United States v. Ward.
No. 23-7088. 5/6/2025. E.D.Okla. Judge Bacharach. Miranda Rights—Post-Arrest Partial Silence—Due Process—Cross-Examination.
May 6, 2025
Ward was arrested for participating in a violent attack on three men as they returned from a fishing trip in Indian Country. Ward was advised under Miranda that he had a constitutional right to stay silent when he was arrested. He admitted to his participation in the attack after his arrest, but at trial, Ward testified that he had participated in the attack out of fears for his own safety because of threats from co-participant Armenta. The prosecutor cross-examined Ward about his failure to mention these threats when he had been questioned after the arrest and then reminded the jury in closing argument of Ward’s post-arrest silence on the issue. Ward was convicted of assault resulting in serious bodily injury in Indian Country; assault with a dangerous weapon with an intent to do bodily harm in Indian Country; and use, carrying, brandishing, and discharge of a firearm during and in relation to a crime of violence.
On appeal, Ward argued that the district court denied him due process by allowing the government to use his post-arrest silence against him. Ward didn’t make this argument in district court, so the Tenth Circuit reviewed for plain error. It determined that United States v. Canterbury, 985 F.2d 483 (10th Cir. 1993), where a defendant claimed entrapment as a defense to unregistered possession of a firearm at trial but not after his arrest, was controlling. In Canterbury, the Tenth Circuit concluded that the prosecutor’s questioning at trial about Canterbury’s failure to mention entrapment after the arrest was improper because the questions were not designed to bring out inconsistencies between the defendant’s trial testimony and his statements at the time of arrest, and the questioning suggested an inference that the defendant was guilty because an innocent person would have raised the defense theory to the arresting officers. The Tenth Circuit determined that Canterbury’s trial statement didn’t negate his right to stay silent on other matters. Similarly, Ward told officers about some aspects of his participation in the crime but not others. The prosecutor questioned him about his failure to tell law enforcement officers about Armenta’s threats, and he argued in closing that this omission suggested that Ward had lied at trial. Accordingly, the prosecutor obviously violated Ward’s due process by unfairly challenging his credibility based on his exercise of the right to remain silent. Further, because the defense relied on Ward’s credibility and the government attacked that credibility, the cross-examination about his post-arrest silence affected his substantial rights; and the error affected the fairness, integrity, or public reputation of judicial proceedings.
The convictions were vacated and the case was remanded for further proceedings.