United States of America, Plaintiff-appellee, v. George Evans Harp, Edwin R. Breaux, Jean Orsini, Willardjoseph Martin, Don Garriga Chapman and Elvin Edselhaddock, Defendants-appellants, 536 F.2d 601 (5th Cir. 1976)

The Supreme Court has remanded this criminal appeal with directions to reconsider our affirmances of the convictions of defendants Breaux and Harp for the crime of escape in light of the Court's intervening decision in United States v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975).¹  Notwithstanding what portent Hale may have held, the recent decision in Doyle v. Ohio, --- U.S. ----, 96 S. Ct. 2240, 48 L. Ed. 2d ----, 44 U.S.L.W. 4902 (1976), mandates that we find that the prosecutor's comments on the post-arrest silence of Breaux and Harp constitute reversible error and we remand for a new trial.

The facts of this bizarre case are detailed in our prior opinion. 513 F.2d 786 (5th Cir. 1975). In brief, appellants are inmates at a federal penitentiary who, along with eight others, were discovered in an obvious escape attempt. A sharp-eyed prison official stopped a railroad car ostensibly loaded with mattresses as it was in the process of exiting the sally port in the prison wall. When he noted unusual scratches and markings on the bottom of the car, he ordered it back inside the wall and discovered the men concealed in an igloo-type hiding place within the railroad car's cargo of mattresses. In addition to the ten prisoners, a subsequent search of the boxcar turned up various tools, clothing, a flashlight and two authentic looking handguns made of wood. After the officials had obtained a name and number from each man, the suspected escapees were searched and placed in segregation. They were later advised of their Miranda rights and each man declined to make a statement on the matter.

At the consolidated trial for attempted escape (18 U.S.C. § 751(a)), two of those accused took the stand and presented a transparently frivolous duress defense, claiming that only their co-defendant Chapman had intended to escape. Their story was that although the escape cavern had been built big enough for ten men, Chapman constructed it alone and his plan had been unexpectedly interrupted when he came upon the others secretly drinking illegally brewed beer under the boxcar in the loading dock pit. Rather than jeopardize his scheme, Chapman kidnapped the other nine and forced his "victims" into the hideaway by threatening them with fake guns. Chapman also took the stand and corroborated the kidnapping explanation; this defense was that he was insane at the time. Neither Breaux nor Harp elected to testify; instead, their counsels in summation adopted their co-defendants' story as their defense.

To rebut this collective defense, the prosecutor highlighted in closing argument the fact that from the moment of their "deliverance" to the time of trial, no defendant had ever told prison officials or investigating officers that he was a "victim" rather than a perpetrator of the offense.²  No objection to these remarks was registered by any of the defendants. However, under a plain error review these comments necessitate reversal.

The Court's position on the use of post-arrest silence has been made clear by its most recent pronouncement in Doyle v. Ohio, --- U.S. ----, 96 S. Ct. 2240, 48 L. Ed. 2d ----, 44 U.S.L.W. 4904 (1976). Essentially adopting Justice White's concurring opinion in Hale, the Doyle Court held that it is fundamentally unfair to allow an arrested person's silence following Miranda warnings to be used to impeach an explanation subsequently offered at trial. Departing from its more flexible approach in Hale, the Court now reasons that "every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested." --- U.S. at ----, 96 S. Ct. at 2244, 44 U.S.L.W. at 4904.

Thus Doyle clearly forecloses the use of a balancing approach in this case. Were it not for Doyle's emphasis on the effect of Miranda warnings, we might have no trouble deciding that appellants' failure to promptly advise officials upon arrest of their duress is highly probative evidence that their trial explanation was likely a recent fabrication. Nevertheless, since appellants were advised of their right to remain silent, Doyle mandates that we characterize as unconstitutionally unfair the prosecution's use of such silence to defeat their kidnapping defense. Because the prosecutor's comments struck at the jugular of their story, those remarks cannot be classified as harmless.

The present convictions of appellants Harp and Breaux are required to be reversed so that they may be retried without reference to their silence.

REVERSED and REMANDED.