Between Silence and Speech: No Plain Doyle Error in Mixed Post‑Miranda “Partial Silence” Cases — United States v. White (10th Cir. 2025)

Court: United States Court of Appeals for the Tenth Circuit

Date: September 22, 2025

Panel: Hartz, Ebel, and Rossman, Circuit Judges (opinion by Judge Ebel)

Disposition: Conviction affirmed

Note: The court issued an “Order and Judgment,” which is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Introduction

In United States v. White, the Tenth Circuit confronted a recurring yet nuanced Miranda/Doyle problem: when a defendant, after receiving Miranda warnings, agrees to speak but declines to address a particular topic (here, whether he possessed a gun) while offering other statements that later prove inconsistent with his trial testimony, does prosecutorial use of that interview to impeach him impermissibly comment on his “post‑Miranda silence”? The court held that any Doyle error in this “mixed” posture was not plain under existing Tenth Circuit law and, in any event, did not affect the verdict.

The case arose out of a felon-in-possession prosecution (18 U.S.C. § 922(g)(1)) after Eddie White, Jr. dropped a loaded Glock 9mm with an extended magazine while fleeing from police who were responding to gunfire. White admitted possession at trial but asserted duress/justification. The government played his recorded, post‑arrest, post‑Miranda interview for the jury, and the prosecutor highlighted discrepancies between that interview and White’s trial testimony, including that White did not tell the detective the carjacking story he later offered at trial and did not deny carrying a gun.

On appeal, White argued (1) Doyle error from questioning and argument about his post‑Miranda “partial silence,” (2) prosecutorial misstatements in closing, and (3) cumulative error. Reviewing only for plain error (no contemporaneous objections were made), the Tenth Circuit affirmed.

Summary of the Opinion

Doyle/partial silence claim (plain error review): The court assumed without deciding that a Doyle error may have occurred but concluded the error was not “plain” because the case falls between two lines of Tenth Circuit authority—some finding Doyle violations where defendants first asserted an affirmative defense at trial after saying little or nothing about it post‑Miranda, and others permitting impeachment with inconsistencies where the defendant chose to speak without invoking silence. Most challenged remarks targeted inconsistencies, not silence; only one question arguably touched the defendant’s partial silence. Even if there were plain error, it did not affect substantial rights because jurors watched the entire recorded interview, during which the detective repeatedly invited White to explain any justification.
Prosecutorial misstatement in closing (plain error review): Even assuming the prosecutor’s brief statement that White and Clark were “together” misstated Officer Caiharr’s testimony (who was unsure if they “appeared to be together”), there was no reasonable probability of a different outcome given the instructions that argument is not evidence and the record as a whole.
Cumulative error: Rejected. Only preserved errors and unpreserved errors that are “plain” are included in cumulative-error analysis; White failed to show cumulative prejudice.
Second Amendment challenge: White sought to preserve a claim that § 922(g)(1) is unconstitutional, but the panel noted that the circuit had rejected that argument in Vincent v. Bondi (2025), with a petition for certiorari pending.

Factual and Procedural Background

Police responded to reports of gunfire in a Kansas City, Kansas neighborhood on May 8, 2018. Two bullet-riddled cars were found on Brown Avenue: a silver Mercedes owned by White and a recently carjacked purple Dodge Charger. Officers followed a white car (driven by White’s mother) toward a dead end, saw two men (later identified as White and Frederick Clark) in a field, and watched them run in opposite directions upon noticing the patrol car. As White ran, he dropped a fully loaded Glock 9mm pistol with an extended magazine. Officer Caiharr chased and arrested White. Clark, later arrested, possessed the keys to the stolen Charger; a third man, Dahrell Johnson, was also arrested. An empty mini‑Draco pistol was recovered nearby. DNA linked White to both firearms, including on their triggers.

