United States v. Zarauskas, 814 F.3d 509

Zarauskas, a longtime confidential informant and collector/reseller of wildlife antiques, was recorded in a voluntary, non-custodial interview (the "Café Vivaldi Interview") with FWS agents in 2010 after agents confronted him about purchasing narwhal tusks from Canadians Gregory and Nina Logan. He admitted buying multiple tusks but claimed he believed they came from a Maine collection.
Searches of his home and computer revealed seven tusks (hidden in rafters) and emails showing payments to a Canadian address; investigators later charged him with conspiracy, smuggling, and money‑laundering violations tied to illegal importation of narwhal tusks regulated by CITES, the ESA, the MMPA, and FWS regulations.
At trial Zarauskas did not testify; his defense argued he lacked the requisite knowledge that the tusks were imported unlawfully because he believed they originated in Maine (the Hildebrant Collection).
The government introduced testimony about the Café Vivaldi Interview and, over objection, TECS (CBP) border‑crossing records showing Logan’s vehicle entering Maine on dates matching tusk shipments; the prosecutor made several closing remarks about Zarauskas’s statements (and omissions) during the interview.
Zarauskas appealed, alleging (1) Fifth Amendment error from prosecutorial comments that highlighted his pretrial interview silence and his decision not to testify, and (2) erroneous admission of TECS reports under the public‑records hearsay exception, Rule 803(8).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor’s references to Zarauskas’s failure to deny wrongdoing at the Café Vivaldi Interview and related closing comments violated the Fifth Amendment by calling attention to his silence and decision not to testify	Prosecutor’s questions and closing remarks impermissibly highlighted pre‑trial silence and shifted burden, infringing Fifth Amendment rights	Government: comments related to inconsistencies in interview statements (not silence); some remarks were invited response to defense; curative instruction eliminated prejudice	Court assumed (without deciding) such comment could violate the Fifth Amendment but found any error was harmless as to objected remarks and not plain error as to unobjected remarks; conviction affirmed
Whether TECS border‑crossing records (CBP reports) are admissible under the public‑records exception to hearsay (Fed. R. Evid. 803(8))	TECS records are observations by law‑enforcement personnel and thus excluded from Rule 803(8)(A)(ii)	TECS are routine, ministerial, non‑adversarial records (license, date/time, location) and admissible under Rule 803(8)	Court held TECS reports are non‑adversarial public records and were properly admitted

Griffin v. California, 380 U.S. 609 (prosecutor may not comment on defendant's failure to testify)
Salinas v. Texas, 133 S. Ct. 2174 (plurality/concurrence left open scope of Fifth Amendment protection for pre‑custodial silence)
United States v. Rodriguez, 675 F.3d 48 (1st Cir.) (standard for reviewing prosecutorial comments and three‑part harmless‑error analysis)
United States v. Sepulveda, 15 F.3d 1161 (1st Cir.) (plain‑error review and interpreting prosecutor's remarks in context)
United States v. Dowdell, 595 F.3d 50 (1st Cir.) (distinguishing routine public records from adversarial law‑enforcement observations under Rule 803(8))
United States v. Cabrera‑Beltran, 660 F.3d 742 (4th Cir.) (TECS reports characterized as admissible non‑adversarial public records)
United States v. Orozco, 590 F.2d 789 (9th Cir.) (recordation of license numbers and routine facts is non‑adversarial)