Norris

MEMORANDUM *

Theodore Norris appeals from a jury conviction for possession with intent to distribute 161 kilograms of marijuana in violation of 21 U.S.C. § 841 (a)(1), (b)(l)(B)(vii). Norris argues that the government’s inquiry, upon cross-examination, into his pre-Miranda silence violated his Fifth Amendment right to silence. He also contends the district court’s denial of his request for a “mere presence” jury instruction constitutes reversible error. Finally, he claims cumulative error deprived him of his constitutional right to a fair trial.

The parties focus on whether Norris’s silence was pre-arrest or post-arrest, but even assuming the silence was post-arrest, this circuit allows prosecutors to use a defendant’s post-arrest, pre-Miranda silence for impeachment. United States v. Hernandez, 476 F.3d 791, 796 (9th Cir.2007); United States v. Velarde-Gomez, 269 F.3d 1023 , 1029 n. 1 (9th Cir.2001) (en banc). The prosecution used Norris’s silence in this case only for impeachment. The prosecutor did not ask the officers about Norris’s silence during the prosecution’s case-in-chief. Only after Norris took the stand to testify in his own defense that he had been duped into…