FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50041

Plaintiff-Appellee, D.C. No.

v.  CR-06-00281-

WQH-1 ELIDE T. CARUTO,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted

February 5, 2008—Pasadena, California

Filed May 12, 2008

Before: Susan P. Graber and Marsha S. Berzon, Circuit

Judges, and Claudia Wilken,* District Judge.

Opinion by Judge Wilken

*The Honorable Claudia Wilken, United States District Judge for the

Northern District of California, sitting by designation. 

5223
COUNSEL

Timothy A. Scott, San Diego, California, for the defendantappellant. 

Lawrence A. Casper and Neville S. Hedley, Assistant United

States Attorneys, San Diego, California, for the plaintiffappellee. 

OPINION

WILKEN, District Judge: 

Elide Caruto was convicted of one count of importation of

cocaine in violation of 21 U.S.C. §§ 952 and 960 and one

count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841. She argues that her trial was fundamentally unfair because the district court allowed the

prosecution to emphasize in its closing argument omissions in

the brief post-arrest statement she gave before invoking her

Miranda rights. This closing argument, she contends, improp5226 UNITED STATES v. CARUTO
erly penalized her for cutting the interview short by exercising

her Miranda rights. We hold that the prosecutor’s argument,

emphasizing omissions from Caruto’s post-arrest statement

that exist only because she invoked her right to counsel under

Miranda, constitutes a violation of Caruto’s right to due process.

I.

On the evening of February 6, 2006, Caruto was arrested at

the Calexico, California port of entry when Customs and Border Protection officers discovered, in the gas tank of her truck,

thirty-two packages containing a total of seventy-five pounds

of cocaine. Late that night or early the next morning, Immigration and Customs Enforcement Special Agents Matthew

Kelley and Tim Ballard interviewed Caruto. 

After the agents read Caruto her Miranda rights, she signed

a waiver and agreed to make a statement. Five to seven minutes later, Caruto invoked her right to counsel, and the interview ended. The only record of the interview is a set of

contemporaneous handwritten notes taken by Kelley. The

notes were altered in at least two places. 

At trial, the prosecution called Kelley as a witness. The

prosecutor asked, “What did she tell you about the truck?”

Kelley responded that Caruto told the agents “that she had

lent the truck to unknown individuals in Mexicali, three to

four weeks prior to her arrest. She said she received the vehicle on that date and that she was going to drive the vehicle to

Los Angeles. She said she believed she was helping her

friend.” On cross-examination, Kelley testified that Caruto

had denied knowledge of the cocaine in the truck. 

Defense counsel also challenged Kelley’s testimony that

Caruto told him “that she was actually going to drive to LA.”

Counsel asked, “[I]sn’t the fact that she said that she was told

to go but that she wasn’t really going?” Kelley replied, “I

UNITED STATES v. CARUTO 5227
understood it that she was going to be driving to LA.” Counsel confronted Kelley with his notes of the statement. Kelley

originally recorded, “Received truck today. Was going to

drive to LA to help friend,” but crossed out the word “going”

and replaced it with “told.” Kelley conceded that, according

to the revised notes, Caruto did not state “that she agreed to

drive to LA or was going to drive to LA.” 

The notes also originally stated, “She let someone borrow

the truck.” Kelley had crossed out “someone” and replaced it

with “unknown persons.” Queried as to whether these persons

were “unknown” to Caruto or to Kelley, Kelley agreed that

“nowhere in those notes does it say Ms. Caruto didn’t know

who.” 

On redirect, the prosecutor asked, “[W]hen you were interviewing the defendant, did she say she was going home to

Calexico?” Kelley testified that she did not. Kelley said Caruto related that “she was told to drive to Los Angeles.” Ballard also testified he understood that “unknown individuals

. . . had told her to drive that vehicle to Los Angeles.” 

The only other witnesses for the prosecution were the agent

who referred Caruto to secondary screening at the border

crossing, the agent who inspected Caruto’s truck at secondary

screening, the officer who discovered the cocaine in Caruto’s

truck, an agent who testified about the value of the cocaine,

and an agent who testified about the manner in which the

cocaine was concealed in the truck. 

