United States v. Williams

MEMORANDUM **

Charles Williams appeals his convictions for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960 and possession of marijuana with the intent to distribute in violation of 21 U.S.C. § 841 (a)(1). He alleges that the district court violated his Fifth Amendment privilege against self-incrimination when it admitted evidence about his post-arrest, pr e-Miranda silence. Because we agree that the district court committed prejudicial error, we reverse his conviction.

Special Agent Brown’s testimony that Williams was relaxed, that he did not appear upset or surprised, that he did not raise his eyebrows, and that his face did not turn red when he was informed that an illegal substance was found in his vehicle constituted comments on his silence in violation of his Fifth Amendment right. There is no principled way to distinguish this case from United States v. Velarde-Gomez, 269 F.3d 1023 (9th Cir.2001) (en banc), in which we held that testimony about a defendant’s failure to appear surprised or upset in the face of police confrontation constituted unconstitutional comments on the defendant’s silence.

The government contends that, even if the district court…