1

United States Court of Appeals

Fifth Circuit

FILED

March 5, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 05-10964

______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO ALFREDO SALINAS,

Defendant-Appellant.

____________________________________________________

On Appeal from the United States District Court for the

Northern District of Texas, Dallas Division, 

No. 3:04-CR-208-N

_____________________________________________________

Before GARWOOD, DENNIS, AND OWEN, Circuit Judges.

DENNIS, Circuit Judge.

This case is before us on appeal of defendant Mario

Alfredo Salinas’s conviction for unlawful possession of

a firearm by a convicted felon, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). For the reasons stated

below, we AFFIRM Salinas’s conviction.
2

I. Background and Proceedings Below

At approximately 11:15 p.m. on April 9, 2003,

defendant Mario Alfredo Salinas was driving a black, 1999

GMC Yukon. Officer Erwin Fulcher of the Carrollton,

Texas police department stopped the vehicle because it

had a defective tail light. Officer Fulcher asked

Salinas for his license and proof of insurance. Salinas

gave the officer his driver’s license, but stated that he

did not have proof of insurance because he was in the

process of purchasing the vehicle. Officer Fulcher

eventually arrested Salinas for failure to provide proof

of insurance and transported Salinas to the Carrollton

police station.

After Salinas was arrested, additional Carrollton

police officers on the scene conducted an inventory

search of the Yukon. During the search, officers found

a brown paper bag, which contained $3,397 in cash,

between the driver’s seat and the center console.

Beneath the bag, officers found a loaded Ruger 9mm

semiautomatic pistol. Officers also found a black pouch

containing a loaded Rossi .357 Magnum revolver under the
3

front passenger seat. The Yukon’s rear cargo area

contained a gym bag with $168 and some vitamins inside

it. At the police station, officers found $2,168 in cash

in Salinas’s jacket pocket.

Two days after his arrest, Salinas returned to the

Carrollton police station and said that he wished to pick

up his “money and other stuff.” The property room

officer stated that all of the seized property was

evidence and could not be released to Salinas. The

officer also stated that, because Salinas was a convicted

felon, the firearms could not be returned to him.

Salinas responded, “I know that,” and he then left.

Salinas ultimately was charged with one count of

unlawful possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At

trial, Salinas’s defense was that he had borrowed the

Yukon from his friend Rosendo Moreno, and that he did not

know that the firearms were in the car. Moreno testified

at trial that he purchased the Yukon on April 8, 2003

from a man named Henry Lopez. Moreno stated that, on

April 9, 2003, he took the vehicle to Big Rig Detailers,
4

an automotive shop at which Salinas worked, to have some

hail damage repaired and to have the car painted. While

he was there, Moreno stated, Salinas told Moreno that his

car was in the shop, and he asked Moreno whether he could

borrow the Yukon. To support Moreno’s testimony, the

defense offered into evidence a bill of sale showing a

sale from Lopez to Moreno on April 8, 2003. The bill of

sale indicated that it had been notarized by Jose

Francisco May. 

Moreno also testified that the cash and the two

firearms found in the Yukon belonged to him. He stated

that he purchased the .357 Magnum in a “street buy,” and

that he purchased the 9mm from a friend named Carlos

Hernandez. Moreno testified that the guns were in the

Yukon because he had used them at a gun range earlier on

April 9, 2003, before he loaned the vehicle to Salinas,

and that he kept the firearms loaded because he had

previously been the victim of an attempted carjacking.

On cross-examination, Moreno admitted that he did not

have a permit for either weapon, that the firearms were

not registered to him, and that he did not have any
5

documentation to prove that he owned the firearms. The

prosecution also cross-examined Moreno at some length

about other aspects of his version of events, including

the fact that, although he claimed that the $3,397 found

in the Yukon belonged to him, he had never made any

attempt to recover the money from the Carrollton police

department.

The defense also presented testimony from Carlos

Hernandez, who testified that he sold Moreno the 9mm in

March 2003, and from Salinas’s employer, Christopher

Cruz, who stated that he recalled that Moreno brought a

sport utility vehicle to Big Rig Detailers in April 2003

and that Salinas had borrowed the vehicle. Salinas did

not testify in his own defense at the trial. 

