FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ABRAHAN GARCIA-MORALES, 

AKA Abraham GarciaMorales,

Defendant-Appellant.

Nos. 17-50323

 17-50324

D.C. Nos.

3:16-cr-01611-CAB-1

3:14-cr-02586-CAB-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Cathy Ann Bencivengo, District Judge, Presiding

Argued and Submitted December 7, 2018

Pasadena, California

Filed October 31, 2019

Before: Johnnie B. Rawlinson and Carlos T. Bea, Circuit 

Judges, and Benjamin H. Settle,* District Judge.

Opinion by Judge Settle;

Dissent by Judge Bea

* The Honorable Benjamin H. Settle, United States District Judge 

for the Western District of Washington, sitting by designation.
2 UNITED STATES V. GARCIA-MORALES

SUMMARY**

Criminal Law

The panel affirmed a conviction for attempted transport 

of aliens in a case in which the defendant alleged that the 

prosecution committed misconduct at trial by introducing 

evidence of, and commenting on, the defendant’s post-arrest 

silence in violation of due process under Doyle v. Ohio, 426 

U.S. 610 (1976).

Upon review of the record, the panel concluded that the 

defendant was not silent in response to a border patrol 

agent’s questioning on the topic of his co-conspirators – and 

that, at most, the exchange demonstrated that the defendant 

did not want to discuss his co-conspirators on video tape but 

was willing to continue talking about the subject later. The 

panel wrote that the prosecution’s characterization of the 

defendant as being evasive about other people involved in 

alien smuggling was supported by, and tied to, evidence in 

the record. The panel concluded that the prosecution 

therefore did not err, or commit misconduct, by 

characterizing the defendant as being evasive about the other 

people involved in alien smuggling, but properly relied on 

admissible evidence to rebut the theory that the defendant 

had always intended to turn aliens he picked up over to 

border patrol.

Dissenting, Judge Bea wrote that it cannot be that the 

defendant’s refusal to name his co-conspirators was not 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GARCIA-MORALES 3

silence, and that this determination allowed the prosecution 

at trial to characterize his non-silence as silence for purposes 

of proving his guilt. Judge Bea wrote that the prosecution’s 

reference to the defendant’s silence as evidence of his guilt 

in this context was a Doyle violation, and plain error that 

warrants reversal and remand for further proceedings.

COUNSEL

Sarah R. Weinman (argued), Federal Defenders of San 

Diego Inc., San Diego, California, for Defendant-Appellant.

Daniel Earl Zipp (argued) and Ajay Krishnamurthy,

Assistant United States Attorneys; Helen H. Hong, Chief, 

Appellate Section, Criminal Division; United States 

Attorney’s Office, San Diego, California; for PlaintiffAppellee.

OPINION

SETTLE, District Judge:

Defendant Abrahan Garcia-Morales (“Garcia”) appeals 

his conviction for attempted transport of aliens in violation 

of 8 U.S.C. § 1324(a)(1)(A)(ii). Garcia alleges that the 

prosecution committed misconduct by introducing evidence 

of, and commenting on, his post-arrest silence at trial.1

Because Garcia did not object to the prosecutor’s statements 

1 Garcia also appeals the district court’s finding that border patrol 

agents had reasonable suspicion to detain his vehicle. In a separate 

memorandum disposition filed simultaneously with this opinion, we 

affirm the conviction on that basis as well.
4 UNITED STATES V. GARCIA-MORALES

at trial, this Court reviews his prosecutorial misconduct 

claim for plain error. United States v. Sanchez, 176 F.3d 

1214, 1218 (9th Cir. 1999). We may reverse under this 

standard if: “(1) there was error; (2) it was plain; (3) it 

affected the defendant’s substantial rights; and (4) ‘viewed 

in the context of the entire trial, the impropriety seriously 

affected the fairness, integrity, or public reputation of 

judicial proceedings.”’ United States v. Alcantara-Castillo, 

788 F.3d 1186, 1191 (9th Cir. 2015) (quoting United States 

v. Combs, 379 F.3d 564, 568 (9th Cir. 2004)). The defendant 

bears the burden to establish plain error. Combs, 379 F.3d 

at 568 (quoting United States v. Geston, 299 F.3d 1130, 

1134–35 (9th Cir. 2002)). We affirm.

