Torres

MEMORANDUM **

Charles Wesley Helem appeals his conviction for assaulting a fellow inmate with *729 a dangerous weapon in violation of 18 U.S.C. § 113 (a)(3).

We have jurisdiction pursuant to 28 U.S.C. § 1291 . The facts are known to the parties and will not be repeated here.

The district court did not erroneously determine that Helem waived his right to be present for the third day of his trial. See Taylor v. United States, 414 U.S. 17, 20 , 94 S.Ct. 194 , 38 L.Ed.2d 174 (1973).

The district court did not violate Helem’s Fifth Amendment rights by permitting the prosecution to comment on his failure to tell prison officials that the victim had started the fight. A prosecutor may use a defendant’s pre-arrest pre-Miranda silence as evidence of substantive guilt. See Brecht v. Abrahamson, 507 U.S. 619, 628 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993). The fact that Helem was incarcerated for an unrelated offense when he committed the instant offense did not render him “in custody” for purposes of whether his silence may be admissible against him. Cf. United States v. Muniz, 684 F.2d 634, 638-39 (9th Cir.1982).

The government conceded at oral argument that the district court’s…