United States v. Gary A. Newman

Appellant, Gary A. Newman, appeals from his criminal conviction for setting fire to lands within the Coronado National Forest in southern Arizona. He argues that he was prejudiced by testimony regarding his post-arrest silence. We agree and reverse Newman’s conviction.

I.

FACTS AND PROCEEDINGS BELOW

On May 29, 1989, two Forest Service special agents (Boerman and McCormick) began surveillance of fellow employee Gary Newman. They had previously installed an electronic tracking device on defendant’s Forest Service pickup truck. At approximately 9:40 a.m., the agents spotted defendant’s truck travelling north on Highway 83. They followed defendant’s vehicle for approximately two miles on the highway. Agent Boerman then continued the surveillance on foot after the defendant turned off the highway and parked his truck on a “two-track” road. Except for a ten-minute interval during which Boerman returned to his vehicle for radio batteries, the defendant’s truck was continuously in Boerman’s sight for an hour. During this time, Boerman testified that the truck remained empty.

At approximately 10:50 a.m., Boerman saw the defendant return to the truck from the north and drive off. Four…