Caught driving a car with 250 pounds of marijuana in the trunk, Vicente Meneses-Davila was convicted of possession of marijuana with intent to distribute. 21 U.S.C.A. § 841(a)(1). We reverse his conviction because the prosecutor impermissibly commented on defendant's post-arrest silence. Since this ground of reversal permits a retrial, we have reviewed defendant's insufficiency of the evidence contention and find that the jury could conclude on the evidence before it that defendant knew that his automobile contained marijuana.

There is no doubt that the prosecutor on several occasions brought out and commented on the fact that defendant remained silent at the time of arrest but then testified at trial to a story the prosecutor thought he should have told to the arresting officer. The Government concedes such prosecutorial conduct is constitutionally condemned by Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), but contends that the error was harmless. A review of the record and the applicable law leads us to conclude that the error was not harmless.

In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the Supreme Court raised to a constitutional level the prohibition of prosecutorial "comment on silence for impeachment," prosecutorial conduct which, a year earlier in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), the Court had condemned in federal court under its supervisory power.

The defendant in Hale, arrested for robbery, made no response to an officer's inquiry as to the source of money found on his person. In connection with his alibi testimony at trial, he testified his wife had given him the money to purchase some money orders. To impeach him, the prosecutor asked why he had not told that story to the police at the time of his arrest. Reserving decision on the alternative constitutional ground of attack, the Supreme Court held that the evidence lacked significant probative value because, having been given his Miranda warnings, defendant's failure to explain about the money could as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory trial testimony was a later fabrication. Relying on its supervisory authority over federal courts, the court held that it was prejudicial error for the trial court to permit the cross-examination of defendant concerning his silence during police interrogation.

The following term the Supreme Court in Doyle elevated the principle to a constitutional level by holding, in an appeal from a state court conviction, that the use for impeachment purposes of a defendant's silence, after receipt of Miranda warnings, is a violation of the due process clause of the Fourteenth Amendment.1

While Doyle involved a state trial and the due process clause of the Fourteenth Amendment, it is at once obvious that the Court's decision reaches into federal courts with constitutional authority through the Fifth Amendment.

The next question is whether such a constitutional error as this can be sheltered by the harmless error rule announced in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Although the Supreme Court has not ruled on this point, the Fifth Circuit directly decided in Chapman v. United States, 547 F.2d 1240, 1248 (5th Cir.), Cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977), that "the harmless error doctrine is applicable to the kind of constitutional violation at issue in Doyle."

Thus, the main issue we address on this appeal is whether the Government's admitted Doyle violation is harmless under the circumstances of this case, a determination that must be made "on a case-by-case basis" that depends "upon the circumstances of each case." United States v. Davis, 546 F.2d 583, 594-595 & n. 31 (5th Cir.), Cert. denied, 431 U.S. 906, 97 S. Ct. 1701, 52 L. Ed. 2d 391 (1977).

The decision requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant's guilt. It must be noted that the critical issue at trial was defendant's knowledge that he possessed the prohibited marijuana, a fact proved only by circumstantial evidence.

The action took place along the Rio Grande River, which separates the United States from Mexico. In response to an informant's tip that marijuana was going to be smuggled into an area of the border near El Paso, Texas, called Prado Street, customs agents set up surveillance. An agent saw three cars park on the Mexican side of the border. Several Mexicans got out of the cars, walked to the river, and later appeared on the American side of the border. A white four-door sedan then drove to the river on the American side. The car's only occupant was the driver, who got out of the car and opened the trunk. The Mexicans milled around the rear of the car, although the surveillant could not see if anything was placed in the trunk. The driver then got back into the car and drove back to the road.

The agent who saw all this alerted another agent who was waiting on the road in an unmarked customs vehicle. Spotting the white sedan described to him, this agent turned on his flashing red light and siren, attempting to stop the suspect vehicle. The car went about a quarter of a mile before stopping for a moment, then continued along the side of the road for another quarter of a mile before finally stopping. When the car was stopped, the driver and sole occupant of the car was defendant, Vicente Meneses-Davila. On the agent's instructions, he opened the trunk. Approximately 250 pounds of marijuana were found wrapped in plastic bags. Being Miranda -advised that he had the right to remain silent, defendant did so.

At trial, however, defendant told a story that, if true, would prove he thought the car he was driving contained clothing, possibly stolen, and not marijuana. This fact would exonerate him of the crime with which he was charged, one that requires a knowing and intentional possession of marijuana. For defendant's purposes, the jury did not have to believe his testimony, it being sufficient if it just cast a reasonable doubt as to the circumstantial proof that he knew what was in fact in the car. Defendant, a 32-year-old Mexican with a sixth grade education, a job, a wife, and six children, testified he was paid $30 to drive the car to a downtown El Paso location, he did not see the packages loaded into the trunk, he was told they contained clothing which he thought might have been stolen, he was never connected in any way with anybody dealing in marijuana, and he would not have driven the car if he had even thought there was marijuana in it.

