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Name: U.S. v. Velarde-Gomez
Case #: 99-50602
Court: US Court of Appeals
District 9 Cir
Opinion Date: 10/23/2001
Subsequent History: None

During Velarde’s trial for importation of marijuana, the government elicited testimony concerning about Velarde’s post-arrest, pre-Miranda non-responses to questions during an interview with border patrol agents. The district court found the evidence admissable as “demeanor” evidence, and also because a subsequent waiver of Miranda rights encompassed the silence preceding the Miranda warnings. Here, the appellate court reversed. There was no meaningful distinction between the “demeanor evidence” and silence, which has been held to be inadmissable. Velarde did not react at all when confronted with the information concerning the marijuana found in his vehicle; according to officers, he “just sat there.” There was no “demeanor” to comment on; merely a state of silence. Further, Velarde’s subsequent waiver of his Miranda rights only rendered his subsequent statements admissible. The waiver did not render admissible comment on Velarde’s prewaiver silence. The error was not harmless under the circumstances, and reversal was required.