Shortly after Garcia left Calzada de la Fuente, a street 

abutting the Otay Mountain Wilderness Area just north of 

the U.S.-Mexican border, border patrol agents arrested him 

on suspicion of alien smuggling. Three aliens thought to be 

waiting for transportation from the area had been 

apprehended by border patrol agents about thirty minutes 

before Garcia arrived. When he was arrested, Garcia told 

agents he would have turned any aliens he picked up over to 

border patrol. This statement formed the basis for his theory 

of defense at trial: that he lacked the requisite mens rea to 

transport aliens.

The prosecution introduced video clips of Garcia’s 

interrogation at trial. Although he received a Miranda

warning and waived his right to remain silent in response to 

that warning, Garcia alleges that he later selectively invoked 

the right to silence on the topic of his co-conspirators.

Video of the interrogation shows Garcia admitting, inter 

alia, to a past attempt to transport aliens and to having been 

offered a job transporting aliens by a smuggler that morning. 

However, he maintained that he had driven to Calzada de la 
UNITED STATES V. GARCIA-MORALES 5

Fuente on the day of his arrest simply to scope out the area, 

in contrast to border patrol agents’ belief that he had been 

sent a dispatch asking him to pick up the three aliens by a 

smuggling contact.

One of many video clips of the interrogation introduced 

by the prosecution during the testimony of Border Patrol 

Agent Kahl showed Agent Kahl asking Garcia to name his 

smuggling contacts. In response, Garcia stated that he was 

not “feeling cool with that camera.” Agent Kahl asked 

Garcia to “give him a name,” with Garcia responding, “I 

don’t . . .” while trailing off and shaking his head “no” once. 

Before Agent Kahl moved on to another topic, he told 

Garcia: “alright well, well later on I’ll turn off the camera 

and you can tell me.” Garcia nodded his head “yes” twice in 

response. The exchange lasted approximately forty-five 

seconds. Garcia continued answering questions for the 

remainder of the interrogation.

During closing argument, the prosecution summarized 

the evidence against Garcia, focusing primarily on 

contradictions between Garcia’s actions and the statements 

he made at arrest and during post-arrest interrogation. To 

demonstrate one such contradiction, the prosecution argued 

that Garcia’s “evasiveness” about the other people involved 

showed that he was not going to cooperate with border 

patrol, as he had stated at arrest. Because Garcia argues that 

he selectively invoked the right to silence on the topic of his 

co-conspirators, he contends that the prosecution’s eliciting 

of testimony and argument about this topic was improper 

and asks us to remand for a new trial.

Because the Fifth Amendment’s self-incrimination 

clause carries an implicit guarantee that silence will carry no 

penalty, a prosecutor violates due process by eliciting 

testimony about a suspect’s silence. Doyle v. Ohio, 426 U.S. 
6 UNITED STATES V. GARCIA-MORALES

610, 617–19 (1976). This is because a suspect’s “silence in 

the wake of” Miranda warnings “may be nothing more than 

the arrestee’s exercise of” his or her Miranda rights. Id. at 

617. Silence does not mean only muteness; it includes the 

statement of a desire to remain silent, as well as of a desire 

to remain silent until an attorney has been consulted. 

Wainwright v. Greenfield, 474 U.S. 284, 294 n.13 (1986). 

However, when a suspect invokes his Fifth Amendment 

right to cut off police questioning on a specific topic, he must 

do so “unambiguously.” Berghuis v. Thompkins, 560 U.S. 

370, 381–82 (2010) (citing Davis v. United States, 512 U.S. 

452, 459 (1994)). Even so, a suspect who remains silent in 

response to certain questions may still claim protection 

under Doyle even if his silence falls short of the 

unambiguous declaration required to invoke the right to 

counsel under Davis or the right to cut off questioning under 

Thompkins. Hurd v. Terhune, 619 F.3d 1080, 1087 (9th Cir. 

2010).

