Lead Opinion
Defendants Mario Wilchcombe, Nathaniel Erskine Rolle, and Alteme Hiberdieu Beauplant appeal from a judgment entered in the United States District Court for the Southern District of Florida (Altonaga, J.) following a jury trial convicting (1) all defendants of conspiring to possess with intent to distribute and possessing with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana while on board a vessel subject to U.S. jurisdiction, in violation of 46 U.S.C. §§ 70503(a) and (b) and 70506(a), 21 U.S.C. §§ 960(b)(1)(B) and (2)(G) and 18 U.S.C. § 2; and (2) Rolle individually of failing to obey a lawful order to heave to his vessel of which he was the master, operator, and person in charge, in violation of 18 U.S.C. § 2237(a)(1). The district court sentenced Beauplant and Wilchcom-be principally to 120 months’ imprisonment and Rolle to 135 months’ imprisonment.
On appeal, the defendants argue that (A) the district court lacked subject matter jurisdiction over the prosecution; (B) the evidence was insufficient to support Wil-chcombe’s conviction; (C) the district court erred in failing to declare a mistrial based on improper prosecutorial comment on Rolle’s and Beauplant’s post-custody, pre-Mimnda silence;. (D) the district court erred in denying Beauplant’s motion to dismiss on the basis of the unavailability of favorable evidence; and (E) the district court abused its discretion in admitting uncharged misconduct evidence against Beauplant. Finding no merit in any of these arguments, we AFFIRM.
I.
A.
Keno Wade Russell, a Bahamian fisherman and cooperating witness, and members of the Coast Guard testified to the following facts.
In April 2014, Russell met in the Bahamas with a drug smuggler known as Kool Aid, Rolle, and two other men. During the meeting, Rolle agreed to use his small fishing boat, located in Haiti, to bring drugs from Haiti to the Bahamas. Kool Aid gave Rolle money to fly to Haiti and arranged to travel with Russell to Haiti via freighter. The men agreed that once Kool Aid and Russell arrived in Haiti, they would meet with Rolle; Mario Wilchcombe, a longtime acquaintance of Russell; and another drug smuggler named Enoch.
After arriving in Haiti, Kool Aid and Russell met Enoch, Rolle, Wilchcombe, and Beauplant on the íle de la Tortue, where they remained for a week. Russell, Rolle, Beauplant, and others (not including Wilchcombe) loaded cocaine and marijuana onto Rolle’s boat, stacking the bales on the deck and placing drugs in the center console. When the boat was ready for departure, a 17-year-old Haitian named either
On May 3, 2014, at around seven or eight in the evening, Rolle’s boat left Haiti with Rolle, Wilchcombe, Beauplant, Russell, and Henri on board. A few hours later, the crew of the United States Coast Guard cutter Charles Sexton, ■ which was patrolling the' ocean between Cuba and Haiti, received a tip that a boat carrying drugs had recently departed from the lie de la Tortue. Shortly thereafter, the Charles Sexton began tracking Rolle’s boat, which was powered by two engines and was heading north at 10 to 15 knots per hour, Because of the boat’s relatively high speed, Lieutenant Scott Nichols and four other crewmen left the cutter to pursue the target in a small rubber chase boat.
As the chase boat approached, Rolle’s boat increased its speed and continued to travel with its lights off. The chase boat turned on its lights, spotlight, flashing blue lights, and siren. After the chase boat fixed Rolle’s boat in its spotlight, its crewmem-bers saw that Rolle’s boat was not flying a flag. At that point, Petty Officer Michael Irigoyen ordered Rolle’s boat to stop. Instead, Rolle further increased the speed of his boat and made a series of evasive turns while repeatedly looking back at the chase boat. During the pursuit, two men in addition to Rolle stood on the deck of Rolle’s boat and spent approximately 10 minutes throwing large packages into the water. After they finished, Rolle slowed his boat.
After the chase boat pulled alongside Rolle’s boat, Lieutenant Nichols saw two men on board in addition to Rolle and the two men who had been jettisoning packages. One of the newly-spotted men was near the front and the other was near the back by the engines. It appeared to Lieutenant Nichols that the man near the engines, later identified as Wilchcombe, had been laying on the deck. Russell explained at trial that Wilchcombe had been holding a loose wire in place so that one of the engines, which had malfunctioned during the trip, could continue to function.
