REVISED December 18, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40472

c/w No. 12-40477

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE JULIAN ANDAVERDE-TIÑOCO

Defendant-Appellant

------------------------------------------------------------------------------------------

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE JULIAN ANDAVERDE-TIÑOCO, also known as Julian RodriguezHernandez

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

December 17, 2013

Lyle W. Cayce

Clerk

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A jury found Jose Julian Andaverde-Tiñoco guilty of illegal reentry

subsequent to removal after conviction of an aggravated felony, in violation of 

8 U.S.C. § 1326(a) and (b). The district court sentenced him to 70 months of 

imprisonment and three years of supervised release. It also revoked a 

previously imposed term of supervised release and sentenced him to eight 

months of imprisonment, four months of which were to run consecutively and 

four concurrently to the 70-month sentence, for a total of 74 months. He 

appeals. For the reasons that follow, we AFFIRM his conviction and sentence.

I.

On March 9, 2011, United States Border Patrol agent Carlos Ortega 

observed four individuals attempting to make their way north from the Rio 

Grande. Ortega called two other agents, Luis Garza and Ernest Granado, to 

the scene. The agents detained and handcuffed the individuals, including 

Defendant-Appellant Jose Julian Andaverde-Tiñoco (“Andaverde-Tiñoco”). 

According to Andaverde-Tiñoco’s testimony on cross-examination, the agents 

read him his Miranda rights in Spanish while in the field.

Granado transported the individuals by car to a nearby Border Patrol 

station. Granado testified that, during the ride, one of Andaverde-Tiñoco’s 

companions said that the companions had been “beaten and robbed” on the 

Mexican side of the river but did not specify when or where that had happened

or mention anything about being forced to cross the river. Granado also 

testified that there were no marks or indications of recent physical abuse on 

any of the individuals. Granado did not follow up on this information, pass it 

along to the other agents, or write any report.

At the station, the four companions were processed, and the other three 

were granted voluntary returns to Mexico. Andaverde-Tiñoco was not eligible 

for a voluntary return because of his criminal and immigration history, so he 

was processed as a criminal alien. Agent Eron Hernandez testified that he 

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interviewed Andaverde-Tiñoco at the station and that the first thing he did 

was read Andaverde-Tiñoco his Miranda rights in Spanish. A written record

of the interview—which Hernandez prepared and Andaverde-Tiñoco read, 

approved, and signed—showed that Andaverde-Tiñoco admitted that he was a 

Mexican citizen, that he had entered the United States on March 9, 2011 by 

swimming across the Rio Grande, that he had previously been deported or

removed from the United States and never applied for permission to return, 

and that he did not fear any persecution or torture if he were to be removed to 

Mexico. According to Hernandez’s testimony, Andaverde-Tiñoco did not 

mention that he had been robbed on the other side of the Rio Grande, nor did

other agents mention to Hernandez that any of Andaverde-Tiñoco’s 

companions had claimed to have been robbed.

A one-count indictment charged Andaverde-Tiñoco with illegal reentry

subsequent to removal after conviction of an aggravated felony, in violation of 

8 U.S.C. § 1326(a) and (b). The government also moved to revoke a previously 

imposed term of supervised release that resulted from a prior illegal-reentry 

conviction.

At trial, Andaverde-Tiñoco stipulated to the elements of the offense, yet 

presented the defense that he reentered under duress and hence was not 

criminally responsible for his actions. Andaverde-Tiñoco called border agent 

David Montoya, who testified that he had interviewed the other individuals 

and that one of them had said they had been robbed before crossing. 

Andaverde-Tiñoco testified and described how, on the day of the arrest, he and 

three friends were driving in Mexico when armed men stopped them and

robbed them of their vehicle and money. He further testified that the men 

brought him and his friends to the river and told them to cross or be shot, that 

he begged the men not to make him cross because he would be sent to prison, 

and that he crossed the river because he felt he had no choice. He admitted 

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that he did not mention the robbery when initially detained or during transport 

to the station, but then he stated that he told the agents about the robbery 

while they fingerprinted and interviewed him and that the agents did not write 

anything down or record the conversation. 

Approximately two hours after starting deliberations, the jury sent a 

note stating that the jurors were deadlocked at a six-to-six vote. The district 

court proposed that it give an Allen charge to the jury. Andaverde-Tiñoco 

objected—arguing that the jurors had not been deliberating for long, the trial 

was short, and most of the evidence was uncontroverted—and requested a 

mistrial. The district court overruled the objection, denied the motion for a 

mistrial, and sent the Allen charge to the jury. Approximately two-and-a-half 

hours after receiving the charge, the jury found Andaverde-Tiñoco guilty.

At sentencing, Andaverde-Tiñoco attempted to present an affidavit of

Daniel Reyna Flores, one of his companions on the night of the arrest, who 

corroborated most of his story. The government objected. The district court 

refused to admit the affidavit because it was hearsay, but allowed the 

investigator who obtained the affidavit to testify as to some of the statements 

Reyna Flores made to him, including that he had been forced across the river. 

Andaverde-Tiñoco pleaded “true” to the facts alleged in the petition for

revocation of supervised release. The district court sentenced him to 70 months 

of imprisonment and three years of supervised released. It also revoked the 

previously imposed term of supervised release and sentenced him to eight 

months of imprisonment, four months of which were to run consecutively to 

the 70-month sentence, for a total of 74 months. Andaverde-Tiñoco timely 

appealed the conviction and sentence.

II.

Andaverde-Tiñoco argues first that the district court abused its 

discretion by giving an Allen charge to the jury. The relevant inquiry on appeal 

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is whether: (1) any semantic deviation from approved Allen-charge language 

was so prejudicial that it requires reversal and (2) the circumstances 

surrounding the use of the charge were coercive. United States v. Winters, 105 

F.3d 200, 203 (5th Cir. 1997). Generally, we review the use of an Allen charge 

for abuse of discretion. Id. Where a defendant does not object to its use, review 

is for plain error. United States v. Hitt, 473 F.3d 146, 153 (5th Cir. 2006). The

government argues that Andaverde-Tiñoco’s objection to the charge in the 

district court failed to preserve his challenge on appeal. “A party must raise a 

claim of error with the district court in such a manner so that the district court 

may correct itself and thus, obviate the need for our review.” United States v. 

Gutierrez, 635 F.3d 148, 152 (5th Cir. 2011) (internal quotation marks and 

footnote omitted). “[T]he touchstone is whether the objection was specific 

enough to allow the trial court to take testimony, receive argument, or 

otherwise explore the issue raised.” United States v. Burton, 126 F.3d 666, 673 

(5th Cir. 1997). 

Andaverde-Tiñoco objected to the Allen charge as follows:

As the Court is aware, this is a very short trial. Most of it was completely 

uncontroverted. The controverted evidence is extremely short, and the 

fact that the jurors already said that they couldn’t reach a verdict and 

they’re divided numerically six to six, your Honor, I believe an Allen 

charge would not be appropriate at this time, and we ask for a mistrial.

Andaverde-Tiñoco cites United States v. Montalvo, 495 F. App’x 391, 392 n.2 

(5th Cir. 2012) (unpublished), to argue that a general objection to an Allen

charge that does not mention the language itself is sufficient to preserve that 

issue for appeal. However, our unpublished Montalvo decision is inapposite. 

There, although the government argued that Montalvo had not objected to the 

language of the Allen charge, Montalvo himself did not make the language 

argument on appeal. Thus, the court looked only to the circumstances of the 

charge, an objection that the court found Montalvo had adequately made 

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below. Id. at 392-93 & n.2; cf. Hitt, 473 F.3d at 153 & n.5 (reviewing for plain 

error where defendant objected to charge in toto but not to language 

specifically); United States v. Hill, 334 F. App’x 640, 645 (5th Cir. 2009)

(unpublished) (reviewing language for plain error where objection to charge 

did not include objection to its language). The objection does not reference the 

language of the charge, so the district court “could not have understood,”

Gutierrez, 635 F.3d at 152, that Andaverde-Tiñoco wanted additional or 

adjusted language included in the charge, particularly because the district 

court used the language from the then-applicable Fifth Circuit Pattern Jury 

Instructions. FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS (CRIMINAL), § 1.45 

(West 2001). However, the objection does directly address the coerciveness of 

the charge under the circumstances and thus preserves that issue for appeal. 

