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MICHAEL BAILEY 

United States Attorney 

ANNA WRIGHT

Assistant U.S. Attorney 

NATHANIEL J. WALTERS 

Assistant U.S. Attorney 

State Bar No.: 029708 

405 West Congress, Suite 4800 

Tucson, Arizona 85701-5040 

Telephone: (520) 620-7300 

E-mail: anna.wright@usdoj.gov 

 nathaniel.walters@usdoj.gov 

Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

 vs. 

Scott Daniel Warren, 

 Defendant.

18-CR-223-TUC-RCC (DTF) 

GOVERNMENT’S RESPONSE TO 

DEFENDANT’S MOTION IN LIMINE TO 

PRECLUDE EVIDENCE OR ARGUMENT 

ABOUT THINGS HE DID NOT SAY 

The United States of America, by and through its undersigned attorneys, hereby 

responds to the defendant’s Motion in Limine to Preclude Evidence or Argument About 

Things He Did Not Say. Doc. 324. The government respectfully requests that the Court 

deny the motion in its entirety because it has no basis in law or fact. The government’s 

introduction of evidence regarding the defendant’s pre-arrest, non-custodial silence has no 

constitutional implications, and may be used as substantive evidence of guilt and as 

impeachment. See United States v. Oplinger, 150 F.3d 1061, 1065-67 (9th Cir. 1998); 

United States v. Beckman, 298 F.3d 788, 795-96 (9th Cir. 2002). 

I. Background 

At trial, Border Patrol Agent Brendan Burns testified that, on January 17, 2018, he 

and Border Patrol Agent John Marquez established surveillance on the Barn and 

approached the Barn after seeing the defendant give northbound directions to two 

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suspected illegal aliens. TR 5/30/19 at 48:11-17, 51:5-14, 57:21-67:7. Agent Burns spoke 

with the defendant in the driveway of the property, where he informed the defendant that 

he was there to investigate illegal alien activity on the property. Id. at 70:11-23, 72:3-8. 

Agent Burns further testified that he told the defendant he was going to go knock on the 

Barn’s door and that the defendant responded by saying he would follow Agent Burns to 

the Barn. Id. at 66:1-3, 73:21-74:2. Agent Burns further testified that, at that point, he and 

the defendant walked around the Barn to the main entrance, where they saw Agent Marquez 

there, and one of the illegal aliens sitting in an open doorway. Id. at 74:14-23. Finally, 

Agent Burns testified that at no point during these events did the defendant ever say that 

there was anyone in the Barn, let alone two illegal aliens allegedly receiving medical care. 

Id. at 73:9-21, 74:3-13. The defendant did not object to this testimony. 

The government also cross-examined the defendant regarding his failure to tell 

Agent Burns that there was anyone in the Barn, let alone two illegal aliens allegedly 

receiving medical care. TR 6/6/19 at 130:10-131-13. The defendant objected to this line of 

questioning at side-bar. Id. at 128:8-130:7. The Court overruled the objection. Id.

II. Argument 

a. The government may introduce the defendant’s pre-arrest, pre-Miranda

silence as both evidence of guilt and impeachment. 

It is well-settled that a defendant may be impeached with his pre-arrest, noncustodial silence if he chooses to testify at trial. Jenkins v. Anderson, 447 U.S. 231, 239 

(1980). It is also well-settled that the government may introduce evidence of a defendant’s 

pre-arrest, non-custodial silence as substantive evidence of guilt at trial. See Oplinger, 150 

F.3d at 1065-67; Beckman, 298 F.3d at 795-96. This is because “[n]either due process, 

fundamental fairness, nor any more explicit right contained in the Constitution is violated 

by the admission of the silence of a person, not in custody or under indictment, in the face 

of accusations of criminal behavior.” Oplinger, 150 F.3d at 1067, quoting United States v. 

Giese, 597 F.2d 1170, 1197 (9th Cir. 1979). 

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In Oplinger, the government introduced as substantive evidence the defendant’s 

silence when accused by his supervisor of defrauding his employer. 150 F.3d at 1065-66. 

The defendant claimed on appeal that he remained silent, in part, because he knew “that 

his answers would be reported to the FBI, and argued that “’non-custodial, pre-arrest, and 

investigatory assertions’ of the right to remain silent are protected by the Fifth Amendment 

privilege against self-incrimination and the right to due process.” Id. at 1066. The Ninth 

Circuit roundly rejected this argument, reasoning that since “the government made no 

effort to compel [the defendant] to speak, he was free to act as he pleased.” Id. at 1067. 

