a defendant's post-arrest, pre-Miranda silence violates a defendant’s Fifth Amendment rights. United States v. Velarde-Gomez, 269 F.3d 1023, 1029 (9th Cir.2001) (en banc) ("post-arrest, pre-Miranda silence cannot be admitted into evidence in the government’s case in chief’’); United States v. Moore, 104 F.3d 377, 386 (D.C.Cir.1997) ("It simply cannot be the case that a citizen’s protection against self-incrimination only attaches when officers recite a certain litany of his rights.’’); United States v. Hernandez, 948 F.2d 316, 322-23 (7th Cir.1991) (silence pre-Miranda cannot be used in the government’s case in chief). The Second Circuit has assumed, without expressly deciding, that the use of pre-Miranda silence is impermissible. United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981) (<HOLDING>). The First and Sixth Circuits have gone even
holding that an instructional error is harmless if no rational jury could have made its findings without also finding the omitted  fact to be true holding that any error was harmless and thus not plain error holding exclusion was harmless error holding without discussion that premiranda silence could not be used in the states caseinchief but finding the error harmless recognizing that where the error involved defies analysis by harmless error standards or the data is insufficient to conduct a meaningful harmless error analysis then the error will not be proven harmless beyond a reasonable doubt