Therefore, we review the language of the charge for plain error and the use of 

the charge for abuse of discretion.

A.

Under the first prong of the Allen analysis, we inquire whether any 

semantic deviation from approved Allen-charge language was so prejudicial 

that it requires reversal. Winters, 105 F.3d at 203. As stated above, we review 

the language of the charge in this case for plain error. To prevail under plain 

error, an appellant must show a forfeited error that is clear or obvious and that 

affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 

(2009). If he makes such a showing, we have the discretion to correct the error, 

but only if it seriously affects the fairness, integrity, or public reputation of 

judicial proceedings. Id. In reviewing jury instructions, “plain error occurs only 

when the instruction, considered as a whole, was so clearly erroneous as to 

result in the likelihood of a grave miscarriage of justice.” United States v. 

Garcia, 567 F.3d 721, 728 (5th Cir. 2009) (internal quotation marks and 

citation omitted). 

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Here, the language of the modified Allen charge was almost identical to 

the charge found in the then-applicable 2001 Pattern Jury Instructions, a fact 

we previously have noted in upholding Allen charges. See United States v. 

Allard, 464 F.3d 529, 536 (5th Cir. 2006). The only modification was the 

addition of a sentence that reminded the jury not to reveal the exact numerical 

breakdown of its voting, an addition that Andaverde-Tiñoco does not challenge.

Instead, Andaverde-Tiñoco argues that the charge was unbalanced because it 

focused on the government’s burden of proof on the elements of the illegal entry 

offense, which Andaverde-Tiñoco had conceded, and did not address his burden 

of proof on the duress defense.

The failure to include additional language about the duress defense was 

not a clear or obvious error. Andaverde-Tiñoco acknowledges that the charge 

was equivalent to the then-applicable pattern instruction. The cases that 

Andaverde-Tiñoco cites do not stand for the proposition that failure to include 

additional language in an otherwise-approved pattern instruction constitutes 

error. 

Even if he had shown a clear or obvious error, Andaverde-Tiñoco has not 

shown that the failure to include language about his duress defense affected 

his substantial rights. To make that showing, he must “demonstrate that the 

error affected the outcome of the district court proceedings.” United States v. 

Broussard, 669 F.3d 537, 553 (5th Cir. 2012). Because Andaverde-Tiñoco 

stipulated to the offense,1 his theory for why the jury should find him not guilty 

become only his affirmative duress defense. The Allen charge asked the jurors 

who believed Andaverde-Tiñoco was guilty to reconsider this conclusion in 

1 In the ill-defined posture of a “stipulated” trial, it is especially incumbent on a party 

to adhere to the specificity requirements of Federal Rule of Criminal Procedure 30(d). Cf. 

United States v. Richardson, 713 F.3d 232, 234 n.2 (5th Cir.), cert. denied, 134 S. Ct. 230 

(2013).

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light of the fact that other jurors believed him to be not guilty. The Allen charge 

also instructed the jurors to follow their initial instructions, which included the 

duress defense, and we presume that jurors follow their instructions. See, e.g., 

United States v. Turner, 674 F.3d 420, 430 (5th Cir. 2012). Finally, the jury 

deliberated for more than two hours after receiving the Allen charge, 

presumably on the duress defense because that was the only issue at trial. For 

these independent reasons, Andaverde-Tiñoco has not shown that the district 

court plainly erred in the language of the Allen charge.

B.

Under the second prong of an Allen-charge analysis, we inquire whether 

the circumstances surrounding the use of the charge were coercive. Winters, 

105 F.3d at 203. We evaluate the “totality of the circumstances” surrounding 

the use of the charge in assessing its coercive effect. United States v. Lindell, 

881 F.2d 1313, 1321 (5th Cir. 1989). The district court has “broad discretion to 

evaluate whether an Allen charge is likely to coerce a jury into returning a 

verdict it would not otherwise return.” Allard, 464 F.3d at 536 (internal 

quotation marks and citation omitted). As stated above, we review the use of 

the charge in this case for abuse of discretion. 

Andaverde-Tiñoco argues that the use of the Allen charge after 

approximately two hours of deliberations “sent a strong message that failure 

to reach a verdict was not an option”; that the jury received the charge close to 

midday on a Friday, which “surely raised fears that inability to reach a verdict 

that day would result in the jury’s being called in for deliberations on 

Saturday”; that the jury’s decision to deliberate without taking a lunch break 

suggests that it felt pressure to reach a verdict before the weekend; that 

skipping lunch “created the possibility that some jurors might cave in simply 

because of overwhelming feelings of hunger”; and that the jury reached a 

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verdict only two hours after receiving the charge, which “is strongly suggestive 

of the coercive effect of the Allen charge.”

We have affirmed Allen charges in more stringent circumstances than 

those here. In United States v. Betancourt, 427 F.2d 851, 854 (5th Cir. 1970), 

we affirmed a charge where the trial had begun at 9 a.m. on the day of the 

verdict, the jury did not receive the case until 6:13 p.m., it reported itself 

deadlocked at 8:19 p.m., and it returned its verdict at 10:23 p.m. on a stormy 

night. In United States v. Bottom, 638 F.2d 781, 788 (5th Cir. Unit B Mar. 

1981), we affirmed an Allen charge, explaining: “The jury deliberated another 

three hours after the ‘Allen’ charge was given from 9:56 A.M. to 1:40 P.M., not 

an unduly short amount of time. The time of the day was not late. The day was 

not Friday or the day before a holiday. The weather was not alleged to be 

inclement.” Here, although the district court gave the charge on a Friday, it 

was not late in the day or close to a holiday, and the jury deliberated for about 

two-and-a-half hours after receiving the charge. The timing here also 

presented less potential for coerciveness than it did in Betancourt. Cf.

Montalvo, 495 F. App’x at 393-94 (rejecting challenge to Allen charge that jury 

received less than four days before Christmas because it was not issued on the 

day before a holiday; there was no indication that the jury expressed concern 

about, or that the judge mentioned, the approaching holiday; and the 

circumstances that may have pressured the jury were less extreme than those 

in Betancourt).

Additionally, we have rejected a claim that the jury’s decision to forego a 

meal renders an Allen charge coercive. United States v. Reeves, 892 F.2d 1223, 

1229 (5th Cir. 1990). We have also rejected claims of coerciveness with 

similarly short and even shorter deliberation periods. See Bottom, 638 F.2d at 

788 (charge given after eight hours of deliberation, verdict returned three 

hours after Allen charge); United States v. Scruggs, 583 F.2d 238, 241 (5th Cir. 

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1978) (charge given after four-and-a-half hours of deliberation, verdict 

returned 48 minutes after charge); United States v. Bailey, 468 F.2d 652, 664-

65 (5th Cir. 1972) (charge given after three-and-a-half hours of deliberation, 

verdict returned one-and-a-half hours after charge); Andrews v. United States, 

309 F.2d 127, 129 (5th Cir. 1962) (charge given after one hour and five minutes 

of deliberation, verdict returned 25 minutes after charge). We conclude here 

that Andaverde-Tiñoco has not shown that the district court abused its 

discretion in its use of the Allen charge.

III.

Second, Andaverde-Tiñoco argues that the government improperly 

elicited testimony and argued to the jury that he had remained silent instead 

of immediately informing the agents that he had been forced to cross the river, 

in violation of Doyle v. Ohio, 426 U.S. 610, 619 (1976). Crucial to our ruling, 

Andaverde-Tiñoco did not object to the alleged Doyle violations in the district 

court, hence review is for plain error. See United States v. Garcia-Flores, 246 

F.3d 451, 457 (5th Cir. 2001). Andaverde-Tiñoco must show a forfeited error 

that is clear or obvious and that affects his substantial rights. Puckett 556 U.S. 

at 135. If he makes such a showing, we have the discretion to correct the error, 

but only if it seriously affects the fairness, integrity, or public reputation of 

judicial proceedings. Id.; see also Henderson v. United States, 133 S. Ct. 1121, 

1130 (2013).

A.