Caruto was the first defense witness. She testified that, the

night before her arrest, she received a phone call from her

friend Elisa. Caruto testified she told Elisa that, the next day,

she would be in Mexicali, a town in Mexico contiguous to

Calexico, the town in California in which Caruto lived. Caruto testified that Elisa asked, “[A]re you still selling the

truck? And I said, yes. And then she said, because my

brother-in-law wants to buy it.” When asked if Elisa had ever

5228 UNITED STATES v. CARUTO
seen the truck before, Caruto testified, “Three weeks before

this happened, she went to my apartment in Calexico, and she

borrowed it and took it to — they went to move some stuff

in Mexico.” Caruto further testified that Elisa’s brother-in-law

Jose Jimenez had been with Elisa when she borrowed the

truck. 

Caruto testified that, after she showed Jimenez the truck in

Mexicali the next day, he told her he was interested in purchasing it and asked if he could “try it” and if he could take

it to a mechanic. Later that afternoon, Jimenez met Caruto to

return the truck and told her that he wanted to buy it. Jimenez

said that he would pay her $1,000 for the truck right away and

he would pay her the rest in Los Angeles. He asked Caruto

if she was going to Los Angeles, and she told him that she

was going to Calexico. Caruto testified that she did not agree

to take the $1,000 and that she was not planning to drive to

Los Angeles. Caruto further testified that she had to return to

Mexicali to see her doctor at 9:00 the next morning. 

Caruto testified that nothing seemed out of the ordinary

about the truck. She proceeded to the border. She also testified that, following her arrest, she attempted to get in touch

with Elisa and Jimenez but was not able to reach them. She

never heard from them again.

On cross-examination, the prosecutor asked Caruto if she

had given her truck to Elisa and Jimenez before the day that

she was arrested. She again explained that she had given it to

them three weeks earlier but that she had gotten it back that

same day. When questioned about Jimenez’s offer of $1,000

on the day of her arrest, Caruto testified that he wanted to

give her $1,000 “to reserve the car.” Caruto also testified, “He

didn’t want me to drive it to Los Angeles[.] He asked, are you

going to Los Angeles.” The defense called six other witnesses, all of whom corroborated various parts of Caruto’s

testimony. 

UNITED STATES v. CARUTO 5229
The prosecution began its closing argument by noting that

there was no dispute that Caruto was driving the truck or that

the truck contained the cocaine. “What is in dispute,” the

prosecution argued, “is whether the defendant knew that there

was cocaine, 75 pounds of cocaine in the gas tank of her

truck.” The prosecution went on to argue that

the defendant knew. And how do we know that she

knew? Well, let’s look at what she said to Agent

Kelley and Agent Ballard at the port of entry on the

date of her arrest. What did she say about the truck?

She said she owned the truck for approximately one

year and that she had given it away to unknown individuals — unknown individuals three weeks to a

month prior to the date of her arrest, that she got it

back that day, the day of her arrest, and was told by

these unknown individuals to drive the truck to Los

Angeles. Drive a truck loaded with 75 pounds of

cocaine in the gas tank to Los Angeles. Ladies and

gentlemen, that’s how you know. She didn’t say that

it was Jose Jiminez,[1] and by the way, here’s his

phone number because I just spoke to him. 

The defense objected, citing Doyle v. Ohio, 426 U.S. 610

(1976). The court overruled the objection. The prosecutor

continued: 

She didn’t say it was Jose Jiminez who gave her the

truck, and by the way, here’s his phone number

because I just spoke to him a few hours ago[2] . . . She

didn’t say I was selling the truck. No, what she said

to agents Kelley and Ballard was that unknown individuals had given her — or had taken her truck three

1Throughout the transcript, this name is spelled “Jiminez.” In their

briefs, both parties spell it “Jimenez.” 

2Defense counsel requested a continuing objection, and the court

instructed him not to continue to object. 

5230 UNITED STATES v. CARUTO
weeks to a month earlier and that she got it back that

day and was told to drive it to Los Angeles. 