Upon review of the record, we conclude that Garcia was 

not silent in response to Agent Kahl’s questioning on the 

topic of his co-conspirators. This conclusion is driven by the 

fact that the exchange between Agent Kahl and Garcia began 

with Garcia voicing discomfort with video recording and 

concluded with Garcia agreeing to speak about his coconspirators. At most, the exchange demonstrated that 

Garcia did not want to discuss his co-conspirators on video 

tape but was willing to continue talking about the subject 

later. On the fact-specific record before us, that brief 

exchange does not amount to the invocation of silence under 

either standard articulated above.

Moreover, because we have determined that Garcia did 

not selectively invoke his right to silence, we also conclude 

that it was not error for the prosecution to introduce evidence 
UNITED STATES V. GARCIA-MORALES 7

of, and comment on, that part of the interrogation including 

argument characterizing Garcia as being evasive about other 

people involved in smuggling. While we acknowledge that 

characterizing a suspect as evasive is likely to invade the 

realm of improper demeanor testimony in some cases, our 

determination that Garcia was not silent dictates the 

conclusion that the characterization was proper in the 

context of this case. Additionally, the characterization was 

supported by the evidence in the record. For example, the 

prosecution elicited testimony at trial showing that Garcia 

had deleted certain phone records prior to his arrest. 

Referencing this fact and Garcia’s reluctance to discuss his 

co-conspirators, the prosecution discussed Garcia’s 

evasiveness as follows:

The phone evidence we just talked about 

and the post-arrest statement you just saw 

where he’s evasive about other people who 

are involved. This is not someone who is 

trying to cooperate, oh, I was trying to help 

you guys. I was going to call them. I wasn’t 

going to transport them. I was going to pick 

them up and then call border patrol and say 

I’ve got people. Then why are you being so 

evasive? If you’re trying to help, why are you 

being evasive, and why did you delete all the 

phone calls that would be able to help? 

Right?

Further, Agent Kahl testified that Garcia did not provide any 

actual information about his co-conspirators after the 

recording stopped, although Garcia did try to engage in 

negotiations to avoid going to jail. The prosecution referred 

to Agent Kahl’s testimony during closing argument as 

follows: 
8 UNITED STATES V. GARCIA-MORALES

Why does he want the recording turned 

off? Well, was it because he was going to 

provide fantastic information if they just 

turned the thing off? Well, you heard the 

testimony. Agent Kahl said, if you want to, 

we will turn it off, and you can tell me. In 

fact, he had an opportunity later. He wanted 

to make a deal. He didn’t want to be on 

record being a snitch, and he wanted to make 

a deal. That’s the reason why. It wasn’t 

because he had a plan the entire time to turn 

these people over.

Because the prosecution tied its arguments characterizing 

Garcia as evasive to the evidence and given our holding that 

Garcia was not silent, the prosecution did not commit 

misconduct by characterizing him as being evasive about the 

other people involved in alien smuggling. Rather, the 

prosecution properly relied on admissible evidence to rebut 

the theory that Garcia had always intended to turn aliens he 

picked up over to border patrol.

The outcome of this appeal is controlled by our 

determination on the silence issue because, absent a 

conclusion that Garcia was silent, he cannot demonstrate 

error. Appellate courts may consider reversal if a defendant 

meets the first three elements of the plain error standard. 

However, even then, the court should not exercise its 

discretion to reverse unless the error also “seriously affect[s] 

the fairness, integrity or public reputation of judicial 

proceedings.” Puckett v. United States, 556 U.S. 129, 135 

(2009) (quoting United States v. Olano, 507 U.S. 725, 736 

(1993)). Here, having determined that Garcia was not silent 

on the topic of his co-conspirators, we must similarly 

conclude that he has failed to establish the existence of error 
UNITED STATES V. GARCIA-MORALES 9

related to the prosecution’s introduction of evidence on that 

topic. Without a showing of error, Garcia fails to meet the 

requirements for reversal of his conviction because he must 

also demonstrate that any alleged errors were plain, 

impacted his substantial rights, and so seriously affected the 

fairness and integrity of his trial that reversal is required. 

Puckett, 556 U.S. at 135. This is a showing Garcia has not 

made. Therefore, we affirm.

AFFIRMED.