Two members of the Coast Guard boarded Rolle’s boat and'turned off the engines. They returned to the chase boat and' Lieutenant Nichols questioned the men on Rolle’s boat to determine the identity of the captain, the boat’s country of registration, and its destination. Rolle responded that he was from the Bahamas and owned the boat, which was registered in the Bahamas. He said that two of the other men on the boat were Bahamian and that the other two were Haitian. He said that he was traveling between Bahamian islands. To Lieutenant Nichols, the men on Rolle’s boat appeared calm and relaxed. None asked to speak with him privately.
Lieutenant Nichols radioed the information provided by Rolle back to the cutter, and the Coast Guard requested that the Bahamian Government provide a statement of no objection (“SNO”), which would allow the Coast Guard to board Rolle’s Bahamian-registered boat for law-enforcement reasons. The time between the request and the response was approximately two hours. While the crew of the chase boat waited, Lieutenant Nichols saw Rolle speaking with the man later identified as Russell and directed them to stop.
After receiving word from the cutter that the Bahamian Government had confirmed that the target vessel was registered in the Bahamas and had provided the SNO, Lieutenant Nichols and Petty Officer Irigoyen boarded Rolle’s boat, frisked the occupants, and found several pocketknives on the men and nearly $2,000 in cash in Rolle’s waistband. In response to a question, Rolle said that he and two friends were giving a ride to two other
By the time that Lieutenant Nichols and Petty Officer Irigoyen completed the search and returned to the cutter with the suspects, the cutter’s crew had recovered 40 package's that had been thrown overboard, along with two duffel bags and a GPS. The packages contained 35 kilograms of cocaine and 860 kilograms of marijuana. The Coast Guard detained the men aboard the cutter for a few days during which time they learned their identities.
Throughout their detention on the chase boat and the Charles Sexton, the men were placed in leg irons. They were not read their Miranda rights. None were interrogated nor did any ask to speak privately with any members of the Coast Guard. However, at one point, when Petty Officer Irigoyen and Rolle were alone together, Rolle expressed his belief that Petty Officer Irigoyen was the boss and asked him to cut him some slack. Similarly, Russell told Petty Officer Irigoyen that he had fallen on hard times after his fishing boat broke down and he was unable to provide for his family.
After a few days, the men were transferred from the Charles Sexton to a second Coast Guard cutter, the Paul Clark, and Henri was repatriated to Haiti. After the transfer, Beauplant told an interpreter that he was -Haitian, that he had been stranded, and that the Bahamians had offered him a ride. He also said he had been traveling with Henri, an orphan from his village, to whom he was not related.
At trial, Rolle, the only defendant to testify, told a very different story. He claimed that Russell had tricked him and then forced him and Wilchcombe at gunpoint to bring the drugs from Haiti to the Bahamas. He also testified that Beauplant and- Henri had stowed away in his boat and that he did not know they were there until after the journey was well underway,
B. '
On May 22, 2014, Rolle, Wilchcombe, Beauplant, and Russell were indicted for conspiring to possess with intent to distribute and possessing with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana while on- a vessel subject to the jurisdiction of the United States, in violation of the Maritime Drug Law Enforcement Act (“MDLEA”), 46 U.S.C. §§ 70503(a) and (b) and 70506(a), 21 U.S.C. §§ 960(b)(1)(B) and (2)(G) and 18 U.S.C. § 2. Rolle was also charged with failing to obey a lawful order to heave to his vessel, of which he was the master, operator, and person in charge, in violation of 18 U.S.C. § 2237(a)(1).
Russell pleaded guilty to conspiracy to distribute cocaine and marijuana and agreed to cooperate with the government by testifying at the trial of Rolle, Wil-chcombe, and Beauplant.
On July 28, 2014, the trial of Rolle, Wilchcombe, and Beauplant began. The district court empaneled two juries, one for Rolle and Wilchcombe. and the other for Beauplant, to avoid any potential prejudice that could result from evidence of Beauplant’s prior criminal trafficking. All three men were convicted on all charges. The district ■ court sentenced . Beauplant and Wilchcombe principally to 120 months’ imprisonment and Rolle to 135 months’ imprisonment.
A.
The defendants advance multiple arguments in urging us to conclude that the district court lacked jurisdiction over this case. We review de novo “a district court’s interpretation and application of statutory provisions that go to whether the court has subject matter jurisdiction” and review factual findings related to jurisdiction for clear error. United States v. Tinoco,
1.
