Summary Calendar UNITED STATES OF AMERICA v. Chad Walter Dee Pope

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40550
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHAD WALTER DEE POPE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 2:07-CR-9-ALL
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Chad Pope appeals his conviction of possession with intent to distribute
marihuana. He argues that his conviction should be vacated on plain error re-
United States Court of Appeals
Fifth Circuit
F I L E D
November 12, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40550
1 See Miranda v. Arizona, 384 U.S. 436, 479 (1966) (“[W]hen an individual is taken into
custody . . . [h]e must be warned prior to any questioning that he has the right to remain si-
lent, that anything he says can be used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an attorney one will be appointed for
him prior to any questioning if he so desires.”).
2
view because a Border Patrol agent testified, under questioning from Pope’s at-
torney, that Pope had invoked his right to remain silent after authorities read
him his Miranda rights.1 Pope relies on the holding in Doyle v. Ohio, 426 U.S.
610, 617-20 (1976), that a prosecutor may not use a defendant’s silence, at the
time of arrest and after receiving Miranda warnings, to suggest, for impeach-
ment purposes, that the defendant’s exculpatory story was made up at a later
time.
The testimony arose after the Border Patrol agent testified that Pope ad-
mitted being present during at least part of the time during which the trailer he
was hauling, containing marijuana, was being loaded. Pope’s attorney tried to
undermine that testimony by pointing out that the agent never wrote down
Pope’s statement in his report. Pressing the agent, the attorney asserted that
the agent “could have had [Pope] sign a statement . . . based on . . . what you
stated he told you?” The agent explained that such was not possible, because
Pope refused to make a statement after he was read his Miranda rights. Pope
concedes that his refusal to make a statement after being read his Miranda
rights was not mentioned again, even in the government’s closing argument.
Because Pope’s attorney elicited the agent’s testimony, United States v.
Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975); see also Doyle, 426 U.S. at 619
n.11 (citing Fairchild, 505 F.2d at 1383), we AFFIRM.

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