The defense agreed that the central question for the jury to

decide was whether Caruto knew that the cocaine was in the

truck. However, counsel questioned the credibility of Kelley’s

testimony regarding Caruto’s post-arrest statement, noting the

changes he made to his notes following the interview. 

In rebuttal, the prosecution argued that Caruto’s “statement

at the port of entry made no sense, just like her testimony the

other day made no sense. She was lying on both occasions.”

The prosecutor urged the jurors to question why the government did not have a more detailed statement from Caruto. In

particular, he argued that the jury should ask,

Why, at the port of entry, did she not say someone

or some unknown person who borrowed my truck is

Jose Jiminez, and here’s his phone number?[3] . . .

Here is his phone number. I just spoke to him, and

this is the man who had my truck but a few hours

ago. This is the man who must have put the cocaine

in my truck. Why didn’t she say that?[4]

Why didn’t she say I’m going home to Calexico,

and he thinks I’m going home to Calexico? No, she

said I was told to go to LA. Her stories don’t make

sense. Her story didn’t make sense at the port of

entry. It makes no sense now. Be guided by your reason and common sense. Her testimony doesn’t add

up. 

After the jury left to deliberate, the defense again raised its

3At this point, the defense again objected based on Doyle, and the court

again overruled the objection. 

4Again, the defense objected, and the court overruled the objection. 

UNITED STATES v. CARUTO 5231
Doyle objection and moved for a mistrial. The court denied

the motion.

During the first day of deliberations, the jury sent a note to

the court asking “to review Agent Kelley’s interrogation

report on Ms. Caruto.” The jury was not permitted to see Kelley’s notes because they had not been received in evidence.

After deliberating for approximately one-and-one-half days,

the jury found Caruto guilty on both counts of the indictment.

The court sentenced Caruto to 168 months’ imprisonment. 

II.

We review de novo whether references to a defendant’s

silence following the administration of Miranda warnings

violate her right to due process under Doyle. United States v.

Pino-Noriega, 189 F.3d 1089, 1098 (9th Cir. 1999). Doyle

error requires reversal unless the prosecution demonstrates,

beyond a reasonable doubt, that the error was harmless.

United States v. Baker, 999 F.2d 412, 416 (9th Cir. 1993). 

III.

[1] In Doyle, the Supreme Court noted: 

“When a person under arrest is informed, as

Miranda requires, that he may remain silent . . . , it

seems . . . that it does not comport with due process

to permit the prosecution during the trial to call

attention to his silence at the time of arrest and to

insist that because he did not speak about the facts

of the case at that time, as he was told he need not

do, an unfavorable inference might be drawn as to

the truth of his trial testimony.” 

426 U.S. at 619 (alteration omitted) (quoting United States v.

Hale, 422 U.S. 171, 182-83 (1975) (White, J., concurring in

the judgment)). The Court held that “the use for impeachment

5232 UNITED STATES v. CARUTO
purposes of [a defendant’s] silence, at the time of arrest and

after receiving Miranda warnings, violate[s] the Due Process

Clause.” Id. Following Doyle, this court has held that a “defendant who has received Miranda warnings can, thereafter,

remain silent without running the risk that the prosecutor will

comment upon that fact.” Leavitt v. Arave, 383 F.3d 809, 827

(9th Cir. 2004) (per curiam) (footnote omitted) (citing Doyle,

426 U.S. at 617-18). 

In Anderson v. Charles, 447 U.S. 404 (1980) (per curiam),

the Supreme Court declined to extend Doyle to a situation in

which the defendant did not invoke his Miranda rights, but

waived them and gave a post-arrest statement inconsistent

with his trial testimony. The Court held, “Doyle does not

apply to cross-examination that merely inquires into prior

inconsistent statements. Such questioning makes no unfair use

of silence, because a defendant who voluntarily speaks after

receiving Miranda warnings has not been induced to remain

silent.” Id. at 408. In United States v. Ochoa-Sanchez, 676

F.2d 1283, 1287 (9th Cir. 1982), another case in which the

defendant did not invoke his Miranda rights, this court held

that the prosecution’s probing on cross-examination of the

defendant’s post-arrest statements that were inconsistent with

his trial testimony did not require reversal because the prosecution did not invite a conviction from the defendant’s

silence. 

