Justia Federal District Court Opinions

Having been specifically directed by the Supreme Court¹ to reconsider this appeal in the light of Hale² we decline the invitation of the appellee United States³ to hold that because this cause was tried prior to the decision in Hale, we should deny retroactive application of Hale to Impson's case. We are urged that United States v. Ramirez, 5 Cir. 1971,441 F.2d 950, cert. denied 1971, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113, and its progeny clearly stated the governing law in this Circuit at all times prior to the decision in Hale.

While, as pointed out by the petition, neither Hale nor our decision, United States v. Impson, 5 Cir. 1976, 531 F.2d 274, were decided on constitutional grounds,⁴ nevertheless the basis for each decision was prejudice to the rights of the defendant on trial engendered by bringing to a trial jury's attention the silence of the defendant on trial in the face of post-arrest police interrogation. We adhere to our decision that, under the circumstances present, reference to James Bobby Impson's silence carried with it an intolerably prejudicial impact, 531 F.2d 274 at 279, paraphrasing Hale, supra, 422 U.S. 171 at 179, 95 S.Ct. 2133 at 2138, 45 L.Ed.2d 99 at 107.

The petition for rehearing in the above entitled and numbered cause is ordered DENIED.