Under the first and second prongs of plain error review, we inquire 

whether there was an error that was clear or obvious. As a threshold matter, 

the government argues that “the vast state of the evidence was that Andaverde 

was not read his [Miranda] rights until he arrived at the Border Patrol 

station.” As such, the government contends that commentary on AndaverdeTiñoco’s silence during the ride to the station could not have violated Doyle. To 

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support its argument, the government attempts to explain the following

exchange between the prosecutor and Andaverde-Tiñoco on cross-examination:

Cross-Examination of Andaverde-Tiñoco by Prosecutor

Q: But you said when Border Patrol arrived you hunkered down in the 

field, right?

A: Yes, yes.

Q: And you hunkered down so they wouldn’t see you, didn’t you?

A: Yes.

Q: And they handcuffed you, didn’t they?

A: Yes.

Q: And they read you your rights in Spanish?

A: Yes.

Q: And they placed you in the back of a vehicle?

A: Yes.

The government claims that the prosecutor “simply made a mistake” when 

asking this question and that the question did not differentiate between the 

field and the station, so Andaverde-Tiñoco’s answer was “technically correct.”

This argument is unpersuasive. There is no dispute in the existing record 

over whether the agents read Andaverde-Tiñoco his rights in the field. There 

is no evidence beyond the government’s ipse dixit that the prosecutor made a 

mistake, and the context of the question belies the government’s claim. The 

question came in chronological order after a question about AndaverdeTiñoco’s behavior in the field and before a question about his ride to the station. 

The only persuasive reading of this testimony and exchange is that the agents 

read Andaverde-Tiñoco his rights in the field. Nothing in the record contradicts 

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that (even Agent Hernandez’s affirmative testimony that he read AndaverdeTiñoco his rights at the station) because the prosecutor never confirmed with 

the agents themselves, testifying at trial, if they read the rights in the field. 

We credit the trial record that the agents read Andaverde-Tiñoco his rights in 

the field.

Having testified to that Miranda factual predicate, Andaverde-Tiñoco 

asserts that there were five Doyle violations that occurred during his trial. We 

set them out below and highlight the alleged violations in italics.

Alleged Violation 1: Cross-Examination of Agent Granado by Defense 

Counsel

Q: Now, once you knew that another -- a person among these four people 

was being prosecuted, did you feel it’s your duty as a [sic] officer for 

Border Patrol to report to someone that some people had claimed having 

been victimized before they crossed?

A: Yes. But it was not the defendant that made that statement, so, 

therefore, for me, that would be hearsay, and no, I did not make that 

statement to anybody else.

Alleged Violation 2: Redirect Examination of Agent Granado by Government

Q: You say there’s only one that—only one of the agent—aliens 

mentioned anything about being beaten and robbed?

A: That is correct.

Q: The other three were there, obviously, in the back of the vehicle, 

correct?

A: Yes, sir.

Q: And none of them said anything about it at the time?

A: No, sir.

Q: That would include the defendant?

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A: That is correct.

Alleged Violation 3: Cross-Examination of Andaverde-Tiñoco

Q: At no point did you ever tell any of the agents that you had been robbed 

on the other side, did you, up until the point that you were at the Border 

Patrol station like you’re saying?

A: That’s right, until I was at the Immigration office.

Q: And when they found you in the field, you didn’t go running to them 

at all saying, “Oh help. I need your help. Someone on the other side wants 

to get me,” did you?

A: No.

Alleged Violation 4: Government’s Closing Argument

When they saw the lights of the Border Patrol vehicles, they laid down 

and hid. They didn’t run up to them and say, “Thank God you’re here. 

We needed some help. We got robbed.” No, they hid. When the agents 

shined their flashlights on them, they ran.

So what did the defendant do after he actually got caught here and put 

in the Border Patrol vehicle? He starts joking with the agent. He doesn’t 

say anything about the alleged robbery. 

One of the other aliens that was in the vehicle, he took the opportunity 

to make some sort of claim of a robbery. Didn’t say when or where really, 

but he made a claim. The defendant was right there. He said nothing.

Alleged Violation 5: Government’s Rebuttal Argument

Two Border Patrol agents were dispatched out to the scene, and when 

they were dispatched out to the scene, the defendant hid. They arrested 

him. They put him in the back of their vehicle, and he never once said 

anything to them about being forced. That was another person.

Under Doyle, 426 U.S. at 619, and its progeny, “the use for impeachment 

purposes of [a defendant’s] silence, at the time of arrest and after receiving 

Miranda warnings, violate[s] the Due Process Clause.” “A prosecutor’s or 

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witness’s remarks constitute comment on a defendant’s silence if the manifest 

intent was to comment on the defendant’s silence, or if the character of the 

remark was such that the jury would naturally and necessarily so construe the 

remark.” United States v. Carter, 953 F.2d 1449, 1464 (5th Cir. 1992) (citation 

omitted). However, the Court in Doyle made clear that the government could 

use a defendant’s post-Miranda silence to challenge a defendant who testifies 

to an exculpatory version of events and claims to have told the police that 

version following arrest. Doyle, 426 U.S. at 619 n.11. “We, and other circuits, 

have continued to recognize this ‘open the door’ or ‘reply’ exception to Doyle.” 

United States v. Martinez-Larraga, 517 F.3d 258, 268 (5th Cir. 2008) (citations 

omitted); see also United States v. Rodriguez, 260 F.3d 416, 421 (5th Cir. 2001).

At the same time, the “open the door” exception does not afford the 

government free reign to invoke the defendant’s post-arrest silence. “Although 

the government may use a defendant’s post-arrest silence to impeach 

testimony about the circumstances of an arrest, the government may not then 

argue that the defendant’s silence was inconsistent with his claim of 

innocence.” Rodriguez, 260 F.3d at 421 (citations omitted). In other words, the 

government may not ask the jury to “infer . . . guilt directly from . . . post-arrest 

silence.” Id. When the impeachment exception is not met, the Doyle test “is 

strict; virtually any description of a defendant’s silence following arrest and a 

Miranda warning will constitute a Doyle violation.” United States v. Shaw, 701 

F.2d 367, 382 (5th Cir. 1983); see also United States v. Edwards, 576 F.2d 1152, 

1155 (5th Cir. 1978).

Granado’s statement on cross-examination by defense counsel did not 

violate Doyle. The “manifest intent” of Granado’s response was not to comment 

on Andaverde-Tiñoco’s post-Miranda silence in a way that improperly inferred 

his guilt. See Carter, 953 F.2d at 1464; see also United States v. Clark-Gonzalez, 

530 F. App’x 372, 380 (5th Cir. 2013) (unpublished) (declining to find a Doyle

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error where, among other reasons, the witness’s comment was elicited not by 

the prosecution but by defense counsel); United States v. Moreno, 185 F.3d 465, 

472 (5th Cir. 1999) (stating that, in assessing a Doyle violation, the court seeks 

“to determine whether the remark was a spontaneous comment by the witness 

or a comment prompted by the prosecutor”). Granado’s statement, heard by the 

jury before any reference to Andaverde-Tiñoco’s being given Miranda warnings 

in the field, was not prompted by the prosecutor but by defense counsel on 

cross-examination, and it is best read as a response to a question about why 

Granado did not report the statement of someone other than AndaverdeTiñoco.

Likewise, the prosecutor’s redirect of Granado did not violate Doyle.

Defense counsel’s opening statement implying that Andaverde-Tiñoco had 

immediately informed the agents of his exculpatory story opened the door to

narrow permissible impeachment by the government:

Opening Argument by Defense Counsel

They’re taken to get processed, and you’re going to hear from agents of 

the government that while they’re being taken to the Harlingen station, 

they talked. They talked how they were scared [sic]. They talked that 

they were robbed on the other side, and they talked that they were forced 

to cross.

This opening argument use of the plural pronoun “they” created the false 

impression that Andaverde-Tiñoco and his companions, collectively, promptly 

cooperated and told their duress story and that the agents had failed to 

respond. Additionally, Andaverde-Tiñoco’s cross-examination of Granado 

attempted to undermine his credibility precisely by suggesting that he did not 

report this duress story. Thus, the prosecutor’s redirect of Granado was “a 

permissible attempt to impeach and clarify” defense counsel’s exculpatory 

version of duress and hasty cooperation upon arrest. Rodriguez, 260 F.3d at 

421 n.2.