[2] We address for the first time the application of this line

of cases to a situation in which a defendant makes a limited

statement and then invokes her Miranda rights. Although neither the Supreme Court nor this court has addressed such a

circumstance, we hold that the general principles in the existing case law compel the conclusion that Doyle prohibits the

prosecutor’s argument in this case. 

In Charles, the case in which the Supreme Court declined

to extend the reach of Doyle, the defendant was arrested while

in possession of the victim’s car. 447 U.S. at 404. Charles

UNITED STATES v. CARUTO 5233
never invoked his Miranda rights. Instead, Charles waived his

Miranda rights and told the arresting officer that he had stolen

the car from the street in a specific area. Id. at 405. At trial,

Charles testified that he had stolen the car from a parking lot

approximately two miles from the area he originally identified. Id. The Supreme Court found “no unfair use of silence”

when the prosecution questioned Charles about the discrepancy in his story, “because a defendant who voluntarily

speaks after receiving Miranda warnings has not been

induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.” Id. at

408. In Charles, the prosecutor did not question the defendant

about, or argue about, an omission. The prosecutor asked only

about the conflict between Charles’ two accounts of where he

stole the car, one at the time of his arrest and the other at trial.

In Ochoa-Sanchez, the defendant was arrested when heroin

was discovered in his car at a border crossing. 676 F.2d at

1284. At no point did Ochoa invoke his Miranda rights. Id.

at 1286. Rather, he waived his Miranda rights and answered

a Drug Enforcement Administration agent’s questions. Id.

The agent testified that Ochoa stated that the car belonged to

his friend Angel Ortega; Ochoa had driven to Mexico that

morning; and he did not know about the heroin. Id. at 1284.

In response “to questioning designed to discover where

Ortega could be found, defendant told the agent that he lived

in an apartment complex in Santa Ana.” Id.

At trial, Ochoa testified that Ortega had invited him to go

to Tijuana with Ortega and his friend. Id. at 1285. When they

arrived in Tijuana, the three men went to a bar, but Ochoa

wanted to leave. Ortega gave Ochoa the keys to the car and

told him that he could leave if he wanted to and that Ortega

and his friend would find him the next day or the day after to

get the car. Id. On cross-examination, the prosecutor pointed

out that Ochoa had not told the agent that he had been set up

by Ortega or that he had just left Ortega at a bar in Tijuana

a short time before he was arrested. Id. Ochoa responded that

5234 UNITED STATES v. CARUTO
the agent “didn’t let [him] explain everything,” “didn’t let

[him] speak,” and “told [him] to be quiet.” Id.

The prosecutor argued in closing that Ochoa had not acted

as one would expect an innocent person to act because he did

not say that he had been set up, that he hadn’t been the one

to drive the car to Tijuana, or that the owner of the car was

at a bar in Tijuana. Id. at 1287 n.3. Further, the prosecutor

faulted Ochoa’s explanation that he did not have an opportunity to tell the agent the complete story. Id. The prosecutor

asked, “[W]as the reason that he didn’t have an opportunity,

or that he didn’t want agent Murray to know where Jose

Angel Ortega was right then.” Id.

Because Ochoa “did not remain silent in response to

Miranda warnings,” the court held that any discrepancies

between his post-arrest statement and his trial testimony

raised a question of credibility. Id. at 1286. Therefore, this

court held that “the jury is entitled to all the relevant evidence

bearing on credibility” and that it was proper for the prosecutor to “probe all post-arrest statements and the surrounding

circumstances under which they were made, including defendant’s failure to provide critical details.” Id. Noting that the

“trial transcript reveal[ed] that defendant’s version of the

events of his trip into and return from Mexico [was] quite different from the version he proposed . . . upon his arrest,” the

court held that the fact that Ochoa’s “statements, taken as a

whole, reveal[ed] an inconsistency” was sufficient to justify

this inquiry. Id. at 1286-87 (emphasis added). “Moreover,”

the court held, “we do not believe the prosecutor was attempting to draw meaning from the defendant’s silence. The questioning clearly related specifically to details that defendant

offered at trial but failed to reveal at the time of his arrest.”

