United States v. Karla Foster

In its petition for rehearing, the government contends for the first time in this appeal that Miranda warnings were not given, and that hence, pursuant to Fletcher v. Weir, 455 U.S. 603 , 102 S.Ct. 1309 , 71 L.Ed.2d 490 (1982), the evidence regarding post-arrest silence was properly admitted and did not constitute error under Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976). The government asks, therefore, that we affirm the conviction. We called for a response because the government’s motion raised matters that had not been briefed in the appeal or argued below. In her response, the defendant contends that Miranda warnings were given, or, in the alternative, the government had not met its burden to demonstrate that Miranda warnings were not given and that our reversal of the conviction was correct.

Upon our review of the record, we conclude that neither party is wholly accurate. The record is silent as to whether or not Miranda warnings were given. The only case to our knowledge which has dealt with a similar record is the Third Circuit’s decision in United States v. Cummiskey, 728 F.2d 200 (3d Cir.1984) (“Cummiskey I”). There the Third Circuit held that…