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The prosecutor’s cross-examination of Andaverde-Tiñoco presents a 

closer question. Defense counsel, on direct examination of Andaverde-Tiñoco, 

first reinforced his opening argument by eliciting proof for the duress story, 

but then specifically elicited that Andaverde-Tiñoco himself had remained 

silent on the ride to the station:

Direct Examination of Andaverde-Tiñoco by Defense Counsel

Q: Did the officer seem interested to hear details about the claim your 

companions have made that they were forced to cross?

A: He was talking to them all along the route, but I never said anything.

Q: Why wouldn’t you have told the officer right then and there, ‘I didn’t 

want to come in. They forced me to come in.’?

A: No, I said that at the Immigration office.

Q: So in the vehicle you didn’t tell the driver?

A: No.

On the one hand, then, the prosecutor’s subsequent questions on crossexamination may have been an attempt to clarify the tension between defense 

counsel’s opening statement and Andaverde-Tiñoco’s direct testimony that 

only his companions spoke on the way to the station. Cf. Rodriguez, 260 F.3d 

at 419-420, 421 n.2 (finding cross-examination question about silence 

permissible where it followed defendant’s direct testimony that implied he had 

told exculpatory story during his initial interrogation). It is determinative, 

however, that Andaverde-Tiñoco testified that he had not said anything on the 

way to the station. In an abundance of caution, and because we find that the 

government’s statements during its closing and rebuttal arguments were clear 

Doyle errors, we assume for purposes of our plain error analysis that the 

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government cross-examination of Andaverde-Tiñoco extended beyond a testing 

of collective cooperation to improper Doyle impeachment.

In other words, whereas the government initially took the permissible 

tack of impeaching Andaverde-Tiñoco’s version of collective cooperation, the 

government went beyond “a permissible attempt to impeach and clarify” once 

Andaverde-Tiñoco delimited his exact version of post-arrest cooperation to his 

companions. Consequently, we conclude that the government improperly 

invoked Andaverde-Tiñoco’s post-arrest silence in this closing-argument 

assertion: “So what did the defendant do after he actually got caught here and 

put in the Border Patrol vehicle? He starts joking with the agent. He doesn’t 

say anything about the alleged robbery. . . . One of the other aliens that was in 

the vehicle, he took the opportunity to make some sort of claim of a robbery. 

Didn’t say when or where really, but he made a claim. The defendant was right 

there. He said nothing.” And the government repeated the error in rebuttal

argument: “They put him in the back of their vehicle, and he never once said 

anything to them about being forced.” In this summation argument, the 

government “directly link[ed] the implausibility of the defendant’s exculpatory 

story to his ostensibly inconsistent post-arrest silence.” Price v. King, 714 F.2d 

585, 588 (5th Cir. 1983). Determinatively, again, the government did so after 

Andaverde-Tiñoco had testified that, unlike his companions, he had not 

cooperated post arrest by telling his exculpatory story on the way to the station

but only later after his second Miranda warning, thus obviating the need for 

further proper impeachment about the time interval between the first and 

second Miranda warnings.

B.

Under the third prong of plain error review, we inquire whether error 

affected a defendant’s substantial rights. “[T]he defendant must demonstrate 

that the error affected the outcome of the district court proceedings.” 

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Broussard, 669 F.3d at 553. Here, the government’s closing and rebuttal 

arguments used Andaverde-Tiñoco’s silence to attack his duress defense, the 

only issue at trial, which resulted initially in a deadlocked jury. See United 

States v. Harp, 536 F.2d 601, 602-03 (5th Cir. 1976) (“Because the prosecutor’s 

comments struck at the jugular of their story, those remarks cannot be 

classified as harmless.”);2 see also United States v. Johnson, 558 F.2d 1225, 

1230 (5th Cir. 1977) (holding same under plain error review and finding “it 

likely that defendant’s expressed desire to remain silent tipped the scales for 

the jury”); United States v. Meneses-Davila, 580 F.2d 888, 895-96 (5th Cir. 

1978) (holding under plain error review that prosecution’s repeated references 

to defendant’s silence in a one-day trial were not harmless, despite defendant’s 

responsive comments on silence). Even though Andaverde-Tiñoco did open the 

door to some exploration of his companions’ post-arrest statements, and even 

though Andaverde-Tiñoco waived his Miranda rights at the station, triggering 

trial-contested testimony about his own cooperation and duress story, we 

cannot say that his duress defense presented a frivolous argument that had no

chance of success such that the Doyle errors did not affect the outcome of the 

proceedings. See Rodriguez, 260 F.3d at 422 (explaining that, in determining 

when a Doyle error is harmless, “[w]hen . . . 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”) (citing Meneses-Davila, 580 F.2d at 893).

2 Circumstances that render Doyle error harmless have defied formulaic precision for 

almost half a century. See, e.g., Williams v. Zahradnick, 632 F.2d 353, 363-65 (4th Cir. 1980) 

(stating that “[p]erhaps more than any other circuit court, the Fifth Circuit has had occasion 

to rule upon the harmfulness of Doyle errors” and collecting Fifth Circuit cases).

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C. 

Under the fourth and final prong of plain error review, if the appellant 

has shown an error that is clear or obvious and affects his substantial rights, 

we may exercise our discretion to correct the error, but only if it seriously 

affects the fairness, integrity, or public reputation of judicial proceedings. The 

Supreme Court recently highlighted the importance of this fourth prong of 

plain error review as an independent criterion that helps guard against any 

potential “floodgates” of plain error corrections. Henderson 133 S. Ct. at 1130; 

see also United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en 

banc) (calling the fourth prong a “stringent” requirement and “declining to 

adopt a blanket rule that once prejudice is found under the [third plain error 

prong], the error invariably requires correction”) (internal citation and 

quotation marks omitted). The Court also has said that “[m]eeting all four 

prongs is difficult, as it should be.” Puckett, 556 U.S. at 135 (citing United 

States v. Dominguez Benitez, 542 U.S. 74, 83 n.9 (2004)) (internal quotation 

marks omitted). Importantly, the burden is on the defendant to demonstrate 

that the error affects the fairness, integrity, or public reputation of judicial 

proceedings. See Broussard, 669 F.3d at 546.

Although there is no exact test for what type of error seriously affects the 

fairness of judicial proceedings, recent case law in which we have addressed 

the fourth prong generally is instructive. In United States v. McCann, 613 F.3d 

486, 503 (5th Cir. 2010), we held that the error seriously affected the fairness, 

integrity, or public reputation of judicial proceedings where the district court 

relied solely on the presentence investigation report to conclude that the 

defendant’s prior manslaughter conviction constituted a “crime of violence” for 

purposes of sentencing, even though the government admitted that all of the 

documents that could have conclusively demonstrated the specific facts of the 

defendant’s manslaughter offense were lost in Hurricane Katrina. In 

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Escalante-Reyes, 689 F.3d at 425-26 (internal quotation marks and citation 

omitted), we found that the district court’s reliance on an anger-management 

justification in increasing the defendant’s sentence directly controverted 

“Congress’s express admonition that imprisonment is not an appropriate 

means of promoting correction and rehabilitation” and thus affected the 

fairness of the proceedings and required reversal. Conversely, in United States 

v. Reyna, 358 F.3d 344, 352-53 (5th Cir. 2004) (en banc), we found that the

denial of a right to allocute at the defendant's third sentencing hearing did not 

affect the fairness, integrity, or public reputation of judicial proceedings, even 

though it otherwise met the first three prongs, because the defendant had been 

given the right to allocute at his original sentencing hearing and at his second 

sentencing hearing, where he was warned that he would be sent back to prison 

for twelve months if he violated the terms of his supervised release. As a final 

example, in United States v. Seale, 600 F.3d 473, 490 (5th Cir. 2010) (en banc), 

we declined to exercise our discretion to correct the district court’s error in 

failing to exclude the defendant’s statement under Miranda because the 

government had presented other strong evidence of guilt, it had been the 

defendant’s primary responsibility to persuade the court to exclude the 

statement, and no miscarriage of justice would occur.