Id. at 1287. The court summarized its holding: 

Because defendant’s trial testimony raised an

issue of credibility, which opened to the prosecutor

the circumstances of his post-arrest statement, the

UNITED STATES v. CARUTO 5235
prosecutor’s examination of agent Murray properly

revealed the limits of defendant’s statement at time

of arrest. Similarly, the prosecutor argued vigorously

in closing argument about the credibility of defendant’s trial testimony, but stopped short of inviting

a conviction from his silence. 

Id. at 1287 (footnote omitted). 

Here, we must decide whether the prosecution impermissibly highlighted omissions from Caruto’s post-arrest statement resulting from her decision to invoke her Miranda

rights. For this reason, Charles and Ochoa-Sanchez are distinguishable. As the Ochoa-Sanchez court noted, “[i]f defendant

had invoked his right to remain silent in response to Miranda

warnings, questioning that asked why certain information had

not been revealed would have been improper.” Id. at 1286

(citing Doyle, 426 U.S. 610; Hale, 422 U.S. 171; Bradford v.

Stone, 594 F.2d 1294 (9th Cir. 1979) (per curiam)). Similarly,

the defendant in Charles did not invoke his rights, and the

examination that the Court found permissible explored a specific discrepancy between his post-arrest statement and his

trial testimony. 

[3] In another non-invocation case, this court considered

the effect of a defendant’s decision not to answer one in a

series of questions. In United States v. Lorenzo, 570 F.2d 294

(9th Cir. 1978), the court found that such a “non-answer” did

not constitute “either a total or a selective revocation of [the

defendant’s] earlier waiver of his Fifth Amendment rights.”

Id. at 297-98. Therefore, the court held that Lorenzo’s declination to respond to a single question could not be attributed

to an exercise of his Miranda rights and “it was thus not error

to allow testimony as to that event.” Id. at 298. In contrast,

Caruto did not simply fail to answer a specific question.

Rather, she specifically invoked her Miranda rights and

stopped the interview altogether. Therefore, her silence with

5236 UNITED STATES v. CARUTO
respect to the unasked questions is clearly attributable to her

exercise of those rights. 

This clear invocation also distinguishes Caruto’s case from

United States v. Makhlouta, 790 F.2d 1400 (9th Cir. 1986),

another non-invocation case in which this court held that

cross-examination that “emphasized the inconsistency

between Makhlouta’s post-arrest statements and his entrapment defense at trial” did not constitute Doyle error. Id. at

1403 (emphasis added). In that case, the FBI agent who interviewed Makhlouta following his arrest testified that, after

being advised of his Miranda rights, Makhlouta 

advised that the substance he had given to Special

Agent Miller and myself earlier in the day he knew

in fact was heroin. He knew it was wrong; a violation to be doing this. However, he didn’t anticipate

he would get caught. He wouldn’t say where he had

gotten the heroin from earlier in the day. 

Id. Makhlouta did not invoke his Miranda rights at any time.

[4] In contrast to his post-arrest statement, Makhlouta proceeded on an entrapment theory at trial. This court found that

Makhlouta’s post-arrest “statements do more than neglect to

suggest the defense of entrapment. They in fact offer a single

explanation of his criminal activity . . . that is arguably inconsistent with the entrapment defense since it is evidence of

criminal predisposition.” Id. at 1404. In Caruto’s case, it was

what she did not say in her post-arrest statement, not her statement, that the prosecution used to impeach her. Unlike

Makhlouta, Caruto did invoke her Miranda rights and did not

offer a post-arrest explanation that conflicted with her trial

explanation. 

As the prosecution acknowledged at trial, the alleged

inconsistencies here were omissions attributable to Caruto’s

UNITED STATES v. CARUTO 5237
invocation of her Miranda rights.5

 For example, the trial court

asked the prosecutor whether Caruto had ever been asked

about selling the truck. The prosecution responded, “I don’t

know that the agent necessarily had a chance to. She did

invoke your Honor. But that is a pretty critical detail.” When

the district court noted that “there was no follow-up question,

no clarification at all” about Caruto’s statement that she was

helping a friend, the prosecution explained, “Well, your

honor, I guess the problem there is, the defendant didn’t provide any clarification. She invoked.” Further, on crossexamination, defense counsel asked Kelley if the identity of

the individuals who borrowed the truck was “unknown”

because Caruto wasn’t asked who they were. Kelley

responded, “That’s possible.” 

