The circuit split identified in the blog is 5 to 2, with 5 appellate courts saying the pre-arrest silence is subject to 5th Amendment protection and 2 holding that it is not. These are fact based case resolutions, so it is hard to know exactly where the line might be drawn in the cases criminal and civil tax practitioners usually face.
Usually, tax practitioners deal with a situation where the IRS agents -- civil or criminal -- made some type of accusation that, in the normal course of human events, innocent persons might -- might -- deny. If the agent were a criminal agent, he or she would likely have first read the witness the modified Miranda warnings, but as some of the cases note, giving even the Miranda warnings does not permit the prosecutors to rely upon silence. (How could it be otherwise for often the defendant in the dock does not speak and the prosecutors cannot rely on that silence?) In a criminal tax trial, the issue would be whether the defendant's silence to accusations or evidence that indicates a tax crime can be used as evidence of guilt of the crime.
By way of context, see United States v. Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. Cal. 2001) (en banc), here, the most recent appellate case cited in the Circuit Splits blog. The key facts are:
At approximately 10:00 p.m., Customs Agents Salazar and Wilmarth escorted Velarde to an interview room, where Agent Salazar informed Velarde that Customs had found the marijuana. Velarde did not speak or physically respond. At some later time (the district court used a time of four and one-half hours, but expressed no view on the accuracy of this fact), Agent Salazar read Velarde his Miranda rights. Velarde then waived those rights and subjected himself to questioning.Then, after being given Miranda warnings, the defendant started answering questions and responding. The issue then came up in the prosecutors' jury argument as follows:
* * * *
At trial, Agent Salazar testified as to Velarde's non-responsiveness during the interrogation. The prosecution elicited testimony from Agent Salazar about Velarde's interview following the agent's discovery of marijuana in Velarde's car. The transcript makes clear that the interview took place before Velarde was read his Miranda rights and his subsequent waiver of his right to remain silent. Over defense objection, Agent Salazar's direct examination proceeded:
Q: Now, when you first started asking the defendant questions, did you tell him what had been found in the vehicle?
A: Yes, I did.
Q: And what did you tell him?
A: I told him that 63 pounds of marijuana had been found in the gas tank of the vehicle he was driving.
Q: And what was his response?
[Defense]: Objection, your honor, based upon the previous thing we talked about.
The Court: Overruled.
A: I told him that. Before we give the Miranda rights, we always mention why they're there.
Q: Okay. And what was his response when you told him there was marijuana found in the vehicle?
A: There was no response. He didn't look surprised or upset or whatever.
Q: So he just sat there?
Q: Did he say anything?
Q: Did he deny knowledge?
Q: Now, after you told — after you told him about the marijuana in the car, what happened next?
A: I read him his rights, and he decided to talk to us when we continued or started the interview.
Noting that there was no direct evidence of Velarde's knowledge or intent, the prosecutor began her closing argument by comparing drug organizations to "any other business," which would want "the best person for the job." The prosecutor then compared the characteristics that border agents use to identify a drug courier, i.e., nervous or fidgety, with the type of person a drug organization would select to deceive the agents, i.e., calm and relaxed:
So now you have a defendant who you've learned was totally relaxed. When he was interviewed by the case agents, he was relaxed when he was told that there was marijuana in the car. He showed no emotion. This defendant was perfect for the job. He's the kind of guy a drug organization would want to hire because he was able to sit there and show nothing.
Now, if someone is told that they have no idea that there's marijuana in their car, if someone is told we've pulled you over, checked out your car, and we found 63 pounds of marijuana in your car, was he shocked? Was he surprised? Was he enraged? No. He showed no emotion at all. He was able to control any feelings he might have had. He was the perfect guy. He was the perfect guy to bring drugs across the border. He's the kind of guy a drug organization looks for and hires.The Ninth Circuit held that the reference to the defendant's silence as evidence of guilt violated the Fifth Amendment right to remain silent.
Of course, I practice in the Fifth Circuit, one of the 2 minority circuits, so I have to be concerned about this issue. However, it would appear that critical mass among the circuits might be in favor of granting Fifth Amendment protection to such silence. (Note, 3 of the 5 majority split cases were decided after the latest minority case.)