Cognizant that fourth-prong assessments trigger no precise formula, we 

hold that Andaverde-Tiñoco has not met his burden of showing that the Doyle

violations we identify rise to the level of error that seriously affects the 

fairness, integrity, or public reputation of judicial proceedings. First, 

Andaverde-Tiñoco undercut any Doyle claim in his own opening argument 

asserting collective cooperation upon arrest. Second, Andaverde-Tiñoco

reinforced that impression of collective cooperation through his crossexamination probing of Granado, who only responsively commented on

Andaverde-Tiñoco’s silence. Third, the government’s violative summation was 

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based on Andaverde-Tiñoco’s own frank direct-examination acknowledgement

that he did not tell “the officer right then and there, ‘I didn’t want to come in. 

They forced me to come in.’” In other words, Andaverde-Tiñoco not only

proffered in his opening statement his duress defense through alleged 

collective cooperation with law enforcement, but also then on direct 

examination highlighted to the jury that he had not told the officers his 

exculpatory story immediately. In this way, Andaverde-Tiñoco himself drew 

evidentiary focus on the inconsistency between his post-arrest silence and his 

duress defense. The government’s subsequent cross-examination and 

summation were cumulative of evidence affirmatively given to the jury by 

Andaverde-Tiñoco. Finally, Andaverde-Tiñoco did not perceive or object to any

of these exchanges or arguments as a Doyle violation, even in a new trial 

motion pursuant to Federal Rule of Criminal Procedure 33. See Henderson, 133 

S. Ct. at 1130 (explaining that, when courts apply prongs three and four of 

plain error review, “the fact that a defendant did not object, despite unsettled 

law, may well count against the grant of Rule 52(b) relief”). We cannot 

emphasize enough the importance of such prompt intercession, allowing, inter 

alia, a sustained objection, curative instructions, juror voir dire, and especially

isolation of any error and avoidance of it in closing arguments.

Although, for the foregoing reasons, we decline to exercise plain error 

discretion to correct the Doyle errors we particularize, this case highlights the 

risks for the prosecution if it chooses to comment on a defendant’s silence after 

Miranda warnings, even in cases, like this one, where a defense opening 

implies post-arrest cooperation, where the defense then probes and makes 

central the cooperation story, where no Doyle objection is interposed at trial, 

and where, indeed, a defendant himself highlights to the jury as an incongruity 

his post-arrest silence. See Edwards, 576 F.2d at 1155; cf. Wainwright v. 

Greenfield, 474 U.S. 284, 295 (1986) (noting that questions regarding the 

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defendant’s behavior at the time of his arrest might be permissible if “carefully 

framed” to “avoid[ ] any mention of the defendant’s exercise of his 

constitutional rights”). 3

IV.

Third, Andaverde-Tiñoco argues that at sentencing the district court 

erred in refusing to accept the affidavit of Daniel Reyna Flores, one of

Andaverde-Tiñoco’s companions who entered the United States with him. The 

affidavit corroborated the claim that the men were forced to cross the river, 

and Andaverde-Tiñoco offered it to support his request for a downward 

departure based on his claim of duress. The government objected. The district 

court refused to accept the affidavit on the ground that it contained hearsay,

but allowed Andaverde-Tiñoco to call the investigator who obtained the 

affidavit to summarize Reyna Flores’s statements, including that he had been 

forced across the river. Andaverde-Tiñoco argues that the district court erred 

in excluding the affidavit as hearsay because the rules of evidence are not 

applicable in sentencing proceedings. The government argues that the district 

court was exercising its discretion as to admissibility and simply was not 

persuaded that the affidavit was reliable.

A district court has wide discretion to decide what evidence to consider 

or credit at sentencing. United States v. Cantu-Ramirez, 669 F.3d 619, 628 (5th 

3 The dissenting opinion draws attention to several plain error outcomes we issued 

shortly after Doyle, almost forty years ago, especially Meneses-Davila, 580 F.2d at 895-96. 

Leaving aside the fact that those cases focus on harmlessness analysis and do not discuss the 

fourth prong as our recent case law has described it, we endorse Doyle as strongly here but 

perceive crucial fourth-prong distinctions. For example, in Meneses-Davila, we rejected the 

claim that the defendant’s references to his own silence should allow the conviction to stand 

because the prosecution made the first reference to the defendant’s silence at trial. Id. at 895. 

We then explained, “Had defendant’s statement been the first reference in the case to silence, 

the questioning of the agent would probably have been permissible. . . . [T]he defense did not 

initiate the comments on silence, but only responded to the prosecutor’s prior comments made 

during the trial.” Id.

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Cir.), cert. denied, 132 S. Ct. 2759, and cert. denied, 133 S. Ct. 247 (2012). We 

review the decision to reject sentencing evidence for abuse of discretion. See 

United States v. Mitchell, 366 F.3d 376, 379 (5th Cir. 2004). At sentencing, a 

district court “may consider any relevant evidence without regard to its 

admissibility under the rules of evidence applicable at trial, provided the 

information has sufficient indicia of reliability to support its probable 

accuracy.” United States v. Ramirez, 367 F.3d 274, 277 (5th Cir. 2004). Even 

uncorroborated hearsay evidence may be sufficiently reliable for use at 

sentencing. See United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). Thus, 

to the extent that the district court thought itself obligated to exclude the 

affidavit as hearsay, it relied on an erroneous conclusion of law. Id.; see also 

United States v. Jones, 664 F.3d 966, 981 (5th Cir. 2011) (“[I]t is an abuse of 

discretion to rely on erroneous conclusions of law.”) (internal citation and 

quotation marks omitted), cert. denied, 132 S. Ct. 2728 (2012). In excluding the 

affidavit, the district court stated:

Well, I consider a document like that hearsay. So why—if it’s being 

offered for the truth of the matter asserted, why should I accept it . . . as 

evidence . . . ? [A] person who was involved . . . in events leading up to an 

arrest of . . . a person later charged would be prevented from testifying 

to anything that would be hearsay unless it was an exception. I find no 

exception in this case, so the objection is sustained.

Though the record is not conclusive, it appears that the district court 

erroneously did feel obligated to exclude the affidavit as hearsay evidence. 

Even if the district court did abuse its discretion, however, any error was 

harmless. To determine whether an error was harmless, we inquire whether 

the defendant suffered prejudice from the error. Reyna, 358 F.3d at 348; see 

also United States v. Meza, 701 F.3d 411, 425 (5th Cir. 2012). The district court 

allowed the investigator who obtained the affidavit to testify as to some of the 

statements Reyna Flores made to him. The district court noted that it afforded

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some “leeway” with the investigator’s testimony and allowed him to testify, 

over the government’s objection, as to Reyna Flores’s statements that they had 

been forced to cross the river and that Reyna Flores had feared for his life when 

they crossed. The district court concluded that it did not believe either Reyna 

Flores’s statements or Andaverde-Tiñoco’s duress claim, in part due to the lack 

of corroborating evidence. Because the district court heard and considered the 

investigator’s testimony about the relevant portions of the affidavit, including 

the claim that the companions were forced to cross the border, we hold that 

any error in failing to admit the affidavit was harmless.

V.

Fourth, Andaverde-Tiñoco argues that if we vacate his conviction for 

illegal reentry, we should also vacate the revocation of his prior term of 

supervised release and remand for a new proceeding. Because we affirm 

Andaverde-Tiñoco’s conviction and sentence, we need not reach this issue.

The conviction and sentence are AFFIRMED.

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JAMES L. DENNIS, Circuit Judge, dissenting:

I agree with the majority that the government committed multiple 

constitutional violations causing “clear or obvious” legal errors during Jose 

Julian Andaverde-Tiñoco’s criminal trial. I further agree with the majority 

that the government’s violations affected the outcome of Andaverde’s trial and, 

had the government not unlawfully urged the jury to convict Andaverde for 

impermissible reasons, the jury may not have done so. Unlike the majority, 

however, I do not agree that this court of law should tolerate a conviction that 

was obtained in an illegal manner and I would afford a new trial in which 

Andaverde’s guilt or innocence could be determined according to constitutional 

requisites. For the reasons that follow, I respectfully dissent.

I.

A.

After being spotted by Border Patrol in an empty field near the TexasMexico border, Andaverde and several others with him were apprehended. 