In rebuttal, the prosecution presented testimony from

Henry Lopez, the registered owner of the Yukon. Lopez

testified that he did not sell the Yukon to Moreno on

April 8, 2003. Lopez stated that he sold the Yukon to a

friend named Shane Clendening on April 1, 2002, and that

he believed that the vehicle had since been resold

several times, but that the title had never been
6

transferred out of his name. Lopez also stated that,

although he signed a bill of sale that purported to

describe a sale to Rosendo Moreno on April 8, 2003, he

actually signed the document on April 16, 2003, and he

did so only because he believed that it would help to get

the title transferred out of his name. Lopez testified

that there was not a notary public present when he signed

the bill of sale. The government also called Jose

Francisco May, the notary public, who testified that he

did not notarize the bill of sale between Lopez and

Moreno.

On January 20, 2005, a jury convicted Salinas, and on

July 11, 2005, the district court sentenced him to 57

months in prison. On appeal, Salinas makes two

arguments. First, he argues that the prosecution

improperly attempted to use his post-arrest silence as

substantive evidence of his guilt. Second, Salinas

claims that the evidence at trial was insufficient to

support his conviction.
7

II. The Prosecution’s References to Salinas’s PostArrest Silence

Salinas claims that the prosecution improperly made

reference to his post-arrest silence at three points

during its case-in-chief. First, during the

prosecution’s opening argument, the prosecutor stated,

“At no time, at no time, the evidence is going to show,

that the defendant denied ownership of the money or

guns.” Defense counsel immediately objected to that

remark. The court sustained the objection and reminded

the jury that it was to render its verdict only on the

basis of the evidence presented, not on the arguments of

counsel.

Second, during the government’s examination of

Officer Fulcher, who arrested Salinas and who was with

Salinas at the Carrollton police station when the

firearms were discovered in the Yukon, the prosecutor

asked Officer Fulcher “how, if at all” Salinas reacted

when he heard that firearms had been found in the Yukon.

Defense counsel objected before the witness could answer,

and the court sustained the objection.
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Third, later in its direct examination of Officer

Fulcher, the prosecution asked Officer Fulcher whether

Salinas made any statements after his arrest. Officer

Fulcher answered, “No, sir.” Defense counsel again

objected, and the court sustained the objection. Defense

counsel also requested that the jury be instructed to

disregard the statement. The trial judge stated that he

would not then instruct the jury, but would consider an

instruction at a later time. Defense counsel apparently

never reiterated his request for an instruction. In its

charge to the jury, however, the court instructed the

jury that the statements and arguments of the lawyers

could not be considered as evidence and that the jury was

to disregard any question to which the court had

sustained an objection.

Salinas asserts that each of those statements was an

improper comment on his post-arrest silence, in violation

of his constitutional rights. The government maintains

that the comments and questions were permissible. The

government points out that Salinas did not receive the
1Miranda v. Arizona, 384 U.S. 436 (1966).

2Officer Fulcher testified at trial that he did not read

Salinas the Miranda warnings because he had no intention of

interrogating Salinas.

3With respect to the comment made during the prosecutor’s

opening statement, the district court, at Salinas’s request,

instructed the jury that the lawyers’ comments were not evidence.

While the trial court declined to immediately instruct the jury to

disregard the final improper remark—the court stated that it was

“not going to instruct at this time,” but would “consider that

later”—the district court did later charge the jury that it was to

disregard any question to which the court sustained an objection.

In addition, nothing in the record indicates that Salinas again

raised the issue with the district court or objected to its

handling of the situation.

9

Miranda1 warnings at the time of his arrest,2 and it

argues that the prosecution can permissibly refer to a

defendant’s pre-Miranda warning silence at trial.

Because Salinas did not properly preserve his claim

of error regarding the prosecutor’s comments on his postarrest silence in the district court, we review this

claim only for plain error. Although Salinas’s counsel

timely objected to each of the prosecutor’s references to

Salinas’s post-arrest silence, the trial court sustained

all of those objections, and the trial court’s

instructions to the jury made it clear that the jury was

not to consider any of the challenged remarks.3 Salinas’s

counsel never took exception to the district court’s
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handling of his objections, and, significantly, Salinas

never requested that the district court declare a

mistrial. Thus, Salinas effectively received all of the

relief that he requested from the district court. When

a defendant asks this court to reverse a conviction under

these circumstances, the defendant essentially asks us

“‘to go against the implicit judgment of both the trial

court and the defendant’s trial counsel that the trial

court’s corrective action was adequate and appropriate.’”

United States v. Carter, 953 F.2d 1449, 1465-66 (5th Cir.