In an effort to impeach defendant's testimony, the prosecutor made four separate, intentional references to defendant's post-arrest silence: during the direct examination of the arresting officer, on cross-examination of defendant, on direct examination of a Government rebuttal witness, and in his final closing jury argument. In an apparent effort to reduce the impact of these comments by explaining that defendant remained silent because he was advised he had a right to do so, defense counsel himself made three references to defendant's silence: on cross-examination of the arresting officer, on redirect examination of defendant, and during closing argument.

First Comment: Direct Examination of the Arresting Officer

The first reference to defendant's silence came during the Government's direct examination of the arresting officer.2 No objections were made to the questions concerning defendant's silence. On cross-examination, the defense attorney asked the officer whether he had conversed with defendant in Spanish (defendant did not speak English) and what he had asked defendant. In response the agent again added that defendant "said nothing."3

Second Comment: Cross-Examination of Defendant

The prosecutor's second reference to defendant's silence constituted a blatant violation of Doyle. After defendant took the stand and told the jury his version of the events leading to his arrest, the prosecutor cross-examined defendant directly about his failure to tell the story to anyone before trial.4 As before, the defense made no objection to this line of questioning. In order to counteract its effect, however, defense counsel on redirect brought out that no one had questioned defendant or given him a chance to explain what had happened.5

After brief testimony from another witness regarding investigation into the ownership of the white sedan, the defense rested.

Third Comment: Government's Rebuttal Witness

The prosecution then called a Drug Enforcement Administration agent as a rebuttal witness for the sole purpose of rebutting defendant's statement that none of the arresting officers had questioned him, and in the process again called attention to the fact that defendant was silent after he was arrested.6 This third prosecutorial reference to defendant's silence also came in without objection.

The prosecutor did not refer to defendant's silence in his initial closing argument. The defense attorney made an effort to explain to the jury that defendant had been told he could remain silent.7 He also criticized the Government for inadequately investigating the ownership of the white sedan.

In his closing summation, the prosecutor replied to the attacks on the Government's lack of investigation, and in the process called attention to defendant's post-arrest silence for the fourth time.8 As with the prior three prosecutorial references, the defense made no objection to these comments.

The Harmless Error Test: Chapman v. United States

The leading case in this Circuit analyzing the harmless error test as applied to Doyle violations is Chapman v. United States, 547 F.2d 1240 (5th Cir.), Cert. denied, 431 U.S. 908, 97 S. Ct. 1705, 52 L. Ed. 2d 393 (1977). Whether a prosecutor's erroneous comment is cured by the harmless error doctrine is a fact-dependent determination handled on a case-by-case basis. Chapman examined and harmonized the case law and found that our cases fall into three categories:

(1) When the prosecution uses defendant's post-arrest silence to impeach an exculpatory story offered by defendant at trial and 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.

(2) 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.

(3) When there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error.

547 F.2d at 1249-1250 (citations and footnote omitted).

Reversible error results in the first two situations, but not the third. The paradigm case in the first category is United States v. Harp, 536 F.2d 601 (5th Cir. 1976). Defendants in Harp, on trial for escape from a federal prison, raised a "bizarre" defense. They contended that while their escape cavern was big enough for all ten of them, only one had planned to escape. When he found the others secretly drinking beer in his hiding place, he kidnapped them rather than jeopardize his escape scheme. In closing argument, the prosecutor "highlighted" the fact that when they were discovered, not one of them told prison officials that he had been kidnapped. No objection was made to the prosecutor's remarks. Although the Court considered the defense to be "transparently frivolous," it reversed, holding the comments to be plain error "(b)ecause the prosecutor's comments struck at the jugular of their story. . . ." 536 F.2d at 603.9

United States v. Impson, 531 F.2d 274 (5th Cir. 1976), Cert. denied, 434 U.S. 1050, 98 S. Ct. 900, 54 L. Ed. 2d 803 (1978), is representative of cases in the second Chapman category. Impson was charged with possession of counterfeit currency found during the search of a car in which Impson was a passenger. The prosecutor asked the arresting officer if Impson had said anything upon arrest. The officer replied that he had not. On objection, the judge instructed the jury to disregard the comment. Defendant then testified that he had merely gone drinking with the car's driver and had no knowledge that counterfeit currency was hidden in the car. Despite the fact that reference to defendant's silence was brief and isolated, was not referred to in closing argument, and a curative instruction was given, the Court held it was Not harmless, because Impson's defense was "not so implausible as to be dismissed out of hand," and because the Government's evidence, while substantial, was not overwhelming. 531 F.2d at 278.

Chapman v. United States, supra, is representative of that category of cases in which the error is held harmless. Chapman was found removing a crowbar from the door of a bank. The prosecutor elicited from the arresting officer that defendant had said nothing when he was arrested. The prosecutor did not comment on this at any time. Chapman then testified that he had lent his car to two hitchhikers who used his crowbar without his knowledge to attempt entry of the bank. Chapman claimed he was arrested while trying to recover his crowbar. The Court found defendant's uncorroborated story "transparently frivolous," and the evidence of his guilt overwhelming. Since the prosecutor had made only a single reference to defendant's silence without repeating it or linking it to defendant's exculpatory story, the Court held that the error was harmless.10 Most of the cases finding harmless error involved an isolated comment coupled with positive eyewitness identification of the defendant.11

It is apparent from the Chapman categorization of the case law that the prosecutor's comments at defendant Meneses-Davila's trial are not harmless, even under the plain error standard of review.

