Didn’t say when or where really, but he made a claim. The defendant was right there. He said nothing.” And the government repeated the error in rebuttal argument: “They put him in the back of their vehicle, and he never once said anything to them about being forced.” In this summation argument, the government “directly link[ed] the implausibility of the defendant’s exculpatory story to his ostensibly inconsistent post-arrest silence.” Price v. King, 714 F.2d 585, 588 (5th Cir.1983). Determinatively, again, the government did so after Andaverde-Tiñoco had testified that, unlike his companions, he had not cooperated post arrest by telling his exculpatory story on the way to the station but only later after his second Miranda warning, thus obviating the need 895-96 (5th Cir.1978) (<HOLDING>). Even though Andaverde-Tiñoco did open the
holding that the government may comment on a defendants prearrest premiranda silence as well as his postarrest pr emiranda silence holding that an infringement on the defendants fundamental due process right in the form of a comment on the defendants silence by the prosecution did not rise to level of plain error holding under plain error review that prosecutions repeated references to defendants silence in a one day trial were not harmless despite defendants responsive comments on silence holding that the government cannot use postarrest silence against a defendant because miranda warnings give implicit assurances that silence will not be used against a person and accordingly it would be fundamentally unfair and a violation of due process to allow a defendants silence to be used to impeach him at trial holding a prosecutor may not comment on a defendants silence