Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

MEMORANDUM^** 

Clyde A. Peed appeals his conviction for failure to file tax returns for three years. He contends that the prosecutor, during cross-examination of a defense witness, impermissibly commented on Peed's exercise of his right to remain silent. We affirm.

FACTS

Clyde Peed was charged with willful failure to file income tax returns for the years 1981, 1982, and 1983. An IRS agent testified that during the investigation she went to Peed's home and interviewed him. The agent advised Peed that anything said or any documentation provided to the IRS could be used against him in the future. Peed nonetheless answered the questions asked by the agent. During cross-examination of the IRS agent the prosecutor asked if the agent heard from Peed after the interview. The agent testified that she had not. Peed's counsel objected and moved for a mistrial on the ground that the prosecutor impermissibly commented on Peed's exercise of his right to remain silent. The court denied the motion and instead gave a limiting instruction. The court told the jury that Peed was not obligated to contact the IRS in response to the interview and that the jury was to disregard the question and answer. Peed was convicted on all three counts and sentenced to five years probation. Peed timely appeals.

DISCUSSION

We review de novo the trial court's ruling that the prosecutor's comment did not violate Peed's right to remain silent. See United States v. Sears Roebuck & Co., Inc., 719 F.2d 1386, 1392 n. 9 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984). Although the prosecution generally may not comment on a defendant's post-Miranda statements, this rule does not apply where a defendant waived the right to remain silent and has not revoked the waiver. See United States v. Lorenzo, 570 F.2d 294, 297-98 (9th Cir. 1978); United States v. Agee, 597 F.2d 350, 354-55 (3d Cir.) (en banc), cert. denied, 442 U.S. 944 (1979). Here Peed did not assert his right to remain silent but instead answered the agent's questions. Peed also never revoked his waiver of the right to remain silent or otherwise indicated that he wished to remain silent. Accordingly, the prosecution permissibly questioned the IRS agent regarding Peed's failure to contact the IRS following his initial interview.¹ 

In addition, Peed "opened the door" to cross-examination on the subject by calling the IRS agent as a defense witness and eliciting testimony from her that Peed was cooperative during the interview. The government was thus free to rebut such evidence and fully develop the subject. See United States v. Muniz, 684 F.2d 634, 638-39 (9th Cir. 1982).

Finally, the court's instruction to the jury to disregard the prosecutor's question and the witness's answer rendered any possible error harmless beyond a reasonable doubt. See id. at 638.

AFFIRMED.