United States v. Daoud

741 F.2d 478 (1984) | Cited 16 times | First Circuit | August 27, 1984

CAMPBELL, Chief Judge

This is an appeal from defendant's conviction of unlawfully importing and possessing with intent to distribute heroin in violation of 21 U.S.C. §§ 952(a) and 841(a) (1).

Defendant Suzan Daoud, a citizen of Lebanon, arrived at San Juan International Airport at 5:30 a.m. on October 4, 1983. Defendant claimed her suitcase and went to the customs inspection area, where Customs Inspector Sonia Maldonado conducted the primary interview of defendant. Maldonado testified that her suspicion was aroused by defendant's behavior: defendant changed lines while awaiting inspection, as if in a hurry to pass customs, and avoided eye contact with Maldonado. Upon reviewing Daoud's passport, Maldonado noticed that defendant had travelled to the United States in August 1983. Her suspicion was heightened when Daoud stated that she worked as a secretary in Lebanon, because the expense of two trips to the United States within two months (approximately $2,500 airfare for each trip) seemed beyond a secretary's means.

Daoud was sent for secondary inspection by Inspector Roman Hernandez. Hernandez testified that he asked defendant to open her suitcase but had to assist her because her hands were shaking. His examination of the suitcase revealed what seemed to be a false bottom. A hole drilled in the suitcase produced a white powder which was determined to be heroin. At this point defendant was arrested and given the Miranda warnings.

A drug enforcement agent, Felix Jimenez, was summoned to the airport. He testified that he read defendant the Miranda warnings and then began questioning her. Defendant responded that while shopping for a suitcase in Lebanon she had been approached by an acquaintance who offered to give her a suitcase for her trip. He delivered the suitcase to her home the next day, and she used the suitcase for her trip to Puerto Rico. She was asked about her occupation; and upon responding that she was a secretary, she was asked her salary. At this point defendant requested the best attorney in Puerto Rico and refused to answer further questions.

Defendant was indicted on October 5, 1983 for knowingly, intentionally and unlawfully importing and possessing with intent to distribute heroin. On December 12 and 13, 1983, defendant was tried and convicted on both counts of the indictment. During the trial two prosecution witnesses made reference to defendant's request for the best attorney in Puerto Rico. Defense counsel objected and requested either a corrective instruction or a mistrial. Both objections were overruled and no corrective instruction was given. Defendant testified on her own behalf. She stated that she had not known of the presence of heroin in the suitcase, and that it was her family that had supplied money to permit her to travel. On cross-examination she responded "no" to the prosecutor's question whether she was paying for her own counsel. Defense counsel objected and requested a mistrial; the court sustained the objection, struck the offending testimony, and gave a curative instruction, but refused to order a mistrial.

Defendant appeals from her conviction, arguing that the comments on her request for counsel and the questioning about her court-appointed counsel violated her constitutional rights and require reversal of her conviction.

I.

The Supreme Court has held that a defendant's post-arrest silence cannot be used to impeach the defendant at trial. Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). The Court reasoned,

The warnings mandated by [Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)] as a prophylactic means of safeguarding Fifth Amendment rights . . . require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. . . . Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

* Of the Supreme Court of the United States, sitting by designation.

1. The full exchange on cross-examination follows: Q She asked for an attorney? A She asked for the best attorney in Puerto Rico. Q That is her Constitutional right; is that correct? A Yes. Q Nothing negative can be taken of that request? A I immediately stopped questioning her. Q That is her legal right if she doesn't want to answer, you can't take anything negative about that? A That is on the Miranda warnings, I read it and she decided to answer questions. Q So, there is nothing strange or nothing bad about asking for a lawyer? A It is normal in our job. Q Not only that, it is normal for somebody to say I would like an attorney? A Yes. After advising her of Constitutional rights, that she had the right to ask for an attorney. Q Nothing negative should be taken of that? A No, sir.

2. See note 1, supra.

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