“Consequently, the constitutional privilege against compelled self-incrimination simply 

did not come into play.” Id. 

While the defendant in Oplinger remained silent in the face of questions by his 

supervisor, the defendant in Beckman remained silent as to certain information when 

questioned by law enforcement at a port of entry. Beckman, 298 F.3d 788, 795. In that case, 

the defendant testified at trial that he had been tricked into importing marijuana. Id. In 

closing argument, the government suggested that if the defendant had been tricked, then he 

would have said something to law enforcement at the port of entry. Id. Despite the 

introduction of questioning by law enforcement rather than a civilian, the Ninth Circuit 

found no difficulty in applying Oplinger to these facts and holding that “[n]o error resulted 

from the government’s summation commentary on [the defendant’s] silence.” Id.

Like the defendant in Beckman, the defendant in this case remained silent during a

non-custodial encounter with law enforcement regarding certain material facts. Like the 

defendant in Beckman, if the defendant were telling the truth regarding his defense at trial, 

then he would have said something about these material facts at the time of his consensual, 

non-custodial encounter with law enforcement. Specifically, if the defendant had no intent 

to help the illegal aliens avoid detection by Border Patrol, then he would have told Agent 

Burns they were in the Barn, especially since Agent Burns was on his way to knock on the 

door to the Barn. 

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The defendant argues that Beckman can be distinguished from this case, because 

the defendant in Beckman remained silent at a port of entry “where the strictures of the 

Fourth Amendment have limited application.” Doc. 324 at 8. However, the location of the 

non-custodial encounter and the identity of the questioners played no role in the Ninth 

Circuit’s analysis in Beckman or Oplinger. 

The Ninth Circuit’s holdings in Oplinger and Beckman clearly apply in this case 

such that the government may introduce evidence regarding the defendant’s pre-arrest, 

non-custodial silence without implicating any constitutional protections. 

b. The Fourth Amendment does not apply to pre-arrest, non-custodial 

silence. 

Oplinger and Beckman make clear that the Fifth Amendment is not implicated by 

use at trial of a defendant’s pre-arrest, non-custodial silence. The Fourth Amendment 

simply does not apply to this situation, because, by its terms, the Fourth Amendment 

protects “against unreasonable searches and seizures[.]” U.S. Const. amend. IV. The Fourth 

Amendment does not create a right to remain silent independent of the Fifth Amendment. 

When an individual is seized within the meaning of the Fourth Amendment, certain 

constitutional protections apply. See Florida v. Royer, 460 U.S. 491, 497-499 (1983) 

(discussing consensual encounters, custodial arrest and investigative detention). However, 

“[i]f there is no detention – no seizure within the meaning of the Fourth Amendment – then 

no constitutional rights have been infringed.” Royer, 460 U.S. at 498. Consistent with this 

principle, a law enforcement officer may approach an individual in a public place and ask 

him questions, and the individual may walk away and refuse to answer those questions. Id.

The Fourth Amendment is not implicated in this situation unless the individual is detained 

without “reasonable, objective grounds” consisting of something more than the refusal to 

answer questions. Id. Nothing in these cases limits the government’s ability to later use the 

defendant’s silence as substantive evidence of guilt or impeachment. 

In this case, the defendant’s encounter with Agent Burns was consensual. The 

defendant even volunteered to accompany Agent Burns to the Barn. Agent Burns did not 

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arrest or further detain the defendant until after the agents determined that the suspected 

illegal aliens did not have documentation to be in the United States legally, and the 

defendant’s silence played no role in establishing probable cause for his arrest. 

Accordingly, no Fourth Amendment violation occurred. 

III. Conclusion 

As discussed above, under clear Ninth Circuit and Supreme Court precedent, the 

government’s introduction of evidence regarding the defendant’s pre-arrest, non-custodial 

silence has no constitutional implications, and may be used as substantive evidence of guilt 

and as impeachment. Accordingly, the defendant’s motion should be denied in its entirety.

Respectfully submitted this 4th day of October, 2019. 

 MICHAEL BAILEY 

United States Attorney 

District of Arizona 

 /s/ Anna R. Wright & Nathaniel J. Walters

 ANNA WRIGHT &

 NATHANIEL J. WALTERS 

 Assistant U.S. Attorneys 

Copy of the foregoing served electronically or by 

other means this 4th day of October, 2019, to: 

All ECF participants 

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