Appeal from the United States District Court for the District of Arizona. D.C. No. CR-89-316-TUC-RMB. Richard M. Bilby, Chief Judge, Presiding.
Herbert Y. C. Choy and Joseph T. Sneed, Circuit Judges, and Robert J. Kelleher,*fn* District Judge. Opinion by Judge Sneed.
Appellant, Gary A. Newman, appeals from his criminal conviction for setting fire to lands within the Coronado National Forest in southern Arizona. He argues that he was prejudiced by testimony regarding his post-arrest silence. We agree and reverse Newman's conviction.
FACTS AND PROCEEDINGS BELOW
On May 29, 1989, two Forest Service special agents (Boerman and McCormick) began surveillance of fellow employee Gary Newman. They had previously installed an electronic tracking device on defendant's Forest Service pickup truck. At approximately 9:40 a.m., the agents spotted defendant's truck travelling north on Highway 83. They followed defendant's vehicle for approximately two miles on the highway. Agent Boerman then continued the surveillance on foot after the defendant turned off the highway and parked his truck on a "two-track" road. Except for a ten-minute interval during which Boerman returned to his vehicle for radio batteries, the defendant's truck was continuously in Boerman's sight for an hour. During this time, Boerman testified that the truck remained empty.
At approximately 10:50 a.m., Boerman saw the defendant return to the truck from the north and drive off. Four minutes later, smoke was spotted. Boerman then proceeded to the site of the fire which was located seventy-five yards from the north fence of Black Oak Cemetery, approximately eight minutes by foot from where the defendant's truck had been parked. Agent McCormick also proceeded to the site of the fire. His testimony was that he heard defendant report the fire over the radio at approximately 11:00 a.m. Other witnesses at the trial appearing on behalf of the defense contradicted McCormick's testimony.
Upon arriving at the cemetery, Agent McCormick stopped to question Mrs. May Gates who had arrived at the cemetery at approximately 9:45 a.m. that morning to visit her husband's grave. During the relevant time period she had a clear view of the pasture where the fire started. She heard a man's voice utter two or three sentences, listened for a reply, but she heard nothing more. During this time, however, Mrs. Gates saw no one at either the cemetery or at or near the fire before McCormick's arrival.
Defendant arrived at the scene of the fire at approximately 11:10 a.m. When asked by agent McCormick why he had started the fire, defendant denied his involvement. Defendant also declined to give any further statement to the agents; nor did he give a statement to his supervisor. The following day, however, defendant gave a detailed explanation of his movements of the previous morning. In numerous ways, this explanation was inconsistent with the agents' observations of his movements.
Agent Douglas of the Forest Service investigated the area and determined that the cause of the fire was incendiary in nature. On the day of the fire, defendant had two match books with him in his truck from which some matches were missing. The agents also located a portable radio in defendant's truck.
On October 18, 1989, a grand jury indicted Newman under 18 U.S.C. § 1855. After a five day trial, a jury found Newman guilty on March 26, 1990. He was given an eight month sentence, four months of which were to be served in jail and the remaining four months under "house arrest." He was also placed on supervised release for three years and ordered to pay restitution of $55,173.