The arresting agents transported the detainees by motor vehicle to a nearby 

Border Patrol station. During the ride, one of Andaverde’s companions—but 

not Andaverde—reported that the group was “beaten and robbed” in Mexico, 

on the other side of the Rio Grande River. Once at the station, it was 

discovered that Andaverde had unlawfully entered the United States on prior 

occasions and had been deported. His companions were permitted to return to 

Mexico without further legal proceedings, but he remained detained. He was 

indicted and prosecuted for illegally reentering the United States following a 

prior deportation in violation of 8 U.S.C. § 1326. At trial, Andaverde stipulated 

to all elements of the offense, admitting that he had in fact previously entered 

the United States unlawfully and been deported, but he maintained, pursuant 

to the defense of duress, that he was innocent of illegal reentry, contending 

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that he did not enter into the United States under his own volition this time, 

but rather under threat of force. Testifying in his own defense, he told the jury 

that, while driving on a road in Mexico near the Rio Grande River, he and his 

companions were robbed at gunpoint. The robbers, he testified, took their car 

and money and ordered them to swim across the river, threatening to start 

firing if they did not. Andaverde and his companions followed the orders and 

swam across the river while the robbers escaped with their property. Some 

time after reaching the other side and entering the United States, the group 

was found and arrested in the field. Because Andaverde stipulated to all 

elements of the illegal reentry offense, the only issue for the jury to decide was 

whether to believe his story about entering the United States under duress. If 

the jury believed Andaverde’s story, it would have to acquit. If the jury did 

not, it would have to convict.

B.

As the majority explains persuasively, the government committed 

multiple violations of Doyle v. Ohio, 426 U.S. 610 (1976), during the course of

Andaverde’s short trial. The Doyle rule is simple and should be understood by 

all prosecutors: once the government, acting through an arresting officer, 

informs an arrestee that he has the right to remain silent—see Miranda v. 

Arizona, 384 U.S. 436 (1966)—the government may not then at the criminal 

trial argue to the jury that the defendant’s post-arrest silence is suspicious and 

good reason to disbelieve the story he offers at trial but did not tell the 

arresting officers. Doyle, 426 U.S. at 619-20. “Because it is fundamentally 

unfair simultaneously to afford a suspect a constitutional right to silence 

following arrest and yet allow the implications of that silence to be used against 

him, prosecutorial comment on silence for either substantive or impeachment 

value is constitutionally prohibited.” United States v. Shaw, 701 F.2d 367, 381 

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(5th Cir. 1983) (internal quotation marks omitted); see also United States v. 

Harp, 536 F.2d 601, 603 (5th Cir. 1976) (“[I]t is fundamentally unfair to allow 

an arrested person’s silence following Miranda warnings to be used to impeach 

an explanation subsequently offered at trial.”). 

But that is what happened here. In flagrant disregard of Doyle’s clear 

and longstanding command, the government argued to the jury again and 

again that Andaverde’s story about being robbed in Mexico and forced to cross 

the river at gunpoint should be disbelieved because he failed to announce it 

immediately after he was arrested, instead exercising his right to remain 

silent. In essence, the government urged the jury to convict Andaverde for 

exercising a constitutional right, and that unlawful strategy deprived him of 

the due process the Constitution requires. See Wainwright v. Greenfield, 474 

U.S. 284, 291 (1986) (“Doyle and subsequent cases have thus made clear that 

breaching the implied assurance of the Miranda warnings is an affront to the 

fundamental fairness that the Due Process Clause requires.”).

As explained by the majority, the government’s unlawful trial strategy 

began during Andaverde’s testimony in his defense in which he explained how 

he, allegedly, entered into the United States under duress, was found in the 

empty field, and was read his Miranda rights then, at the time of arrest.1 On 

cross-examination, the government elicited from Andaverde two admissions 

1 The government attempts to challenge in this appeal the fact that Andaverde was 

read his Miranda rights at the time he was arrested, but as the majority explains 

persuasively, the government’s arguments must fail. The government itself elicited from 

Andaverde on cross-examination the fact that he was read his rights in the field—at the time 

of arrest—and the government never attempted at trial to show anything otherwise. The 

government cannot now disclaim the evidence it presented at trial merely because it is 

displeased with the consequences of that evidence.

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that, after being arrested and read his Miranda rights, he remained silent at 

that time and during the ride to the station:

Q: At no point did you ever tell any of the agents

that you had been robbed on the other side, did

you, up until the point that you were at the

Border Patrol station like you’re saying?

A: That’s right, until I was at the Immigration

office.

To make sure the jury did not miss the government’s point, the prosecutor 

asked for more:

Q: And when they found you in the field, you didn’t 

go running to them at all saying, “Oh help. I 

need your help. Someone on the other side 

wants to get me,” did you?

A: No.

And with that, the government had found its theme for the remainder of the 

trial. During the government’s closing statement, the prosecutor hammered 

on the point repeatedly. First:

When they saw the lights of the Border Patrol vehicles, 

they laid down and hid. They didn’t run up to them 

and say, “Thank God you’re here. We needed some 

help. We got robbed.” No, they hid. When the agents 

shined their flashlights on them, they ran.

So what did the defendant do after he actually got 

caught here and put in the Border Patrol vehicle? He 

starts joking with the agent.2 He doesn’t say anything 

about the alleged robbery.

(Emphasis added.) Second:

2 Despite this statement about Andaverde “joking” with the agent during the ride, 

there was no evidence of such presented at trial. We have no indication why the prosecutor 

told the jury that Andaverde was “joking” during the ride.

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One of the other aliens that was in the vehicle, he took 

the opportunity to make some sort of claim of a 

robbery. Didn’t say when or where really, but he made 

a claim. The defendant was right there. He said 

nothing.

(Emphasis added.) Third:

He gets back to the station. . . . He’s given the 

opportunity later to say anything else he wanted to say 

and make a claim of any—that he was a victim of some 

sort of violence. He said nothing.

(Emphasis added). And, fourth:

At least one of the other aliens did. They took the 

opportunity to make the claim again at the station. . . . 

The defendant didn’t even make the claim.

(Emphasis added.)3 After the government finished, Andaverde’s attorney gave 

the defense’s closing statement. Then, the government provided a brief 

rebuttal in which the prosecutor—again—returned to the silence. Fifth:

Two Border Patrol agents were dispatched out to the 

scene, and when they were dispatched out to the scene, 

the defendant hid. They arrested him. They put him 

in the back of their vehicle, and he never once said 

anything to them about being forced. That was another 

person. It was another person who’s not on trial here 

today.

(Emphasis added). Once that summary was over, the trial concluded and the 

jury’s deliberations began.

3 Andaverde does not contend in this appeal that the two references to his silence at 

the station (as opposed to during the ride to the station) constituted independent Doyle

violations. Regardless, they are relevant context to show the extent to which the government 

hammered on the entirety of the defendant’s post-arrest silence, elevating it to the primary 

factor for the jury’s consideration. Additionally, it bears mention that Andaverde testified 

that he did, contra the government’s closing statement argument, explain his duress story at 

the station.

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C.

The deliberations were close. A little over two hours in, the jury reported 

that it was evenly deadlocked, six jurors wanting to convict and six wanting to 

acquit. The court urged the jury to continue working to reach unanimity, and 

a short time later, the jury did. It rejected Andaverde’s duress defense and 

found him guilty.

II.

Despite the repeated and obvious nature of the government’s Doyle

violations, Andaverde’s attorneys did not object at trial to any of them. 

Consequently, this court reviews for plain error. See FED. R. CRIM. P. 52(b). 

Under such review, we will reverse a conviction only for legal error that is 

“clear or obvious” (in other words, “plain”) and affected the outcome of the 

district court proceedings (or put another way, affected the defendant’s 

“substantial rights”). United States v. Olano, 507 U.S. 725, 732-37 (1993); 

United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc). 

If those requirements are met, this court “has the discretion to remedy 

the error—discretion which ought to be exercised only if the error seriously 

affects the fairness, integrity or public reputation of judicial proceedings.” 

Escalante-Reyes, 689 F.3d at 419 (alteration omitted). Our discretion to 

remedy plain error “should be employed in those circumstances in which a 

miscarriage of justice would otherwise result.” Olano, 507 U.S. at 736 (internal 

quotation marks omitted); see also Escalante-Reyes, 689 F.3d at 425 (stating 

that, although “we do not view the fourth prong as automatic if the other three 

prongs are met,” we “should,” however, correct errors “in those circumstances 

in which a miscarriage of justice would otherwise result”) (internal quotation 

marks omitted). 

