dollars to his passenger and it doesn't make any sense why if his whole plan all along was to not pick up the aliens at all and call the border patrol why he would be discussing getting two hundred dollars and giving some of that to his passenger and the whole time he was not intending to get any money at all other than potentially from the border patrol agents  and then finally as the defendant is leaving the scene the evidence showed that he deleted all of the contacts in his phone and so there was no contact on his phone until the point he was arrested when the sort of incoming calls from the smuggler arrived so all of those facts directly undercut this idea to defend it was only in this area not to pick up a lens not for two hundred dollars a head but merely to scope out the area and then call the border patrol the additional evidence of his evidence of cooperation that case just as relevant here what happened here was the prosecutor under rect examination asked their own witness about what mr garcia had explained and mr garcia and the agent said mr garcia said he planned to pick up the aliens and turn them over that information about cooperating that came from the government and the defense's theory of defense followed suit from that moreover this theory of defense that he was playing on cooperating by turning over the aliens i totally consistent with the fact that mr garcia was uncomfortable naming names that the fact that he wants to oppose the position that he merely wanted to negotiate the terms under which he named names that he can't be used as a as an admission of guilt and that's what the prosecutor did here that's what they did in their rebuttal argument they said that he couldn't have intended to cooperate by turning over the aliens because he was silent about names he was silent during the interrogation and he was silent