United States v. Ramon Velarde-Gomez

Ramon Velarde-Gomez (“Velarde”) appeals his conviction under 21 U.S.C. §§ 952 and 960 for importation of marijuana, and under 21 U.S.C. § 841 (a)(1) for possession of marijuana with intent to distribute. The government elicited testimony about Velarde’s post-arrest, pre-Mi- randa non-responses to questions during an interview by border agents, characterizing Velarde’s non-reaction as “demeanor” evidence. The district court allowed this *1026 testimony over Velarde’s objection, agreeing in large measure with the government’s characterization and also finding a subsequent waiver of Miranda rights to encompass the silence preceding the Miranda warnings. Because we discern no meaningful distinction between the “demeanor” evidence at issue here and the “silence” we held inadmissible in United States v. Whitehead, 200 F.3d 634 (9th Cir.), cert. denied, 531 U.S. 885 , 121 S.Ct. 202 , 148 L.Ed.2d 141 (2000), and because the admission of that evidence was not harmless, we reverse and remand to the district court for a new trial. We further hold that the district court did not violate the Vienna Convention when it denied Velarde’s motion to suppress.

I. Factual and Procedural History

On…

with whom FERNANDEZ and SILVERMAN, Circuit Judges, join, Concurring in part and Dissenting in part:

I concur in part in the majority opinion’s analysis concerning error in comment on post-arrest, pre-Miranda, silence. In my view, this analysis is correct as applied to the questions whether the accused said anything (Q: “Did he say anything?” A: “No”) or denied anything (Q: “Did he deny knowledge?” A: “No”). I agree that these questions and their answers offered into evidence violated the Fifth Amendment rights of the accused. I also fully agree that there was no waiver arising from the subsequent waiver of Miranda rights.

Nonetheless, I respectfully dissent from the opinion’s application of the Fifth Amendment prohibition against comment on silence to what I consider the demeanor evidence (Q: ‘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?” A: “Yes.”). And I respectfully dissent as well from the majority opinion’s harmless error analysis. I would affirm the judgment of the district court, thinking the error committed was smaller in scope than…

269 F.3d 1023 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. RAMON VELARDE-GOMEZ, DEFENDANT-APPELLANT. No. 99-50602 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Rehearing En Banc Granted May 8, 2001 Argued and Submitted En Banc June 20, 2001 Filed October 23, 2001 [Copyrighted Material Omitted] Joseph J. Burghardt, Esq., Federal Public Defenders of San Diego, San Diego, California, for the defendant-appellant. Terri L. Goodman, Esq., Federal Public Defenders of San Diego, San Diego, California, for the defendant-appellant. Shereen J. Charlick, Esq., Federal Public Defenders of San Diego, San Diego, California, for the defendant-appellant. Patrick K. O'Toole, Esq., Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. Maura Quinn, Esq., Assistant United States Attorney, San Diego, California, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; John S. Rhoades, District Judge, Presiding. D.C. No. CR-99-00729-JSR Before: Schroeder, Chief Judge, Hug, Pregerson, Kozinski, Fernandez, Kleinfeld, Silverman, Wardlaw, W. Fletcher, Gould, and Paez, Circuit Judges. Wardlaw,…