This case does not fit within Chapman's harmless error category. There was more than a single reference to defendant's silence. The repetition ensured that the prosecutor's point could not have been lost on the jury, for the trial lasted just one day.12 The references to defendant's silence were linked with defendant's exculpatory story as early as the second reference (the cross-examination of defendant), and more clearly during the rebuttal testimony of the DEA agent and the prosecutor's closing argument. While the evidence of defendant's guilt was strong, it was not "overwhelming," nor was defendant's exculpatory story "transparently frivolous."

This case falls within both of the two Chapman reversible error categories. The first Chapman category mandates reversal where the prosecutor links defendant's silence to the implausibility of his exculpatory story. The prosecutor did that here. He implied that defendant's explanation was a recent fabrication, and used defendant's failure to speak before trial to support that suggestion. Reversible error occurred whether or not defendant's testimony about his lack of knowledge that marijuana was in the car was unbelievable.

The case also falls in the second Chapman category requiring reversal. Defendant's story is not totally implausible and the indicia of guilt is not overwhelming. The only factor that might make this case at all close is the possible argument that the prosecutor's third and fourth comments, in examining the DEA agent on rebuttal and in closing argument, were invited by the defense.13 The prosecutor called the DEA agent as a rebuttal witness to refute defendant's statement that no one had questioned him. Had defendant's statement been the first reference in the case to his silence, the questioning of the agent would probably have been permissible.14 The prosecutor did not mention defendant's silence in his first summation. In final summation, however, he replied to the defense attorney's closing argument. It could be argued that this comment was also defense invited. Here again, however, the defense did not initiate the comments on silence, but only responded to the prosecutor's prior comments made during the trial.

While the comments by the defense provide some explanation for the prosecutor's last two comments on defendant's silence, the "invited error" defense is not open to the Government, since the prosecutor made the initial reference to defendant's silence.

Even discounting the comments that might be claimed to be defense invited, however, the prosecutor's other references mandate reversal.

The trial in this case occurred on September 19, 1977, more than one year after the Supreme Court handed down its decision in Doyle v. Ohio, and over two years after the Court in United States v. Hale had prohibited comments on post-arrest silence in federal courts as a matter of its supervisory power. The prosecutor's repeated reference to defendant's post-arrest silence is plain error. The conduct was intentional, obviously meant to harm the defendant. The error in the present case was not harmless beyond a reasonable doubt. Defendant is entitled to a new trial free of constitutional error.

Since this ground of reversal permits the Government to retry defendant, we must reach defendant's sufficiency of the evidence argument, because the Government may not retry defendant if the evidence at the first trial was insufficient. Burks v. United States, --- U.S. ----, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

At the close of the Government's case, defendant moved for a judgment of acquittal under Rule 29(a), Fed.R.Crim.P., alleging the Government had failed to prove that defendant intentionally and knowingly possessed marijuana with the intent to distribute. The court denied the motion. Defendant did not renew it at the conclusion of defendant's evidence. Under these circumstances, review on appeal involves merely a determination of whether affirmance of the conviction would entail a "manifest miscarriage of justice." United States v. Juarez, 566 F.2d 511, 512-513 (5th Cir. 1978).

In evaluating the sufficiency of the evidence, we must consider the evidence in the light most favorable to the Government, with all reasonable inferences and credibility choices made in support of the jury's verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942).

Viewed in this light, the largely circumstantial evidence was sufficient to establish defendant's knowledge and intent. A customs agent saw the white sedan drive to the border. He testified that it had only one occupant, the driver. The agent saw the driver get out and help load the plastic bags into the trunk of the car. The car then drove away. When pursued by an unmarked customs vehicle with siren and red light on, the white sedan at first continued without stopping, then stopped momentarily, and then accelerated again, driving along the side of the road as if looking for a side road on which to escape. When the car was finally stopped, defendant was the only occupant. In the trunk of the car was found 250 pounds of marijuana.

The proof was sufficient to support a finding that defendant knew what was in the car.15 The jury could consider defendant's flight as indicative of guilt.16 Defendant's testimony that he suspected the packages contained something illegal but he did not think it was marijuana might be sufficiently probative to convict. Such deliberate ignorance is the same as knowledge for purposes of conviction under § 841(a)(1). See United States v. Restrepo-Granda, 575 F.2d 524, 528 (5th Cir. 1978), Approving United States v. Jewell, 532 F.2d 697 (9th Cir.) (en banc), Cert. denied,426 U.S. 951, 96 S. Ct. 3173, 49 L. Ed. 2d 1188 (1976). Finally, intent to distribute could be inferred from possession of a large quantity of marijuana. United States v. Johnson, 469 F.2d 973, 977 (5th Cir. 1972).

The evidence sufficiently supported defendant's conviction, so that no manifest miscarriage of justice would ensue from an affirmance. He is not entitled to a reversal on the ground that he should have been acquitted as a matter of law. Thus, he is only entitled to a new trial because of the prosecutor's trial errors.

REVERSED AND REMANDED.