Wilchcombe and Rolle first argue that the MDLEA violates the Due Process Clause because it does not require proof of a nexus between the United States and a defendant. Because we have previously rejected this argument, United States v. Campbell,
We cannot reconsider this issue, nor do we support en banc review. The text of the MDLEA does not require a nexus between the defendants and the United States; it specifically provides that its prohibitions on drug trafficking are applicable “even though the act is committed outside the territorial jurisdiction of the United States.” 46 U.S.C. § 70503(b). The Constitution and principles of international law support our interpretation of the MDLEA, Campbell,
2.
Rolle, Wilchcombe, and Beauplant argue that the government failed to establish jurisdiction over Rolle’s boat because the SNO obtained from the Bahamian Government does not conform to the requirements of 46 U.S.C. § 70502(c)(1)(C).
The MDLEA permits the United States to exercise jurisdiction over “a vessel registered in a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States.” 46 U.S.C. § 70502(c)(1)(C). Under the MDLEA, a foreign nation, can consent or waive objection “by radio, telephone, or similar oral or electronic means[,] and [this consent or waiver] is proved conclusively by certification of the Secretary of State or the Secretary’s des-ignee,” id. at § 70502(c)(2), although courts must still determine whether the MDLEA’s jurisdictional requirements have been met, see United States v. McPhee,
The defendants focus specifically on claimed defects in the language of the SNO, but we have never required the language in SNOs to precisely mirror the language contained in the MDLEA; to the contrary, we have approved of SNOs that did not. For example, in United States v. Brant-Epigmelio,
Here, Coast Guard Commander Fazio, a designee of the Secretary of State, certified to the district court that “the Government of the United States requested the [Bahamian Government] consent to the United States exercising jurisdiction over the vessel” and the Bahamian Government “notified the Government of the United States that it waived its right to exercise primaiy jurisdiction over the vessel.” The language informing the United States that the Bahamian Government “waived its right to exercise primary jurisdiction over the vessel” is similar to the language in the SNO that we approved in Persaud, differing only in that it mentions the vessel instead of the specific defendants. In fact, the SNO in this case actually hews closer to the MDLEA than the Persaud SNO, because both this SNO and the MDLEA speak of a waiver of jurisdiction over the vessel and not the defendants.
Although Persaud and Brant-Epigmelio do not bind us because they are unpublished opinions, we are persuaded that their approach is correct. Accordingly, we reiterate that, as long as the substance of the consent or waiver is communicated, the language contained in SNOs need not exactly track the language contained in § 70502(c)(1)(C) to satisfy the requirements of the MDLEA. The SNO in this case was sufficient to inform the United States that the Bahamian Government consented to the United States’ exercise of jurisdiction over Rolle’s vessel.
3.
Beauplant and Rolle argue here, as they did to the trial court, that the evidence at trial demonstrated that the Coast Guard misled the Bahamian Government about the documentation of the registration status of Rolle’s boat that was available to the Coast Guard when it was seeking the SNO. If the Bahamian Government had been accurately informed of the existing documentation, the defendants argue, the Coast Guard would have had to await the arrival of a Bahamian law enforcement officer before boarding the boat.
We agree with Beauplant and Rolle that the evidence presented at trial suggests that the Coast Guard may have incorrectly informed the Bahamian Government about the registration documents provided by Rolle to the Coast Guard. An affidavit from Commander Fazio, on which the district court relied before trial to determine whether the U.S. had jurisdiction over Rolle’s boat, states that when the Coast Guard initially contacted the Bahamian Government, the Coast Guard stated that they had found the registration number painted on the hull of the boat. The affidavit also states that no other registration information was provided to the Coast Guard at this time. Lieutenant Nichols’ trial testimony supports this version of events. He testified that he recovered the registration documents in one of the bags
At'trial, Russell provided contradictory testimony. He asserted that Rolle showed his' registration' card to the Coast Guard before the officers boarded the boat. This version of events is supported by the fact that the registration card was listed in the inventory of objects found on Rolle when he was searched.
There are multiple reasons why this inconsistency does not lead us to fault the district court’s decision to exercise jurisdiction over the defendants. First, given the contradictory evidence in the record, we cannot say that the district court committed “clear error,” Tinoco,
We accordingly reject this challenge to the district court’s exercise of jurisdiction.
B.
Wilchcombe argues that the government’s evidence only proved that he was present at the scene of the drug trafficking conspiracy, not that he participated in it. Put another way, he asserts that the government did not disprove his “mere presence” defense to the charges of conspiring to possess with intent to distribute and possessing with intent to distribute five kilograms or more of cocaine and 100 kilograms or more of marijuana.
