United States v. Augustin Gomez Luna, 539 F.2d 417 (5th Cir. 1976). · Go Syfert
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United States v. Augustin Gomez Luna, 539 F.2d 417 (5th Cir. 1976). Cases Citing This Book View Copy Cite
15 citation events across 4 distinct courts.
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Glenn S. Passman v. Frank Blackburn, Warden, Louisiana State Penitentiary, Respondents
5th Cir. · 1986 · confidence medium
See also United States v. Meneses-Davila, 580 F.2d 888, 895 (5th Cir.1978); United States v. Johnson, 558 F.2d 1225, 1230 (5th Cir.1977) (evidence admitted in violation of Doyle "went to the heart of the sole defense, encouraging the jury to believe that the defense was fabricated after arrest”); United States v. Luna, 539 F.2d 417, 417 (5th Cir.1976).
discussed Cited as authority (rule) United States v. Ronald Glen Shaw
5th Cir. · 1983 · confidence medium
Accordingly, we have reversed when we found that the remark “went to the heart of [the defendant’s] sole defense,” United States v. Johnson, supra, 558 F.2d at 1230 ; where the defendant’s defense was “not so implausible as to be dismissed out of hand” and evidence of guilt was “not overwhelming”, United States v. Impson, 531 F.2d 274, 278 (5th Cir.1976), cert. denied, 434 U.S. 1050 , 98 S.Ct. 900 , 54 L.Ed.2d 803 (1978); and where the prosecutor had argued the substantive or impeachment possibilities of the testimony, United States v. Meneses-Davila, supra, 580 F.2d at 895 , o…
cited Cited "see" State v. Canty
Conn. · 1992 · signal: see · confidence high
See United States v. Luna, 539 F.2d 417 (5th Cir. 1976); United States v. Harp, [ 536 F.2d 601 (5th Cir. 1976)].
discussed Cited "see" United States v. Charles F. Shavers
5th Cir. · 1980 · signal: see · confidence high
See United States v. Luna, 539 F.2d 417 (5th Cir. 1976); United States v. Harp, supra [ 536 F.2d 786 ], When the prosecutor does not directly tie the fact of defendant’s silence to his exculpatory story, i. e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.
discussed Cited "see" Don Garriga Chapman v. United States (2×) also: Cited "see, e.g."
5th Cir. · 1977 · signal: see · confidence high
See United States v. Luna, 539 F.2d 417 (5th Cir. 1976); United States v. Harp, supra. When the prosecutor does not directly tie the fact of defendant’s silence to his exculpatory story, i. e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.
cited Cited "see, e.g." State v. Zeko
Conn. · 1979 · signal: compare · confidence low
Compare United States v. Meneses-Davila, 580 F.2d 888, 895-96 (5th Cir. 1978), and United States v. Luna, 539 F.2d 417 (5th Cir. 1976), with Meeks v. Havener, 545 F.2d 9, 10 (6th Cir. 1976).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Augustin Gomez LUNA, Defendant-Appellant
76-2326.
Court of Appeals for the Fifth Circuit.
Sep 22, 1976.
539 F.2d 417
Roland E. Dahlin, II, Federal Public Defender, Karen K. Friedman, Asst. Federal Public Defender, Houston, Tex., Juan E. Gavito, Asst. Federal Public Defender, Brownsville, Tex., for defendant-appellant., Edward B. McDonough, Jr., U. S. Atty., James R. Gough, George A. Kelt, Jr., John Patrick Smith, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Dyer, Clark, Hill.
Cited by 14 opinions  |  Published
PER CURIAM:

Augustin Gomez Luna was convicted by a jury of possession with intent to distribute approximately 304 pounds of marijuana, in violation of 21 U.S.C. § 841(a)(1), and he appeals.

In the course of his closing argument, the prosecuting attorney stated,

“Did we ever hear any statements that the defendant made as to this is not my stuff, I’m looking for my friends? You guys have the wrong man, when he was arrested? Think about it.” [1]

In Doyle v. Ohio, 1976,-U.S.-, 96 S.Ct. 2240, 49 L.Ed.2d 91, the Supreme Court forbade usage of a defendant’s silence following arrest and Miranda warnings to impeach an explanation subsequently given at the trial. In United States v. Harp, 536 F.2d 601 (5th Cir. 1976), we applied Doyle to use of silence in an impeaching fashion during the course of the government’s closing argument. Accordingly, Luna’s conviction must be reversed and a new trial held.

REVERSED AND REMANDED.

1

. The prosecutor’s comment referred to Luna’s silence after he had been arrested and warned as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).