United States v. Ashley, 664 F.3d 602

Ashley worked at a USPS processing plant while her husband used stolen gift cards purchased with items traded with an unidentified Hispanic man.
Security footage shows the couple using stolen cards days after mailing; husband testified he obtained cards from the Hispanic man.
The USPS investigator attempted to interview the Ashleys; they refused to talk and provided no exculpatory account.
The district court admitted Ashley’s pre-arrest, pre-Miranda silence as part of the prosecution’s case-in-chief.
Ashley was convicted on two counts of theft of mail matter by a postal service employee; she did not testify at trial.
The government argued the silence was admissible; the defense objected under Fifth Amendment and Rule 403.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pre-arrest, pre-Miranda silence can be used as substantive evidence	Government cites circuits allowing such use	Fifth Amendment prohibits use as substantive evidence	We assume error was harmless and affirm without deciding the split
Whether the pre-arrest silence was harmless beyond a reasonable doubt	Evidence of silence contributed to guilt	Record shows alternative explanation	Harmless beyond a reasonable doubt; error did not affect verdict

United States v. Zavala, 541 F.3d 562 (5th Cir. 2008) (harmless-error standard applied to pre-arrest silence)
Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibition on commenting on silence at trial)
Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000) (pre-arrest silence as evidence in some circuits)
Oplinger v. United States, 150 F.3d 1061 (9th Cir. 1998) (pre-arrest silence admissibility discussion)
Zanabria v. United States, 74 F.3d 590 (5th Cir. 1996) (silence arising in relation to government action issues)
Salinas v. United States, 480 F.3d 750 (5th Cir. 2007) (prosecution can use non-testifying defendant's pre-arrest silence when not induced by government)