Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: John R. Gibson, Circuit Judge.
Submitted: April 17, 2008
Before LOKEN, Chief Judge, JOHN R. GIBSON, and MELLOY, Circuit Judges.
Natasha Gentry was convicted of one count of possession with intent to distribute methamphetamine and one count of carrying a gun during a drug trafficking offense. On appeal she argues that the district court erred in allowing the government to elicit testimony concerning her post-arrest silence which violated her due process rights. She also argues that the government failed to produce evidence sufficient to support the verdict and that the court violated her substantive rights when it refused to give a jury instruction on the lesser included offense of simple possession of methamphetamine. We reverse and remand for a new trial.
On August 31, 2005, private security guards drove to an apartment building at 2732 Charlotte in Kansas City, Missouri to serve an eviction. When the security guards arrived, they saw a white Cadillac parked in the lot. One of the guards saw a man run away from the car. After the Cadillac left, the guards discovered a plastic baggie of methamphetamine on the ground where the car had been parked. When the Cadillac pulled back into the parking lot while the guards were waiting for police to arrive, the guards surrounded the car and ordered the driver, Natasha Gentry, to get out of the car. Police officers searched the car after they arrived and found various chemicals and equipment associated with the production of methamphetamine, including starter fluid, a funnel, coffee filters, rubber tubing, and ephedrine. The officers also discovered several firearms in the car and a glass pickle jar containing a cloudy white substance. The substance later tested positive for the presence of methamphetamine.
The jury convicted Gentry of aiding and abetting in the possession with intent to distribute 50 grams or more of methamphetamine, and of carrying a firearm in relation to a drug trafficking offense. The district court granted her motion for judgment of acquittal on one count of conspiracy in relation to the other offenses.
Gentry was arrested at the scene and was taken to a police station. While she was in custody, a detective asked her a series of biographical question and gave her a Miranda*fn1 warning. Gentry invoked her right to counsel and chose to stop the questioning. At trial, Gentry's counsel objected to a line of questions during Gentry's cross-examination regarding her silence after being Mirandized. She argues that the evidence elicited of her post-Miranda-warning silence violated her due process rights and is reversible error. We review claims of constitutional error de novo. United States v. Washington, 318 F.3d 845, 854-55 (8th Cir. 2003).
The record reveals that the prosecution made a number of inquiries and comments during Gentry's cross-examination regarding her post-arrest silence and request for counsel:
Q: Now, at that time [after being arrested] you didn't volunteer [to Detective Manley] that that baggie was -- that didn't belong to you, did you?
A: No. But I don't believe he asked me. Basically he asked me [for biographical data]. And then he advised me that anything I say can and will be used against me in the court of law, and that I was being charged with the things found in that vehicle. At that point and time I remained quiet..
Q: But you didn't at that point volunteer, like you had previously to the security guards, that that wasn't your baggie or . . . those weren't your drugs, that wasn't your car?
A: Like I had said, he had told me anything that I say to him can and will be used against me and at that point I remained quiet. I asked him, I believe, . . . that I would like an attorney to be present with me before I speak.
Q: [O]nce this case was preparing for trial, . . . was the first time that you told your defense attorney about the identity of Rocky Johnson,*fn2 isn't that right?
A: He was my attorney. Yes, ma'am.
Q: And you'd never told anyone else before about Rocky Johnson being present at the scene or anything like that up ...