[5] Caruto could not fully explain why her post-arrest statement was not as detailed as her testimony at trial without disclosing that she had invoked her Miranda rights. Moreover,

the prosecution commented on her failure to explain further

what had happened. This is the type of penalty for exercising

one’s Fifth Amendment rights that Doyle prohibits. 

[6] As stated in Charles, the primary inquiry in cases where

a defendant waives his or her Miranda rights is whether the

prosecutor’s question or argument is “designed to draw meaning from silence” or instead merely “to elicit an explanation

for a prior inconsistent statement.” 447 U.S. at 409. The

Supreme Court noted that “[e]ach of two inconsistent descriptions of events may be said to involve ‘silence’ insofar as it

omits facts included in the other version.” Id. However, the

Court held that “Doyle does not require any such formalistic

5

In addition, one alleged inconsistency, that Caruto was driving to

Calexico and not Los Angeles, was not inconsistent at all according to

Kelley’s own revised interview notes. According to Caruto’s trial testimony, Jimenez told her that he would pay her for the truck in Los Angeles, and according to Kelley’s notes, Caruto had stated that she was told

to drive to Los Angeles. These statements are not inconsistent. 

5238 UNITED STATES v. CARUTO
understanding of ‘silence,’ and we find no reason to adopt

such a view in this case.” Id. Where, as here, it is a defendant’s invocation of her Miranda rights that results in the

omitted facts that create the difference between the two

descriptions, cross-examination based on those omissions

draws meaning from the defendant’s protected silence in a

manner not permitted by Doyle. 

[7] Even in non-invocation cases in this and other circuits,

the differences between the post-arrest statement and the trial

testimony must be “arguably inconsistent”; mere omissions

are not enough to justify cross-examination or argument

regarding what was not said at the time of arrest. See, e.g.,

Ochoa-Sanchez, 676 F.2d at 1286 (inquiry allowed where

statement “may arguably be inconsistent with the trial story”

(internal quotation marks omitted)); United States v. Laury,

985 F.2d 1293, 1303 (5th Cir. 1993) (holding that “prosecutor’s ‘manifest intent’ ” was to comment on defendant’s postarrest silence where no inconsistencies existed and prosecutor

commented on what defendant did not rather than what he did

tell authorities); United States v. Canterbury, 985 F.2d 483,

486 (10th Cir. 1993) (holding that “questions were not

designed to point out inconsistencies” where defendant’s

“post-arrest statements [were] not inconsistent with his

entrapment defense”); Bass v. Nix, 909 F.2d 297, 304 (8th

Cir. 1990) (holding that impeachment was based on silence

where post-arrest statement did not “conflict in any manner

with [defendant’s] trial testimony” because the “only relevant

post-arrest conduct was his silence”); United States v. Casamento, 887 F.2d 1141, 1179 (2d Cir. 1989) (holding that

Charles does not apply where statement to authorities and testimony on direct examination were not inconsistent). Where

a defendant has invoked her Miranda rights, it is even more

important that the distinction between inconsistency and

omission be carefully observed. Here, Caruto’s post-arrest

statement and her trial testimony were not inconsistent. 

[8] The prosecutor’s argument emphasized omissions from

Caruto’s post-arrest statement that resulted from her invocaUNITED STATES v. CARUTO 5239
tion of her Miranda rights and thus invited the jury to draw

meaning from silence. Therefore, we hold, under Doyle, that

allowing the argument violated Caruto’s due process rights. 

IV.

[9] Under the harmless error standard, we must consider

whether it is clear beyond a reasonable doubt that the jury

would have returned a verdict of guilty even without the prosecutor’s impermissible argument. United States v. Hasting,

461 U.S. 499, 510-11 (1983). “The burden of proving a constitutional error harmless beyond a reasonable doubt rests

upon the government.” United States v. Velarde-Gomez, 269

F.3d 1023, 1035 (9th Cir. 2001) (en banc) (citing Chapman

v. California, 386 U.S. 18, 24 (1967)). When addressing comments on silence, we consider in turn 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.”