We review de novo challenges to the sufficiency of the evidence supporting a criminal conviction. United States v. Dominguez,
In maritime drug-trafficking cases, “[a] jury may find knowledgeable, voluntary participation from presence when the presence is such that it would be unreasonable for anyone other than a knowledgeable participant to be present.” United States v. Cruz-Valdez,
*1189 (1) [the] probable length of the voyage, (2) the size of the contraband shipment, (3) the ... close relationship between captain and crew, (4) the obviousness of the contraband, and (5) other factors, such as suspicious behavior or diversionary maneuvers before apprehension, attempts to flee, inculpatory statements made after apprehension, witnessed participation of the crew, and the absence of supplies or equipment necessary to the vessel’s intended use.
Tinoco,
Here, the evidence is sufficient to sustain Wilchcombe’s convictions for conspiring to possess with intent to distribute and possessing with intent to distribute under the MDLEA. See id. at 1123-24 (stating that “the circumstances that were sufficient to support the appellants’' conspiracy conviction also support their conviction on the possession count” under the MDLEA). Plainly, given the relatively small size of the boat, 895 kilograms, or nearly one ton, of narcotics is a “large quantity.” See id. But even if that were not the case, ample additional evidence defeats the insufficiency argument. As Russell testified, some of the drugs were stored on deck. A reasonable jury could have inferred on the basis of this testimony that the drugs would have been obvious to Wil-chcombe at the start of the voyage. Testimony from both Russell and members of the Coast Guard permitted the jury to find that Wilchcombe had aided the boat’s attempts to evade capture by lying on the deck and holding a wire in place so that the second-engine could operate. Finally, Russell’s testimony provided evidence that Wilchcombe had close relationships with Rolle, who captained the boat; with Beau-plant;- and with Russell himself. Russell specifically testified that he had known Wilchcombe for a long time and that Wil-chcombe had spent time before the voyage getting to know the other passengers. The relationships between Wilchcombe and the crew members made it more likely that Wilchcombe knew of the presence of the drugs on the boat.
In sum, because a reasonable jury could have concluded from the government’s evidence that Wilchcombe was not simply present on Rolle’s boat but was a knowing participant in the conspiracy, we reject Wilchcombe’s argument that the evidence was insufficient to support his convictions.
C.
Beauplant and Rolle argue, that the. district court erred when it refused tq declare a mistrial based on the governments comments at trial on their silence after they were taken into custody.
The defendants did not receive a Miranda warning at any point while they were in the custody of the Coast Guard and government witnesses testified about the defendants’ silence at several points after their boat had been' intercepted. For the purposes of this discussion, we assume that the defendants were in custody from the time that the Coast Guard crew first boarded Rolle’s boat, turned off the motor, and returned to their own boat. At this time the defendants were kneeling on board their boat with their hands draped over the gunnel so that the Coast Guard could watch them. Petty Officer Irigoyen testified that the Coast Guard “made it clear that we had no intent on having a conversation” with them but did. not entirely stop them from talking to the Coast Guard or to each other. The government elicited testimony that the defendants remained quiet and did not attempt to talk to
A district court’s decision not to grant a mistrial on the basis of comments regarding a defendant’s choice to remain silent is reviewable for abuse of discretion. United States v. Chastain,
The defendants correctly point out that the circuit courts do hot agree as to when the government may comment on a defendant’s silence. The First, Second, Sixth, and Seventh Circuits prohibit the use of even pre-arrest silence as substantive evidence of guilt. United States v. Okatan,
Although the Supreme Court once granted certiorari to resolve this question, the Court ultimately decided the case on other grounds, leaving the circuit split in place. Salinas v. Texas, — U.S.-,-133
Given our precedent on this issue, however, we cannot conclude that the district judge abused her discretion in declining to declare a mistrial on the basis of the challenged conduct. 'Whatever the state of the law in other circuits, in our circuit it was permissible for the government to comment on Beauplant’s silence.
In any event, any error caused by the government’s comment on Beauplant’s and Rolle’s pr e-Miranda silence that might have occurred would not warrant reversal. As to Beauplant, any such error would have been harmless in light of the ample evidence of his guilt that was presented at trial. See United States v. Davila,
Therefore, the district court did not abuse its discretion in declining to grant a mistrial as to Beauplant and Rolle.