1992) (quoting United States v. Canales, 744 F.2d 413,

431 (5th Cir. 1984)). In such cases, we consider the

challenged comments under the plain error standard. See

id. at 1466 (applying plain error standard where trial

court sustained defendant’s objections and defendant did

not request mistrial; stating that “logically there is

little difference between a case that comes to us where

no objection has been made to the alleged impropriety and

one where no further objection has been made to the trial

judge’s handling of an impropriety”); see also Canales,

744 F.2d at 431.
11

To establish plain error, the defendant must show

that “(1) there is an error, (2) the error is clear or

obvious, and (3) the error affects his substantial

rights.” United States v. Coil, 442 F.3d 912, 916 (5th

Cir. 2006); Fed. R. Crim. P. 52(b) (“A plain error that

affects substantial rights may be considered even though

it was not brought to the court’s attention.”). An error

is considered plain, or obvious, only if the error is

clear under existing law. United States v. Olano, 507

U.S. 725, 734 (1993) (stating that a “court of appeals

cannot correct an error pursuant to Rule 52(b) unless the

error is clear under current law”). If those three

conditions are satisfied, this court may grant relief if

“the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United

States v. Ibarra-Zelaya, 465 F.3d 596, 606 (5th Cir.

2006) (citing United States v. Mares, 402 F.3d 511, 520

(5th Cir. 2005)); United States v. Garcia-Flores, 246

F.3d 451, 457 (5th Cir. 2001) (“‘Plain error occurs when

the error is so obvious and substantial that failure to

notice and correct it would affect the fairness,
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integrity, or public reputation of judicial proceedings

and would result in manifest injustice.’”) (quoting

United States v. Mizell, 88 F.3d 288, 297 (5th Cir.

1996)).

A prosecutor’s invocation of the defendant’s exercise

of the right to remain silent can potentially implicate

two, distinct constitutional rights—due process, and the

Fifth Amendment privilege against self-incrimination. We

consider each in turn.

A. Due Process

In a series of cases, the Supreme Court has

established that due process prevents the prosecution

from commenting at trial on a criminal defendant’s

silence in response to the Miranda warnings, but that due

process does not prohibit the prosecution from impeaching

a defendant’s trial testimony by referring to the

defendant’s pre-arrest, or post-arrest, but pre-Miranda,

silence. 

In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme

Court held that the Due Process Clause ordinarily

prohibits the use of a defendant’s post-Miranda silence
4Due process also generally prohibits the use of a defendant’s

post-Miranda silence as substantive evidence of guilt. See United

States v. Moreno, 185 F.3d 465, 473 (5th Cir. 1999). The general

rule of Doyle is not absolute, however. For example, the

prosecution can use a defendant’s post-Miranda silence to rebut

testimony by the defendant that he cooperated with the police at

the time of his arrest. See United States v. Rodriguez, 260 F.3d

416, 421 (5th Cir. 2001).

5The Doyle court also noted that such silence is not

necessarily probative because it is “insolubly ambiguous.” Doyle,

426 U.S. at 617. But subsequent decisions have made clear that the

“fundamental fairness” rationale was the key feature of Doyle.

E.g., Brecht v. Abrahamson, 507 U.S. 619, 628 (1993) (noting that

Doyle rests on fundamental fairness and finding that pre-Miranda

silence “is probative”); see also Rodriguez, 260 F.3d at 421 n.1

(stating that Doyle’s “‘insolubly ambiguous’ rationale has since

been discarded”).

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to impeach his trial testimony.4 The enduring rationale

of Doyle is that, because the Miranda warnings carry with

them an implicit assurance by the government that it will

not use the defendant’s exercise of the right to remain

silent against him, “it would be fundamentally unfair and

a deprivation of due process to allow the arrested

person’s silence to be used to impeach an explanation

subsequently offered at trial.” Doyle, 426 U.S. at 618.5

Consistent with Doyle’s emphasis on fairness, the Supreme

Court held in two later cases that it does not violate

due process for the prosecution to impeach a defendant’s

testimony by reference to the defendant’s pre-arrest, or

post-arrest, but pre-Miranda, silence. See Fletcher v.
14

Weir, 455 U.S. 603, 604-07 (1982) (post-arrest, preMiranda silence); Jenkins v. Anderson, 447 U.S. 231, 239-

40 (1980) (pre-arrest silence). In Jenkins, the Court

explained that “the fundamental unfairness present in

Doyle” does not exist with respect to the use of prearrest silence on cross-examination because “no

governmental action induce[s] [a defendant] to remain

silent before arrest.” 447 U.S. at 240. The Fletcher

court subsequently rejected the argument that the fact of

arrest was sufficient to trigger Doyle’s fundamental

fairness concern: “In the absence of the sort of

affirmative assurances embodied in the Miranda warnings,

we do not believe that it violates due process of law for

a State to permit cross-examination as to postarrest

silence when a defendant chooses to take the stand.” 455

U.S. at 607; see also United States v. Musquiz, 45 F.3d

927, 930-31 (5th Cir. 1995) (permitting use of preMiranda silence to cross-examine defendant).