At the station, Detective Miller administered Miranda warnings verbally and in writing. White agreed to say “just a little bit.” During an approximately 45-minute recorded interview, White discussed a months‑long dispute with an unidentified adversary who had shot him in the foot on New Year’s Eve and allegedly continued to harass and threaten him. White hinted he had armed himself for protection, stating, “Do you think a person that got shot is not going to have some kind of gun whether he is supposed to have one or not?” But he expressly refused to say whether he had a gun on May 8 and declined to identify his adversary, stating fear of retaliation. He never asked for a lawyer or to stop the interview; the detective ended it.

Charged under § 922(g)(1), White admitted at trial that he possessed the Glock but raised an affirmative defense of duress/justification, testifying that unknown assailants attempted to carjack him, a gun was dropped near his hiding spot, a struggle ensued over a mini‑Draco, and he ultimately grabbed the Glock from the ground and fled—dropping it in view of the officers to avoid being perceived as a threat. He denied knowing Clark.

The government played the entire recorded interview for the jury, arguing that Detective Miller repeatedly invited White to explain any lawful justification (including self‑defense) but White did not tell the carjacking story he later offered at trial. The prosecutor also asked Detective Miller whether White ever said “I didn’t carry a gun,” to which the detective answered “Never said it.” The jury convicted, and White received a 120‑month sentence.

Analysis

Precedents Cited and Their Role in the Decision

Miranda v. Arizona, 384 U.S. 436 (1966): Establishes warnings designed to protect the Fifth Amendment privilege. A suspect may waive rights, answer some questions, and decline others; the police must honor an indication that the suspect does not wish to be interrogated.
Doyle v. Ohio, 426 U.S. 610 (1976): Due process prohibits using a defendant’s post‑arrest, post‑Miranda silence to impeach his trial testimony. The fairness premise: the government cannot assure the right to remain silent and then punish the exercise of that right.
Anderson v. Charles, 447 U.S. 404 (1980): Distinguishes Doyle: where a defendant speaks after warnings, the prosecution may impeach with inconsistencies between the defendant’s prior statements and trial testimony. Such questioning targets contradiction, not silence.
United States v. Canterbury, 985 F.2d 483 (10th Cir. 1993), and United States v. Ward, 135 F.4th 1265 (10th Cir. 2025): When a defendant, post‑Miranda, gives an inculpatory account but later asserts for the first time at trial an affirmative defense (e.g., duress/justification), using the defendant’s prior silence about that defense to impeach him can be Doyle error. These cases protect a defendant who spoke but “remained silent” as to a defense.
United States v. May, 52 F.3d 885 (10th Cir. 1995), and Twyman v. Oklahoma, 560 F.2d 422 (10th Cir. 1977): No Doyle violation where the defendant did not invoke silence but chose to speak, and the prosecution highlighted inconsistencies between the defendant’s multiple versions. The focus is on contradiction, not on drawing an inference of guilt from silence.
United States v. Pemberton, 2000 WL 912741 (10th Cir. July 7, 2000) (unpublished): On plain-error review, even if reference to a defendant’s omission about a key fact during the post‑Miranda interview could be a Doyle problem, it was not “plain” where the posture was ambiguous—i.e., the defendant’s statements suggested he would have mentioned the fact if true.
Plain-error framework: United States v. Moore, 96 F.4th 1290 (10th Cir. 2024); United States v. Rosales‑Miranda, 755 F.3d 1253 (10th Cir. 2014). An error must be clear or obvious and affect substantial rights; the court may then correct if it seriously affects fairness, integrity, or public reputation.
Constitutional-error relaxation: United States v. Miller, 891 F.3d 1220 (10th Cir. 2018) (plain-error applied “less rigidly” to potential constitutional errors).
Prosecutorial misconduct in closing (plain error): United States v. Vann, 776 F.3d 746 (10th Cir. 2015) (two-step inquiry: plainly improper, and affected substantial rights); see also United States v. Sweet, 107 F.4th 944 (10th Cir. 2024); United States v. Rogers, 556 F.3d 1130 (10th Cir. 2009) (arguments are not evidence instruction matters); United States v. Burgess, 99 F.4th 1175 (10th Cir. 2024).
Elements and prejudice standard reference: United States v. Mayfield, 134 F.4th 1101 (10th Cir. 2025) (elements of § 922(g)(1) and the “reasonable probability” standard for substantial-rights prejudice).
Cumulative error: United States v. Lopez, 131 F.4th 1114 (10th Cir. 2025); United States v. Little, 119 F.4th 750 (10th Cir. 2024).
Second Amendment preservation: Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025) (rejecting a facial Second Amendment challenge to § 922(g)(1)); petition for certiorari pending.