D.
Beauplant argues that the government violated his due process rights both by destroying the boat without photographing the central console and by repatriating Henri, whose version of what happened could have aided his defense. Because Rolle testified that Beauplant and Henri had stowed away in the boat’s center console, Beauplant believes that an examination of the boat and ■ Henri’s' testimony would have supported Rolle’s testimony.
We will not pause to address the government’s assertion that Beauplant has waived this argument based on his failure to raise it before trial because we agree with the government on the merits. See United States v. Mathis,
To establish that the destruction of evidence constitutes a violation of due process, “[a] defendant must show that the evidence was likely to significantly contribute to his defense.” Id. (internal quotation marks omitted). This means that the “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence, by other reasonably available means.” Id. (internal
Beauplant cannot satisfy the bad faith requirement here. Nothing in the record suggests that the Coast Guard, in destroying the boat without photographing it or in repatriating Henri, acted in bad faith. In support of his claim regarding the boat’s destruction, Beauplant asserts nothing beyond the fact that the Coast Guard misallocated its resources in choosing to collect the drug bales rather than measuring and photographing the center console where Russell'testified that Beauplant hid. Such a typical and reasonable law enforcement decision about how to allocate limited resources and manpower does not permit an inference of bad faith. As for the decision to repatriate Henri, Beauplant has not made any showing that, in deciding to allow Henri to return to Haiti, the Coast Guard believed that he would provide exculpatory testimony. Speculation to that effect cannot support his claim that the Coast Guard acted in bad faith.
Accordingly, we conclude that the district court properly denied Beauplant’s motion to dismiss on this basis.
E.
Beauplant argues that the district court erred by permitting a DEA agent to testify that in 2010, the Bahamian authorities arrested. Beauplant because he was the captain of a Haitian freighter that had arrived in the Bahamas carrying 165 kilograms of cocaine and some marijuana. Beauplant asserts that, in violation of Federal Rule of Evidence 404(b), this evidence was used to establish propensity and bad character, rather than knowledge or motive.
We review for “clear abuse of discretion” a district court’s choice to admit evidence under Rule 404(b). United States v. Sterling,
Evidence of prior crimes is admissible under 404(b) as long as (1) it is “relevant to an issue other than defendant’s character,” (2) the government has introduced “sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question,” and (3) the probative value of the evidence is not “substantially outweighed by undue prejudice.” United States v. Edouard,
In concluding that the evidence satisfied these three requirements, the court did not clearly abuse its discretion. First, Beauplant’s defense, as presented in Rolle’s testimony, was that he was merely a stowaway and lacked the knowledge that there were drugs on the boat and thus the intent to smuggle them. The agent’s testimony was relevant as tending to prove Beauplant’s knowledge that drugs were present and that he intended to smuggle them. The fact that he was previously arrested for captaining a boat used to smuggle drugs makes his defense less plausible, because it makes it more likely that Beau-plant could recognize when a boat is-smuggling drugs. Second, the DEA agent’s testimony was sufficient to prove Beauplant’s prior involvement in smuggling by a pre
Accordingly, the defendants’ CONVICTIONS are AFFIRMED.
Concurrence Opinion
concurring, in which WALKER, Circuit Judge, joins:
As the court explains, United States v. Rivera,
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Just before midnight on May 3, 2014, about 25 nautical miles from Haiti, Coast Guard officers approached Nathaniel Rolle’s boat with their firearms drawn. The officers ordered the boat’s occupants, including Mario Wilehcombe and Alteme Beauplant, to get on their knees with their hands behind their heads (and later with their hands on the gunnel of the boat). The officers also told the men on the boat that they were not free to move around and made it clear to them that they “had no intent on having a conversation .at that point.” D.E. 175 at 333.
Several hours later, after the Coast Guard had received authorization to board, and after the boat was searched, the officers put the occupants in leg irons and transferred them to a Coast Guard vessel. The occupants' were- told to write down their names, dates of birth, and nationalities on cards and were then photographed holding those cards.' After about two to three days, the occupants, still shackled, were taken to a second Coast Guard vessel. They arrived in Miami after five days at sea.
The Coast Guard officers never told Mr. Wilehcombe and Mr. Beauplant that it was permissible for them to speak, and did not give them Miranda warnings. Mr. Wil-ehcombe and Mr. Beauplant were not questioned by the officers, and aside from asking if they could have food and water, they did not speak (or ask to -speak) to the Coast Guard officers while at sea. While on the second Coast Guard vessel, Mr. Beau-plant told a Creole interpreter that he was from Haiti,- that he had been stranded on one of the islands, and that the Bahamians on the boat had offered him a ride home.