Although Fletcher clearly permits the use of a

defendant’s pre-Miranda silence to impeach the

defendant’s trial testimony, the Supreme Court has not
15

specifically decided whether the prosecution violates

Doyle by commenting on the defendant’s pre-Miranda

silence when the defendant does not testify in his own

defense. Given Fletcher’s emphasis on the affirmative

assurances of the Miranda warnings, however, it is clear

that, irrespective of whether the defendant testifies at

trial, the rationale of Doyle applies only to postMiranda silence. See Wainwright v. Greenfield, 474 U.S.

284, 291 n.6 (1986) (noting that “fundamental unfairness”

referred to in Doyle and its progeny “derives from the

implicit assurances of the Miranda warnings”); Combs v.

Coyle, 205 F.3d 269, 280 (6th Cir. 2000) (“[T]he Doyle

line of cases clearly rests on the theory that Miranda

warnings themselves carry an implicit assurance that

silence will not be penalized; actual receipt of the

warnings is key. Therefore, the comment on Combs’s preMiranda silence did not violate due process.”).

Accordingly, because Salinas was not read the Miranda

warnings after he was arrested in this case, the

prosecutor’s comments did not violate Doyle.
6Although the Doyle line of cases focused primarily on due

process, in each of those cases, the prosecution used the

defendant’s silence only to impeach the defendant’s trial

testimony, so the privilege against self-incrimination was

inapplicable. See Jenkins, 447 U.S. at 237-38 (rejecting argument

that use of pre-arrest silence for impeachment violated privilege

against self-incrimination because “impeachment follows the

defendant’s own decision to cast aside his cloak of silence and

advances the truth-finding function of the criminal trial”). As

noted above, Salinas did not testify at trial. 

7We do not read Zanabria as categorically holding that the

prosecution’s use of a defendant’s pre-arrest silence as

substantive evidence can never violate a defendant’s constitutional

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B. The Privilege Against Self-Incrimination

Salinas also argues that the prosecution’s references

to his post-arrest silence violated the Fifth Amendment

privilege against self-incrimination.6 No published

decision of this court has addressed whether the

prosecution can, at trial, introduce substantive evidence

that the defendant remained silent after he was arrested

and taken into custody, but before he was given the

Miranda warnings. This court has previously held that a

prosecutor’s reference to a non-testifying defendant’s

pre-arrest silence does not violate the privilege against

self-incrimination if the defendant’s silence is not

induced by, or a response to, the actions of a government

agent. See United States v. Zanabria, 74 F.3d 590, 593

(5th Cir. 1996).7 Moreover, one unpublished decision of
rights. Indeed, the Zanabria court assumed, without deciding, that

pre-arrest silence could be protected by the Fifth Amendment:

Assuming without deciding that Zanabria’s pre-arrest

silence falls within the reach of “testimonial

communications” protected by the fifth amendment, the

record makes manifest that the silence at issue was

neither induced by nor a response to any action by a

government agent. The fifth amendment protects against

compelled self-incrimination but does not, as Zanabria

suggests, preclude the proper evidentiary use and

prosecutorial comment about every communication or lack

thereof by the defendant which may give rise to an

incriminating inference. We find no error in the use of

this evidence or in the prosecutor’s comments thereon.

74 F.3d at 592.

8Although we do not today decide this constitutional issue, we

expressly decline to endorse the reasoning of the non-precedential

opinion in Garcia-Gil, which appears to have reached a broad

holding on the use of post-arrest silence by simply extrapolating

from Zanabria’s narrow holding on the use of pre-arrest silence on

specific facts.

17

this court has interpreted Zanabria to permit the

substantive use of post-arrest, pre-Miranda silence. See

United States v. Garcia-Gil, 133 F. App’x 102, 108 (5th

Cir. May 27, 2005) (stating that Zanabria “prevents

Garcia-Gil from drawing a distinction based on whether

the silence was used as impeachment evidence or as

substantive evidence of guilt”).

8

In addition, there is a split among the other federal

circuits as to whether a prosecutor’s use of a

defendant’s post-arrest, pre-Miranda silence as
9The Second Circuit has assumed, without deciding, that such

use of a defendant’s pre-Miranda silence is impermissible. See

United States v. Caro, 637 F.2d 869, 876 (2d Cir. 1981).