Id. at 1034 (internal quotation marks omitted). 

[10] With regard to the first factor — the extent of the comments — we note that of the five-and-one-half pages of transcript of the prosecutor’s closing argument, approximately

one-and-one-half pages were used to attack the credibility of

Caruto’s testimony based on what she did not say in her postarrest statement. In its rebuttal argument, the prosecution

again spent a considerable amount of time discussing the

omissions from Caruto’s post-arrest statement. The prosecution explicitly argued that Caruto would have told the agent

various other things if she were indeed innocent. 

[11] The government argues, however, that in assessing

prejudice, we should not consider most of the prosecutor’s

discussion of Caruto’s omissions. According to the government, Caruto only objected to “two discrete comments” in the

prosecutor’s closing and rebuttal arguments, so only those

comments should be considered in the harmless error analy5240 UNITED STATES v. CARUTO
sis. In fact, Caruto entered a continuing objection and was

instructed by the court to stop objecting. We therefore consider the whole of the prosecutor’s commentary on Caruto’s

silence and conclude that it was extensive. The first VelardeGomez factor is therefore satisfied. 

[12] As to the second factor — whether the inference from

silence was stressed to the jury — we conclude that it was.

The parties agree that the central question in this case was

whether Caruto knew that the drugs were in her truck.

Because she testified at trial and explained how the cocaine

could have been placed there without her knowledge, Caruto’s credibility became a key issue, as demonstrated by the

parties’ closing arguments. 

[13] With regard to the third factor — other evidence of

Caruto’s guilt — there was some such evidence, but all of it

was circumstantial. In addition to the agents’ testimony and

Caruto’s statements, the prosecution presented evidence that

the truck could not hold a significant amount of gas and

argued that the truck would not have made it to Los Angeles.

However, there was no evidence that Caruto would not have

made it to her home in Calexico, where she testified she was

going, on the amount of gas in the tank. The prosecution also

presented evidence that Caruto had been stopped at the border

five months earlier driving a different car that contained a

false compartment. The compartment was empty at that time,

and there was no evidence that the car had ever crossed the

border, before or since. Finally, the government presented testimony and argument that it is unlikely that a drug dealer

would use a “blind mule” to carry drugs worth over $1 million dollars. 

[14] Where the case against a defendant rests on circumstantial evidence and the defendant has “offered ‘plausible

innocent explanations’ . . . ‘credibility [is] of utmost importance.’ ” Velarde-Gomez, 269 F.3d at 1035 (quoting United

States v. Foster, 227 F.3d 1096, 1101 (9th Cir. 2000)). ThereUNITED STATES v. CARUTO 5241
fore, a constitutional error that goes directly to the defendant’s

credibility usually is not harmless where the defendant’s theory of the case is plausible, even if it is not particularly compelling. Id. The third Velarde-Gomez factor therefore supports

a finding of prejudice.

[15] Further, circumstances surrounding the jury’s deliberation demonstrate that the error was not harmless. The jury

asked to see a copy of Kelley’s written report, demonstrating

that it was concerned with Caruto’s post-arrest statement. The

jury deliberated for approximately one-and-one-half days

after only one-and-one-half days of evidence. “Longer jury

deliberations ‘weigh against a finding of harmless error

because lengthy deliberations suggest a difficult case.’ ” Id. at

1036 (quoting United States v. Varoudakis, 233 F.3d 113, 126

(1st Cir. 2000)).

V.

[16] In these circumstances, allowing the prosecutor to

emphasize the omissions in Caruto’s post-arrest statement and

to argue that those omissions were inconsistent with her trial

testimony penalized her for invoking her Fifth Amendment

right to remain silent. Therefore, we reverse Caruto’s conviction and remand for a new trial.6

REVERSED and REMANDED. 

6We need not reach Caruto’s alternative arguments for reversal. 

5242 UNITED STATES v. CARUTO