United States v. Velarde-Gomez

United States Court of Appeals for the Ninth Circuit · 2001 · Evidence

269 F.3d 1023 (9th Cir. 2001)

Updated August 22, 2026

EvidenceFifth AmendmentPost-arrest silenceMirandaHarmless errorVienna Conventionpost-arrest pre-Miranda silencedemeanor evidence

Facts

After border agents discovered sixty-three pounds of marijuana in the gas tank of the car Velarde was driving, Agent Salazar took Velarde to an interview room and told him the marijuana had been found before giving Miranda warnings. According to Salazar, Velarde gave no response, did not look surprised or upset, said nothing, and did not deny knowledge. After later receiving Miranda warnings, Velarde waived his rights and answered questions, making statements the government also used at trial. In closing, the prosecutor argued that Velarde's lack of reaction showed he was "the perfect guy" for a drug organization and used that non-reaction to infer knowledge.

Issue

Whether the government may introduce, in its case-in-chief, testimony and argument about a defendant's post-arrest, pre-Miranda non-response to accusatory questioning by characterizing it as demeanor evidence rather than silence. Also, whether a later waiver of Miranda rights makes the defendant's earlier post-arrest, pre-Miranda silence admissible, and whether any error was harmless.

Rule

Once a person is in custody, he has a constitutional right to remain silent in the face of government questioning whether or not Miranda warnings have yet been given. Absent waiver, the government may not comment in its case-in-chief on post-arrest, pre-Miranda silence, and it may not evade that rule by describing the defendant's non-response as demeanor when the evidence is essentially silence. A subsequent Miranda waiver makes only later statements admissible and does not waive or authorize use of earlier post-arrest, pre-Miranda silence. Preserved constitutional error of this type is harmless only if the government shows beyond a reasonable doubt that the verdict would have been the same, considering the extent of the comments, whether guilt from silence was stressed, and the strength of the remaining evidence.

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Nogales, Arizona, border officers arrested Luis Navarro after discovering methamphetamine hidden in a truck he was driving. Before giving Miranda warnings, an officer told Luis, "We found drugs in your truck," and at trial the prosecutor asked, "How did he react?" The officer answered, "He just sat there, said nothing, and did not look surprised."

In the government's case-in-chief, is that testimony admissible as demeanor evidence of knowledge?

Explanation. Once a person is in custody, the Fifth Amendment right to remain silent exists whether or not Miranda warnings have yet been given. The government may not comment in its case-in-chief on post-arrest, pre-Miranda silence, and it may not evade that rule by recasting the silence as "demeanor" when the evidence is really that the defendant "just sat there," said nothing, and showed no reaction. That is functionally silence, not admissible physical evidence.