For the contrary Fifth Amendment view, the latest minority case, United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996), here, reasons cryptically:
Assuming without deciding that Zanabria's pre-arrest silence falls within the reach of "testimonial communications" protected by the fifth amendment, the record makes manifest that the silence at issue was neither induced by nor a response to any action by a government agent. The fifth amendment protects against compelled self-incrimination but does not, as Zanabria suggests, preclude the proper evidentiary use and prosecutorial comment about every communication or lack thereof by the defendant which may give rise to an incriminating inference. We find no error in the use of this evidence or in the prosecutor's comments thereon.In Hall v. Bell, 2012 U.S. Dist. LEXIS 108919 ( E.D. Mich. Aug. 3, 2012), the case giving rise to the Circuit Split Blog, the district court found that he was not entitled to habeas relief from a state conviction because the law was not settled. The Hall court reasoned:
"The general rule of law is that once a defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which defendant exercised." Combs v. Coyle, 205 F.3d 269, 281 (6th Cir. 2000) (quoting Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir. 1989)). That is, "a defendant's decision to remain silent cannot be used as substantive evidence of guilt." Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009) (citing Griffin, 380 U.S. at 615).
The scope of this general rule, however, is not clearly established. "This rule clearly applies to a defendant's silence after the defendant actually invokes the right to remain silent [post-Miranda warning]," the Sixth Circuit observes, but cautions: "The constitutionality of using a defendant's pre-Miranda silence as substantive evidence of guilt has not been addressed by the Supreme Court." Hall, 563 F.3d at 232 (brackets and quotation marks omitted) (quoting Jones v. Trombley, 307 F. App'x 931, 933 (6th Cir. 2009)). More precisely, the issue has never been decided by the Supreme Court.
In Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980), the Court declined to decide the issue, observing: "Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment." Id. at 236 n.2; see Combs, 205 F.3d at 281 (noting that the issue has been left open by the Supreme Court).
Moreover, the federal courts of appeals have split over the issue — several hold that using pre-arrest silence as substantive evidence of guilt violates the privilege against self-incrimination; several others hold that it does not. Compare Combs, 205 F.3d at 282-83 (holding that using pre-arrest silence as substantive evidence of guilt violates the privilege against self-incrimination); United States v. Burson, 952 F.2d 1196, 1201 (10th Cir. 1991) (same); Coppola, 878 F.2d at 1568 (same); United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987) (same); with United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir.1998) (holding that using pre-arrest silence as substantive evidence of guilt does not violate the privilege against self-incrimination); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) (same); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) (same); see generally Andrew J. M. Bentz, Note, The Original Public Meaning of the Fifth Amendment and Pre-Miranda Silence, 98 Va. L. Rev. 897, 898, 908-21 (2012) (observing that the issue divides both federal courts of appeals and state courts, providing originalist analysis supporting author's assertion that the evidence should not be admissible); Michael J. Hunter, The Man on the Stairs Who Wasn't There: What Does a Defendant's Pre-Arrest Silence Have to Do with Miranda, the Fifth Amendment, or Due Process?, 28 Hamline L. Rev. 277, 280, 291-307, 309 (2005) (providing review of circuit split and asserting that the evidence should be admissible).
AEDPA, as noted, narrowly circumscribes this Court's review to the "clearly established" holdings of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The writ may issue only if the state court's application of clearly established federal law is "objectively unreasonable." Id. at 410. Moreover, the Supreme Court instructs, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U.S. 111, 121, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009) (quotation marks omitted) (quoting Wright v. Van Patten, 552 U.S. 120, 123, 128 S. Ct. 743, 169 L. Ed. 2d 583 (2008)). Rather, the Court explains, habeas relief is only appropriate "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 131 S. Ct. 770, 786, 178 L. Ed. 2d 624 (2011).
In sum, the Supreme Court has not clearly established that the prosecution's use of pre-arrest silence as substantive evidence of guilt violates the privilege against self-incrimination. Fairminded jurists of the federal courts of appeals have disagreed on the issue. Required to apply only the clearly established holdings of the United States Supreme Court, this Court must deny the relief sought in the petition for a writ of habeas corpus.