BEA, Circuit Judge, dissenting:

As the majority recognizes, the Fifth Amendment’s selfincrimination clause carries an implicit guarantee that a 

suspect’s silence during a custodial interrogation will carry 

no penalty. Doyle v. Ohio, 426 U.S. 610, 617 (1976). It is 

therefore a due process violation for a prosecutor to elicit 

testimony or comment about such silence at trial. Id. Put 

another way:

“When a person under arrest is informed, as 

Miranda requires, that he may remain silent, 

that anything he says may be used against 

him, and that he may have an attorney if he 

wishes . . . 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 . . . .”
10 UNITED STATES V. GARCIA-MORALES

Id. at 619. Because that is exactly what the prosecution did 

in this case, I respectfully dissent.

At Garcia’s trial, the prosecution played a video clip of 

Garcia’s post-arrest interrogation. In the video, Border 

Patrol Agent Kahl asked Garcia to identify his alien 

smuggling co-conspirators. Although Garcia had already 

answered a number of questions up to this point in the videorecorded interrogation, he refused to discuss his coconspirators, stating “I ain’t feeling cool with that camera.” 

Agent Kahl pressed harder, asking “why don’t you just give 

me a name?” Garcia shook his head nervously, sighed 

heavily, and started to say “I don’t . . . .” Agent Kahl 

interrupted Garcia to remind him that if he did not name his 

co-conspirators, he alone would take the fall for the crime of 

alien smuggling. Garcia shook his head timidly, bit his nails, 

and once again stated: “I don’t feel cool with the camera 

. . . .” Agent Kahl again cut him off, this time stating: 

“Okay, if you want, alright, well, later on we’ll turn off the 

camera and you can tell me.” Garcia sheepishly nodded his 

head in agreement. Agent Kahl then moved on to another 

topic, and Garcia continued answering questions on camera. 

Despite suggesting that he might talk about his coconspirators off camera, Garcia later refused to name his coconspirators during subsequent off-camera discussions with 

Border Patrol agents. At trial, the prosecution elicited direct 

testimony from Agent Kahl in its case-in-chief about 

Garcia’s refusal to identify his co-conspirators. Later, the 

prosecution argued in its closing statement that Garcia must 

be guilty because he was “evasive about other people who 

are involved,” asking “Why does he want the recording 

turned off? . . . It wasn’t because he had a plan the entire time 

to turn these people over.” This is exactly the type of penalty 

for exercising one’s Fifth Amendment rights that Doyle

prohibits. 426 U.S. at 617–18.
UNITED STATES V. GARCIA-MORALES 11

The majority states that “Garcia was not silent in 

response to Agent Kahl’s questioning on the topic of his coconspirators,” and that therefore no Doyle error occurred. 

Maj. Op. at 6. The majority holds that a defendant’s repeated 

refusal to answer a specific question during an interrogation 

does not count as “silence” under Doyle if the refusal is 

accompanied by a suggestion that the defendant might be 

willing to answer the question at another time, or under 

different circumstances, even if he never follows through. 

The majority cites no authority for this novel holding. 

Indeed, it is well-established in this Circuit that a suspect 

may “refuse to be interviewed in a particular manner even if 

he has already waived that right with respect to the subject 

matter of the interrogation.” Hurd v. Terhune, 619 F.3d 

1080, 1088 (9th Cir. 2010).1

It makes no difference that Garcia intimated that he 

might be willing to answer questions about his coconspirators at another time (which ultimately never 

happened), because such an “explanatory refusal” to answer 

1 In Hurd, the Ninth Circuit held that it was error to allow the 

prosecution to introduce at the defendant’s state-court murder trial his 

steadfast refusal to answer interrogation questionsin a particular manner. 

Id. at 1088–89. The defendant in Hurd argued that he shot his wife by

accident, and at trial the prosecution played a tape of the defendant’s 

interrogation, wherein he refused repeatedly to reenact physically how 

the alleged accident occurred. Id. at 1082. He was subsequently

convicted of murder. Id. The California Court of Appeal affirmed his 

conviction, holding that the prosecution’s use at trial of his refusal to 

reenact the shooting was proper under Doyle. People v. Hurd, 62 Cal. 