Mr. Wilehcombe and Mr.'-Beauplant did not testify at trial. The government, in its case-in-chief and over defense objection, elicited from several of the Coast Guard officers that 'Mr. Wilehcombe and Mr. Beauplant did not say anything to them while in custody aboard the Coast Guard vessels and that they did not ask to speak to any of the officers in private. The district court denied defense motions for mistrial based on the testimony pertaining to their post-arrest/pre-Mmmcto silence.
In its initial closing argument, the government argued to the jury that, had the
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About 50 years ago, the Supreme Court held that comments by the prosecution and instructions by the trial court on inferences which can be drawn from a defendant’s failure to testify at trial violate the Fifth Amendment, even if the jury is also instructed that a defendant has a constitutional right to not take .the stand in his own defense:
It is in substance a rule of evidence that allows the State a privilege of tendering to the jury for its consideration the fail- . ure of the accused to testify. No formal offer of proof is made as in other situations; but the prosecutor’s comment and the court’s acquiescence are the equivalent of an offer of evidence and its ac- . ceptance.
Griffin v. California,
A decade later, the Supreme Court explained that “Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant’s silence as substantive evidence of guilt.” Baxter v. Palmigiano,
As I see it, the government here did what the Fifth Amendment, as interpreted in Griffin, forbids. It elicited testimony about the post-arrest silence of Mr. Wil-chcombe and Mr. Beauplant in its case-in-chief, and then suggested to the jury in closing argument that their silence should be considered as substantive evidence of guilt.
Rivera, citing only to Fletcher v. Weir,
First, Fletcher was decided under the “fundamental fairness” standard of the
Second, Fletcher addressed the use of silence to impeach a defendant during cross-examination, and not the use of silence in the government’s case-in-chief. It held that the due process clause—as interpreted in Doyle v. Ohio,
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Although the Supreme Court has held that a voluntary custodial statement taken in violation of Miranda may be used on cross-examination to impeach a testifying defendant, the rationale for this rule is that a defendant who testifies at trial, and who places his credibility on the line, cannot use the Fifth Amendment as “a shield against contradictions of his untruths.” Harris v. New York,
I agree with what Judge Sentelle wrote for the D.C. Circuit in holding that the Fifth Amendment prohibits the government from using post-arrest/pre-Miranda silence as substantive evidence of guilt in its case-in-chief:
[N]either Miranda nor any other ease suggests that a defendant’s protected right to remain silent attaches only upon the commencement of questioning as opposed to custody. While a defendant who chooses to volunteer an unsolicited ad*1196 mission or statement to the police before questioning may be held to have waived the protection of that right, the defendant who stands silent must be treated as having asserted it.
United States v. Moore,
If there is going to be a trigger for the constitutional protection of silence, that trigger should be custody and not the recitation of Miranda warnings. The right to remain silent comes from the Fifth Amendment, not Miranda, and exists independently of Miranda warnings. See United States v. Patane,
But if we Want to talk about Miranda, that decision contains broad language which supports the view that it is custody that matters when the issue is the use of a defendant’s silence as substantive evidence: “[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at .trial the fact that he stood mute or claimed his privilege in the face of an accusation.” Miranda,
' The'Court-in Miranda also made clear that the warning was just that: a warning that informs the suspect of the privilege against self-incrimination that he already possesses while in police custody and of the consequences of forgoing it. See id. at 469,
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In this case the Coast Guard officers chose not to give Miranda warnings to Mr. Wilehcombe and Mr. Beauplant while they were kept in shackles for five days at sea, and after they were told that the officers were not interested in having a conversation. In, my view, the Fifth Amendment’s privilege against self-incrimination did not permit the government to use the post-arrest silence of Mr. Wil-ehcombe and Mr. Beauplant—neither of whom testified at trial—as substantive evidence of their guilt in its case-in-chief. Cf. United States v. Hale,
I join Judge Walker’s opinion for the court with the hope that, one day, we will revisit Rivera.
Notes
. Miranda v. Arizona,
. I recognize that Griffin has its critics. See, e.g., Mitchell v. United States,
. Given the other evidence presented against Mr. Wilchcombe and Mr. Beauplant, I do not think this case is a good vehicle for en banc reconsideration of Rivera.