Legal Reasoning

1) Framing the Doyle issue as a “close call” under existing circuit law: The court placed White’s case “in the middle” of its own precedents. On the one hand, like Ward and Canterbury, White first advanced his affirmative defense (duress/justification) at trial. On the other hand, unlike those cases, White’s post‑arrest statements included content that conflicted with the trial narrative (months‑long feud versus trial claim of an opportunistic carjacking by unknown assailants). That mixed posture triggered the competing logic of May/Twyman (permitting impeachment with inconsistency when the defendant chose to speak) and Ward/Canterbury (forbidding impeachment grounded in post‑Miranda silence regarding an affirmative defense).

2) Plain-error prong two (“plainness”) not satisfied: Because prior Tenth Circuit decisions point in different directions depending on fine-grained factual distinctions, whether the prosecutor’s questions and argument crossed the Doyle line was not “clear or obvious under current law.” The court found especially important that:

Most of the challenged questioning and argument targeted inconsistencies (permissible under Anderson and May) rather than inviting an inference of guilt from White’s refusal to answer a specific question about whether he had a gun.
Only a single question—“Did he ever say, ‘I didn’t carry a gun’?”—arguably touched directly on White’s partial silence about gun possession. In context, that lone question did not render the case a clear Doyle violation under established law.
Following the Pemberton approach, ambiguity in the interview content (White declined to say if he had a gun but also intimated he did in light of prior threats) precluded a finding that any Doyle error was plain.

3) No effect on substantial rights (plain-error prong three): Even if the court assumed a plain Doyle error, White failed to show a reasonable probability of a different outcome. Jurors watched the entire interview—without objection—and saw Detective Miller repeatedly invite White to explain a lawful reason for possessing a firearm (including self‑defense). White declined to provide the carjacking story he later advanced at trial. Thus, any added prosecutorial emphasis on his missed opportunity was cumulative of the recording itself. And the single question about whether White ever denied having a gun was not outcome‑determinative given the overwhelming evidence of possession (including DNA) and White’s trial admission.

4) Prosecutorial misstatement in closing: The prosecutor asserted that Officer Caiharr “saw” White and Clark “together,” while the officer actually testified he could not say whether they were together, only that they were in the same field and ran in opposite directions upon seeing the patrol car. Even if this was plainly improper, it did not affect substantial rights—particularly because the jury was instructed that arguments are not evidence and the statement was brief and peripheral to the core possession question.

5) Cumulative error: The court includes only preserved errors and unpreserved errors that are plain in any cumulative analysis. White did not carry his burden to show cumulative prejudice.

Impact and Practical Implications

Clarifying the “mixed” partial-silence scenario on plain-error review: White adds a significant, practical refinement to Tenth Circuit Doyle jurisprudence. Where an arrestee, after Miranda warnings, both (a) declines to answer a specific incriminating question (e.g., “Did you have a gun?”) and (b) volunteers other statements that later contradict his trial testimony, any Doyle claim raised for the first time on appeal will likely fail at the “plainness” step unless the prosecutor’s conduct unmistakably invites the jury to infer guilt from the defendant’s silence rather than from inconsistencies. This opinion underscores that:

Impeachment with inconsistencies remains permissible.
Direct commentary on a defendant’s choice not to answer a particular post‑Miranda question risks Doyle problems, but in a mixed factual context such error may not be “plain.”
Playing the entire interview for the jury without objection can blunt prejudice arguments because the jury itself sees the defendant being invited to present a defense and declining to do so.