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Here, the majority holds that the Doyle errors in this case were plain and 

affected the outcome of the trial, and I agree. The remaining question is 

whether we ought to exercise our discretion to remedy the errors. I think we 

ought to.

A.

The majority states that there is no “exact test” for determining how this 

court should exercise its discretion. Ante, at 19. That is undoubtedly true. But 

it is also true that our case law provides ample guidance, and for the reasons 

that follow, fealty to our prior decisions demands that we provide a new trial. 

See Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005) (“Discretion is 

not whim,” and “like cases should be decided alike.”).

Although a number of factors may affect the court’s decision on whether 

to remedy plain error, a core determinant is the severity of the error. See

Escalante-Reyes, 689 F.3d at 423 (“The focus of plain error review should be 

whether the severity of the error’s harm demands reversal . . . .”) (internal 

quotation marks and alterations omitted); see also id. at 440 n.25 (Smith, J., 

dissenting) (“[T]he degree to which the second and third prongs have been met 

[may] influence[] a fourth-prong analysis. There may be a case in which, for 

example, an error that is particularly obvious to the district judge and affects 

substantial rights to a great degree is thereby likely to meet the fourth 

prong.”).4 And, the Doyle violations here were severe for several reasons.

First, there is the obviousness of the violations. Doyle prohibits the 

government from asking the jury to infer guilt directly from post-arrest silence, 

and that is precisely what the government did repeatedly in an open and 

4 This is not to imply that plain errors should be corrected only in those cases in which 

the errors were particularly “severe.” Depending on the context, a number of factors other 

than severity of the error may be relevant.

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obvious manner. There was nothing subtle about what the prosecutor was 

suggesting to the jury when he said, for example, that, “[o]ne of the other aliens

that was in the vehicle, he took the opportunity to make some sort of claim of 

robbery,” but “[t]he defendant was right there” and “[h]e said nothing.” 

(Emphasis added.) This is not an instance where reasonable minds could differ 

on the government’s intended meaning. The prosecutor here employed 

textbook Doyle violations to win a conviction. With less egregious Doyle

violations, such as, for example, where the prosecutor merely mentions postarrest silence in passing without pressing the matter, the court may have 

greater leeway to allow the conviction to stand. But obvious violations of this 

sort demand a remedy. See United States v. Rodriguez, 260 F.3d 416, 422 (5th 

Cir. 2001) (explaining that, when the prosecution “directly links” the 

defendant’s post-arrest silence to the implausibility of his exculpatory story 

offered at trial, the government commits the most egregious sort of Doyle

violation) (citing Chapman v. United States, 547 F.2d 1240, 1249-50) (5th Cir. 

1977)).

Second, there is the pervasiveness of the violations. Not only did the 

government violate Doyle in an open and obvious manner, but it did so 

repeatedly. The Doyle violations began during Andaverde’s cross-examination

and they continued throughout closing statements and rebuttal. This 

pervasiveness affects the severity of the error and itself favors correction. 

Compare United States v. Carter, 953 F.2d 1449, 1467 (5th Cir. 1992) (declining 

to reverse for Doyle violation under plain-error review where “the prosecutor 

mentioned [the defendant’s immediate post-arrest silence] only once very 

briefly in passing . . . and never emphasized it”), with United States v. MenesesDavila, 580 F.2d 888, 895 (5th Cir. 1978) (reversing for Doyle violations under 

plain-error review where “[t]here was more than a single reference to 

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defendant’s silence” and “[t]he repetition ensured that the prosecutor’s point 

could not have been lost on the jury, for the trial lasted just one day”).

Third, because of the unique circumstances of this case, the Doyle

violations affected Andaverde’s substantial rights to a great degree. The sole 

issue before the jury was whether to believe the story underlying Andaverde’s 

duress defense, that he was robbed and forced to enter the United States 

against his will. Andaverde stipulated to the elements of the illegal reentry 

offense and he presented no affirmative defenses beside duress. Thus, the 

government’s impermissible Doyle impeachment undercut the only issue for

decision, whether Andaverde’s story should be believed. That incredibly close 

nexus between the government’s violations and the purpose of the trial both 

goes to the severity of the error and is itself cause for granting a new trial. 

Compare Carter, 953 F.2d at 1465 (declining to reverse for Doyle violations 

under plain-error review because, inter alia, “the story being impeached here 

is essentially peripheral to [the defendant’s] defense”), with United States v. 

Johnson, 558 F.2d 1225, 1230 (5th Cir. 1977) (reversing for Doyle violations 

under plain-error review where the violations “went to the heart of the sole 

defense, encouraging the jury to believe that the defense was fabricated after 

arrest”), and United States v. Harp, 536 F.2d 601, 603 (5th Cir. 1976) 

(reversing for Doyle violations under plain-error review where “the prosecutor’s 

comments struck at the jugular of the story”). 

If there is any doubt that the government’s repeated Doyle violations 

were effective in hurting Andaverde’s case, as they were intended to, that 

doubt should be dispelled by the fact that the jury deliberated for hours before 

reporting it was evenly deadlocked with six jurors wanting to convict and six 

wanting to acquit. See United States v. Morales, 854 F.2d 61, 64-65 (5th Cir. 

1988) (Smith, J., dissenting) (contending that Doyle violations warranted 

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reversal under plain-error review because the record showed the jurors having 

difficulty reaching unanimity).

The government’s repeated Doyle violations in this case were obvious. 

The violations pervaded the short trial. And, the record shows that the jury 

was in all probability influenced by the government’s unlawful and 

impermissible argument. The record shows, in short, that the government’s 

Doyle violations were severe. We should not allow convictions obtained 

through such illegal means to stand. Under our precedent, such severe Doyle

violations warrant a new trial even though the defendant’s attorneys failed to 

lodge objections at the proper time. See Meneses-Davila, 580 F.2d at 895; 

Johnson, 558 F.2d at 1230; Harp, 536 F.2d at 603.

B.

The majority contends that four of our cases are “instructive” in 

illustrating why we should allow this unlawfully-obtained conviction to stand. 

See ante, at 19-20 (discussing United States v. McCann, 613 F.3d 486, 503 (5th 

Cir. 2010), Escalante-Reyes, 689 F.3d at 425-26, United States v. Reyna, 358 

F.3d 344, 352-53 (5th Cir. 2004) (en banc), and United States v. Seale, 600 F.3d 

473, 490 (5th Cir. 2010)). 

Three of those cases—McCann, Escalante-Reyes, and Reyna—involve 

legal errors that occurred at sentencing and were caused by the district court’s 

procedures. See McCann, 613 F.3d at 502 (court did not consider necessary 

documents in calculating sentence); Escalante-Reyes, 689 F.3d at 425-26 (court 

based sentence on impermissible consideration); Reyna, 358 F.3d at 352-53 

(court did not allow defendant to speak during sentencing). It is not 

apparent—and the majority offers no affirmative explanation—what import 

those sentencing cases have here, where the government obtained a conviction 

from the jury through repeated, unlawful Doyle impeachment. I see no reason 

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McCann, Escalante-Reyes, or Reyna require or even suggest that this court 

should sit on its hands here.

Seale—the fourth case relied on by the majority—far from supporting 

the majority’s decision to allow the unlawfully obtained conviction here to 

stand rather illustrates why we should require a new trial. Seale, like this 

case, involved the right of an arrestee to remain silent. The defendant there 

was arrested for murder at his home and transported by motor vehicle to the 

police station. During the ride, the arresting officers peppered the defendant 

with questions but they never read him his Miranda rights, viz., that he had 

the right to remain silent. One of the officers told the defendant: “We know 

you did it, you know you did it, the Lord above knows you did it.” That caused 

the defendant to respond, “Yes, but I’m not going to admit it, you are going to 

have to prove it.” At the later criminal trial, the government presented the 

defendant’s statement to the jury as evidence of his guilt. That was plain legal 

error, we held: because the arresting agents did not inform the defendant of 

his Miranda rights, the statement obtained from him during interrogation 

while he was in custody should have been excluded from evidence as 

inadmissible. However, we declined to use our discretion to remedy the error 

because we concluded that the erroneous admission of the statement “did not 

result in a manifest miscarriage of justice,” explaining that, “we are satisfied 

that the Government presented a strong case of guilt. While the defendant’s 

statement may have been helpful to the Government, it was certainly not the 

centerpiece of its case.” 600 F.3d at 490 (emphasis added).

