UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
October 9, 1984
UNITED STATES OF AMERICA
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Before: GIBBONS and SLOVITER, Circuit Judges and CALDWELL, Circuit Judge*fn*
MEMORANDUM OPINION OF THE COURT
GIBBONS, Circuit Judge:
This appeal is before us following our remand in United States v. Cummiskey. 728 F.2d 200 (3d Cir. 1984), to determine whether or not Miranda warnings had been given to Patrick Cummiskey prior to his assertion of the right to remain silent at the time of his arrest. In Cummiskey we held that the prosecutor could properly comment at trial on defendant's post-arrest silence only if the government proved that Miranda warnings were not given. The district court found that Miranda warnings had not been given at the relevant time, and reinstated the judgment of sentence. That finding is not challenged as clearly erroneous, and our prior decision requires an affirmance of the judgment. Cummiskey contends that this court misconstrued the holding in Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), but concedes that our prior ruling is law of the case, which can be corrected only by this court sitting in banc or by the Supreme Court on certiorari. The judgment appealed from will, therefore, be affirmed.