For prosecutors:

Focus impeachment on inconsistencies between the recorded interview and trial testimony; avoid framing that penalizes a defendant’s decision not to answer a specific question (“why didn’t you say X?”) in a way that suggests guilt from silence.
Where a defendant’s narrative shifts over time, emphasize the conflict in versions, not the defendant’s invocation or refusal to answer specific topics.
In closing, avoid overstating equivocal testimony (“together” vs. merely “in the same field”), and rely on the record to minimize misstatement risks.

For defense counsel:

Preserve Doyle objections contemporaneously. The “close call” character of mixed cases can defeat plain-error claims on appeal.
Consider motions in limine to cabin questioning about post‑Miranda omissions regarding an affirmative defense; request limiting instructions distinguishing inconsistency impeachment from improper comment on silence.
If an interview contains both refusals to answer and potentially prejudicial narrative omissions, weigh carefully whether to permit the government to play it in full; selective redactions may be warranted.
When asserting duress/justification, ensure a clear record of any explicit invocation of the right to remain silent on that subject to strengthen Doyle protections.

On § 922(g)(1) challenges: The panel noted that the Tenth Circuit has rejected a Second Amendment attack on § 922(g)(1) in Vincent v. Bondi, with certiorari pending. For now, in this circuit, such challenges are foreclosed at the panel level.

Complex Concepts Simplified

Miranda warnings: Before custodial interrogation, police must inform suspects of their rights, including the right to remain silent and to counsel. A suspect may talk, remain silent, or stop answering at any time.
Doyle violation: After Miranda warnings, the government typically may not use a defendant’s silence against him. Doing so can violate due process because the defendant was told silence is his right.
Partial silence: A defendant may answer some questions but refuse others. Prosecutors cannot use the refusal itself to suggest guilt, but they can impeach with inconsistencies in what the defendant chose to say.
Impeachment by inconsistency versus comment on silence: It’s generally proper to confront a defendant with differing stories he has told; it’s improper to argue that his silence or refusal to answer a question shows guilt. The line can be thin and fact-dependent.
Duress/necessity/justification (as an affirmative defense): A legal excuse for otherwise criminal conduct, typically requiring an imminent threat, no reasonable lawful alternative, and a causal nexus between the threat and the offense. The defendant bears the burden to produce evidence supporting the defense.
Plain-error review: On appeal, if no objection was made, the defendant must show (1) error, (2) that’s “plain” (clear or obvious), and (3) that affected substantial rights (a reasonable probability of a different result). Only then may the court correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.
“Arguments are not evidence” instruction: Jurors are told to decide based on testimony and exhibits, not counsel’s arguments. This instruction often diminishes claims that misstatements in closing affected the outcome.
Cumulative error: Even if individual errors don’t warrant reversal, their combined effect could. But only preserved errors and unpreserved errors that are plain are tallied.

Conclusion

United States v. White adds an important, practical clarification to the Tenth Circuit’s Doyle jurisprudence: when a post‑Miranda interview reflects both a defendant’s refusal to answer a particular inculpatory question and statements that later conflict with trial testimony, the government’s emphasis on inconsistencies will typically withstand plain-error review. A single question that arguably comments on partial silence—particularly when a full recording shows the defendant repeatedly invited to provide a justification—will rarely warrant reversal absent a timely objection and clear prejudice.

The opinion also reiterates core appellate themes: contemporaneous objections matter, minor misstatements in closing rarely justify reversal when jurors are properly instructed, and cumulative error requires identifiable plain or preserved errors causing cumulative prejudice. Finally, at least for now, § 922(g)(1) remains enforceable in the Tenth Circuit notwithstanding ongoing Second Amendment litigation.

Practitioners should read White as a cautionary tale on both sides: defense counsel should preserve Doyle issues early and often, especially before allowing the jury to see an entire interview that contains both omissions and equivocal statements; prosecutors should frame impeachment around contradictions rather than silence. In short, White “threads the needle” between Doyle and Anderson in a mixed factual context and, on plain-error review, places the risk of non‑objection squarely on the defense.