## Facts

- Customs agents surveilled the *Francisco Miguel*, a Colombian freighter docked in Brooklyn, after receiving a tip.
- Agents observed Erasmus Flecha, who was not a crew member and was unauthorized to be on the ship, conversing repeatedly late at night with crewmen Jose Pineda-Marin and Hugo Suarez.
- Around 1:50 a.m., agents saw four men, including Flecha, Pineda-Marin, and Ernesto Santo Gonzalez, emerge from a hatch dragging four large bales to an unlighted area on the ship’s seaward side.
- The bales contained approximately 287 pounds of marijuana.
- When agents moved in, Flecha attempted to flee and was apprehended.
- During the arrest sequence, in agents’ presence, Gonzalez said to Flecha: “Why so much excitement? If we are caught, we are caught.”
- Flecha did not respond; the prosecution offered Gonzalez’s remark at trial as an adoptive admission based on Flecha’s silence.

## Issues

1. Whether a codefendant’s remark made while the defendant was under arrest could be admitted against the defendant as an adoptive admission by silence.
2. If admission was error, whether the error was harmless in light of the remaining evidence.

## Decision

- The court held the trial court erred in admitting Gonzalez’s remark against Flecha as an adoptive admission by silence.
- The custodial context did not support an inference that an innocent person would naturally deny the remark; silence while under arrest is an unreliable indicator of assent.
- The court rejected the government’s claim that the remark was admissible merely to show “state of mind,” because its probative value depended on the truth of the implied assertion of joint culpability.
- The error was harmless beyond a reasonable doubt because independent evidence of Flecha’s guilt was strong, including his unauthorized presence, observed participation in moving bales, and flight.
- Flecha’s convictions were affirmed.

## Legal Principles

- Silence may be treated as an adoptive admission only when the circumstances make it natural for an innocent person to deny the statement; the inference requires a reasonable expectation of denial if untrue.
- A defendant’s silence while under arrest and in the presence of law enforcement generally cannot support an adoptive-admission inference, since an arrestee may reasonably choose not to speak to avoid self-incrimination.
- Labeling a statement as “state of mind” does not avoid hearsay limits where the statement’s relevance depends on the truth of an implied assertion connecting the defendant to criminal conduct.
- Erroneous admission of evidence does not require reversal when the properly admitted evidence establishes guilt beyond a reasonable doubt and the error did not substantially affect the verdict.

## Conclusion

The court ruled that custodial silence could not reliably be used to treat a codefendant’s statement as the defendant’s admission, but affirmed the conviction because the remaining evidence of participation in the marijuana smuggling was sufficient to render the evidentiary error harmless.


United States v. Flecha, 539 F.2d 874 (2d Cir. 1976)