18

substantive evidence of guilt violates the Fifth

Amendment privilege against self-incrimination. The

Seventh, Ninth, and D.C. Circuits have all squarely held

that it does. See United States v. Velarde-Gomez, 269

F.3d 1023, 1028-30 (9th Cir. 2001) (en banc); United

States v. Whitehead, 200 F.3d 634, 637-39 (9th Cir.

2000); United States v. Moore, 104 F.3d 377, 384-90 (D.C.

Cir. 1997); United States v. Hernandez, 948 F.2d 316,

322-23 (7th Cir. 1991).9 The First and Sixth Circuits

have gone further and have held that the substantive use

of even pre-arrest silence can violate the privilege

against self-incrimination. See Combs, 205 F.3d at 280-

83; Coppola v. Powell, 878 F.2d 1562, 1567-68 (1st Cir.

1989). The Fourth, Eighth, and Eleventh Circuits have,

on the other hand, found the substantive use of postarrest, pre-Miranda silence during the prosecution’s

case-in-chief permissible. See United States v. Frazier,

408 F.3d 1102, 1109-11 (8th Cir. 2005); United States v.
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Rivera, 944 F.2d 1563, 1567-68 (11th Cir. 1991); United

States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985).

We need not decide this constitutional question

today. Because this circuit’s law remains unsettled and

the other federal circuits have reached divergent

conclusions on this issue, even assuming that the

prosecutor’s comments were improper, Salinas cannot

satisfy the second prong of the plain error test—that the

error be clear under existing law. See United States v.

Bennett, 469 F.3d 46, 50 (1st Cir. 2006) (“In light of

conflicting case law, any error that might have been

committed by the district court was not ‘obvious,’ and

therefore not plain error.”); United States v. Thompson,

82 F.3d 849, 856 (9th Cir. 1996) (“Because of the circuit

split, the lack of controlling authority, and the fact

that there is at least some room for doubt about the

outcome of this issue, we cannot brand the court’s

failure to exclude the evidence ‘plain error.’”)

(internal footnote omitted). Accordingly, Salinas cannot

establish plain error, and he is therefore not entitled

to relief on this claim.
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III. Sufficiency of the Evidence

Salinas’s remaining argument is that the evidence at

trial was insufficient to establish that he knowingly

possessed the firearms that were found in the Yukon.

Where, as in this case, the defendant moves for a

judgment of acquittal at the close of the government’s

case, but fails to renew the motion at the close of all

evidence, the court applies a stricter standard to a

sufficiency of the evidence challenge. United States v.

Green, 293 F.3d 886, 895 (5th Cir. 2002); United States

v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988). In such

cases, the court reviews the evidence only to determine

whether there has been a manifest miscarriage of justice,

which occurs only when the record is devoid of evidence

of guilt. Green, 293 F.3d at 895; Ruiz, 860 F.2d at 617.

To convict Salinas, the government had to prove (1)

that Salinas had a prior felony conviction; (2) that he

possessed a firearm; and (3) that the firearm traveled in

or affected interstate commerce. See United States v.

Guidry, 406 F.3d 314, 318 (5th Cir. 2005). The court

correctly charged the jury that possession could be
21

actual or constructive. Constructive possession can be

established by showing (1) ownership, dominion or control

over an item; or (2) dominion or control over the place

where the item is found. See United States v. De Leon,

170 F.3d 494, 496 (5th Cir. 1999). Possession may be

proved by circumstantial evidence. Id. Where there is

joint occupancy or control, however, the government must,

in addition to showing control over the place where the

item was found, present evidence to support at least a

plausible inference that the defendant knew of the item

itself. See id. at 497.

Salinas argues that the record is devoid of evidence

that he knew that the firearms were in the Yukon. As the

government asserts, however, there was evidence in the

record to support an inference that Salinas possessed the

firearms and knew that they were in the Yukon. Contrary

to his defense at trial, Salinas initially claimed that

he was in the process of purchasing the Yukon, and one of

the firearms was found within reach of the driver’s seat,

where Salinas was sitting. Moreover, two days after his

arrest, Salinas attempted to claim property—specifically,
10In this regard, it is significant that one of the weapons was

found between the driver’s seat and the center console, underneath

a paper bag containing $3,397 in cash.

22

his “money and other stuff”10—from the Yukon at the police

station’s property room. This evidence together was

easily sufficient for a jury to conclude that the

government satisfied its burden of proof. In addition,

the prosecution introduced substantial evidence to rebut

Salinas’s proffered defense at trial. Accordingly, we

find that there was sufficient evidence to support

Salinas’s conviction.

CONCLUSION

For the reasons stated above, we AFFIRM Salinas’s

conviction.

AFFIRMED.