This case stands in stark contrast. Here, the government’s unlawful 

Doyle impeachment was in fact the centerpiece of the government’s case. The 

government’s closing statements that pound on Andaverde’s silence five times

can be read no other way. The prosecutor told the jury that, when Andaverde 

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was arrested and taken to the border patrol station by motor vehicle, during 

the ride, “[h]e d[id]n’t say anything about the alleged robbery.” To further 

highlight his silence, the prosecutor then told the jury that one of the other

persons arrested with Andaverde told the story of the group’s innocence, but 

Andaverde did not: “[He] was right there. He said nothing.” Next, the 

prosecutor turned to after the ride, when Andaverde and the others arrived at 

the station. There, once again: “He said nothing.” And, again: “At least one of 

the other aliens” “took the opportunity to make the claim again at the station.” 

But not the defendant: “The defendant didn’t even make the claim.” In 

summing up the case for the jury, the prosecutor zeroed in on the silence one 

last time: “[H]e never once said anything to them about being forced. That was 

another person. It was another person who’s not on trial here today.” No 

reasonable juror could have listened to these five references to Andaverde’s 

post-arrest silence and thought the issue was anything but the centerpiece of 

the government’s case. As already discussed, the sole issue for trial was 

whether Andaverde’s story of entry into the United States under duress should 

be believed, and the government presented precious little evidence besides the 

impermissible Doyle impeachment on that issue.

In sum, Seale suggests that Andaverde should be afforded a new trial. 

Although this court declined to remedy the government’s legal violations in 

Seale because the violations played a minor role in the trial as a whole and 

were “certainly not the centerpiece of [the government’s] case,” here, the 

government’s violations permeated the trial and were in fact the centerpiece of 

the government’s case. The majority has identified no case—and I believe 

there is none—in which this court (or indeed, any other) has tolerated such 

unlawfulness underlying a conviction.

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C.

Those four cases aside, the majority provides an additional reason for 

declining to correct the plain errors here: because Andaverde’s counsel bears 

some of the fault for the trial’s focus on his post-arrest silence. As the majority 

explains, the defense attorney’s opening statements to the jury included the 

ambiguous statement that “they”—referring to Andaverde and the others with 

whom he was arrested—explained “their” duress story to the arresting agents, 

thereby arguably creating the false impression that Andaverde himself, as one 

of the persons included in the plural “they,” had personally told the story at 

the time of his arrest. That ambiguous statement, the majority contends,

“opened the door” for the government to clarify that, contra the misleading 

implication of Andaverde’s attorney’s opening statement, the defendant had 

actually not told his story at the time of arrest, but rather remained silent. See 

generally Rodriguez, 260 F.3d at 421 (explaining that, “when a defendant 

testifies at trial that he told his exculpatory story at the time of his arrest,” 

then “the defendant’s silence is admissible only for the limited purpose of 

rebutting the impression that the accused had actively cooperated with the 

police”). After that was clarified, however, the government did not stop. 

Instead, it repeatedly ran afoul of Doyle, hammering on the post-arrest silence 

again and again, calling on the jury to find Andaverde guilty because of the 

silence. The majority is correct that Andaverde’s attorney bears the fault for 

initially “opening the door” to limited discussion of whether Andaverde had 

professed his innocence immediately at the time of arrest, as the attorney’s 

opening statements arguably implied, or only later, at the station, as 

Andaverde clarified in his testimony. That, however, does not make the 

government’s subsequent, repeated Doyle violations, in which the government 

went far beyond the permissible limit, any less egregious. See id. (explaining 

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that, when the defendant “opens the door” to allow post-arrest silence to be 

used for a “limited purpose,” the government remains prohibited from going 

further and arguing that “the defendant’s silence was inconsistent with his 

claim of innocence”); United States v. Martinez-Larraga, 517 F.3d 258, 268 (5th 

Cir. 2008) (“We, and other circuits, have continued to recognize this ‘open the 

door’ or ‘reply’ exception to Doyle, while likewise recognizing that it does not 

permit the prosecution to argue that the jury should infer the defendant’s guilt 

directly from his post arrest silence.”) (citations, internal quotation marks, and 

alterations omitted). And, under our precedent, it does not support the 

majority’s decision to decline relief here.

In United States v. Meneses-Davila, this court addressed similar 

circumstances and concluded that, despite the defendant’s attorney’s conduct, 

we should afford a remedy. There, “the prosecutor made four separate, 

intentional references to defendant’s post-arrest silence,” and, “[i]n an 

apparent effort to reduce the impact of these comments by explaining that the 

defendant remained silent because he was advised he had a right to do so, 

defense counsel himself made three references to defendant’s silence.” 580 

F.2d at 891. The defendant’s trial attorney, apparently unaware of the Doyle

rule, did not object to any of the government’s comments and himself injected 

the defendant’s silence into the case. On appeal, this court held that, because 

the government’s repeated Doyle violations were severe and “[t]he repetition 

ensured that the prosecutor’s point could not have been lost on the jury, for the 

trial lasted just one day,” reversal was mandated. Id. at 895-96. We noted 

that some of the government’s comments on the defendant’s silence were 

arguably “defense invited” but we disclaimed that as a reason for allowing the 

conviction to stand, explaining that the government went beyond its 

permissible bounds, requiring us to remedy the violations. Id. (“Even 

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discounting the comments that might be claimed to be defense invited, 

however, the prosecutor’s other references mandate reversal.”).

Meneses-Davila, in short, stands for the principle that, where there are 

severe, repeated Doyle violations, as there were here, we should remedy the 

violations, even if the defendant’s attorney bears some culpability for the 

attention on his post-arrest silence. Andaverde’s attorney’s unfortunate 

performance did not give the government carte blanche to ignore the 

Constitution, as Meneses-Davila makes plain.

III.

Although the majority elects to let Andaverde’s unlawfully obtained 

conviction stand, it expresses ever so slight discomfort with the prosecutor’s 

tactics in this case. The majority warns, this court still “endorse[s] Doyle as 

strongly” as it ever has (as if we have any choice whether to “endorse” Supreme 

Court precedent), and this case, even though it results in a win for the 

government, somehow “highlights the risks for the prosecution if it chooses to 

comment on a defendant’s silence after Miranda warnings.” Ante, at 21 & n.3. 

Today is not the first time this court has adopted the role of the scold 

when it comes to the government disregarding Doyle. When we were faced 

with Doyle violations several decades ago, we took that opportunity to say, “we 

note that comment upon silence of the accused is a crooked knife and one likely 

to turn in the prosecutor’s hand” and “[w]e suggest that it be abandoned as a 

prosecutorial technique.” United States v. Edwards, 576 F.2d 1152, 1155 (5th 

Cir. 1978). But we went further then—we concluded that, because the 

government had abused the trial process, the defendant’s conviction could not 

stand and the defendant deserved a new, lawful trial. Id. We were then, and 

we are today, a court of law tasked with enforcing constitutional rights and 

when faced with convictions obtained through plain violations of the 

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Constitution, we must carry out our duty. Although the legal landscape has 

evolved in the past decades, no decision of the Supreme Court’s or ours since 

has instructed us to remain passive when faced with convictions obtained 

through the government’s obvious, severe, and pervasive violations of 

constitutional right. By choosing to do so here, the majority brushes aside our 

precedent demanding otherwise and disregards the “basic principle of justice” 

that “[d]iscretion is not whim” and “like cases should be decided alike.” See

Martin, 546 U.S. at 139.

In order to convince the jury of Andaverde’s guilt, the government 

adopted an illegal trial strategy of impeaching him for exercising his right to 

remain silent, and the strategy worked: the jury found Andaverde’s exercise of

his constitutional right suspicious, and he now remains in prison today. The 

government’s conduct was “an affront to the fundamental fairness that the Due 

Process Clause requires.” Wainwright, 474 U.S. at 291. We should require a 

new trial in which the jury can decide Andaverde’s guilt or innocence free from 

undue and unconstitutional Doyle influence.

I respectfully dissent.

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