App. 4th 1084, 1090 (1998). On habeas review, the Ninth Circuit held

that “[t]he California Court of Appeal’s . . . Doyle analysis [was] 

incorrect,” because “[a] suspect may remain selectively silent by 

answering some questions and then refusing to answer others without 

taking the risk that his silence may be used against him at trial.” 

618 F.3d at 1087.
12 UNITED STATES V. GARCIA-MORALES

is treated the same as silence for Fifth Amendment purposes. 

See U.S. v. Gomez, 725 F.3d 1121, 1127 (9th Cir. 2013) 

(“[W]hen the prosecution attempts to use a defendant’s 

‘explanatory refusal’ in its case-in-chief, as affirmative 

evidence of guilt . . . the Fifth Amendment bars the 

introduction of the explanation just as it bars the introduction 

of the silence.”). Disagreeing with the majority’s conclusion 

that “Garcia was not silent,” Maj. Op. at 6, the prosecution 

characterized Garcia’s explanatory refusal as silence—

arguing that it showed his evasiveness on the issue of his coconspirators, which implied his guilt. It cannot be that 

Garcia’s refusal to name his co-conspirators was not silence, 

and that this determination allowed the prosecution at trial to 

characterize his non-silence as silence for purposes of 

proving his guilt (that would amount to prosecutorial 

misconduct by misstating the evidence).2 See Hurd, 

619 F.3d at 1089 (“[N]either the Constitution nor Miranda

require a suspect to invoke his right to silence in a particular 

way. They simply mandate that once a suspect has invoked 

that right, he cannot be punished for it.”). The prosecution’s 

reference to Garcia’s silence as evidence of his guilt in this 

context was a Doyle violation, plain and simple.

Because Garcia did not object to the use of his silence by 

the prosecution at trial, the plain error standard applies, and 

we may reverse Garcia’s conviction only if: (1) there was 

error; (2) it was plain; (3) it affected the defendant’s 

2 I note also that it does not matter that Garcia’s explanatory refusal 

was not so unambiguous as to require Agent Kahl to cut off questioning 

on the subject of Garcia’s co-conspirators pursuant to Berghuis v. 

Thompkins, 560 U.S. 370 (2010), and Miranda v. Arizona, 384 U.S. 436 

(1966), given the “fundamental principle that a suspect’s silence in the 

face of questioning cannot be used as evidence against him at trial, 

whether that silence would constitute a valid invocation of the ‘right to 

cut off questioning’ or not.” Hurd, 619 F.3d at 1088.
UNITED STATES V. GARCIA-MORALES 13

substantial rights; and (4) the impropriety seriously affected 

the fairness, integrity, or public reputation of judicial 

proceedings when viewed in the context of the trial as a 

whole. United States v. Alcantara-Castillo, 788 F.3d 1186, 

1190–91 (9th Cir. 2015). The prosecution’s flagrant and 

repeated use of Garcia’s post-arrest silence against him at 

trial to prove his guilt satisfies all four plain-error prongs. 

As described above, the prosecution’s use of Garcia’s 

silence was a clear constitutional violation under Doyle—

satisfying the first two plain-error prongs. As for the third 

plain-error prong, the violation affected Garcia’s substantial 

rights because the prosecution’s use of his silence was 

critical to defeating Garcia’s sole defense theory: that he 

lacked the mens rea to commit alien smuggling because he 

intended to turn the smuggled aliens and his co-conspirators 

over to Border Patrol officials. Indeed, Garcia’s mens rea

was the only disputed element at trial, and the evidence the 

prosecution put forward to establish his mens rea other than 

his post-arrest silence was both thin and circumstantial. The 

fourth plain-error prong is satisfied because, as the Supreme 

Court has noted, it is “fundamentally unfair” to allow a 

criminal defendant’s silence to be used against him at trial, 

given his constitutional privilege against self-incrimination. 

Doyle, 426 U.S. at 618. Such a violation necessarily 

implicates the integrity and public reputation of federal 

criminal proceedings, because it impacts whether future 

arrestees can rely on pre-interrogation promises that they 

have the right to remain silent, and the implicit guarantee 

that exercising that right will carry no penalty at trial.

Because the prosecution’s use of Garcia’s post-arrest 

silence against him at trial was plainly erroneous, I would 

reverse Garcia’s conviction and remand for further 

proceedings.