The opinion of the court was delivered by: Dalzell, J.
We here address the question of whether silence says anything, particularly in a federal criminal prosecution. Almost five hundred years ago, Sir Thomas More sought to use silence as a shield, wrapping himself in the maxim "silence gives consent"*fn1 when all of England knew he meant no such thing about Henry VIII's Acts of Succession and Supremacy.*fn2
At a far less exalted plane, the Government here sought to make Terrell Hampton's silence a sword against him. As this is a subject that has received relatively little judicial attention, we turn ours to it at some length.
Specifically, the Superseding Indictment in this case charges Hampton with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At defendant's first trial the jury could not reach a verdict and, finding manifest necessity, we declared a mistrial.
Before the second trial began, the Government filed a motion in limine to admit evidence of defendant's choice not to answer certain questions during his custodial interview. The interrogating Secret Service agents posed these (unanswered) questions to Hampton after he had explicitly waived his Miranda rights and uttered only one responsive statement during the course of the interrogation. After receiving defendant's response opposing the Government's motion, we ordered the parties to familiarize themselves with four cases and several issues that their memoranda had not addressed. In response to our Order, the Government filed a memorandum in further support of its motion. Counsel then convened in Chambers on the morning of the first day of trial to discuss the pending motion in limine.
After a brief colloquy, we denied the Government's motion in limine under Fed. R. Evid. 403 explaining that a memorandum would follow to fully explain our reasoning.
On May 12, 2011, Secret Service agents conducted a warranted search of a house on Delancey Street in Philadelphia, Pennsylvania ("the House"). Hampton was inside the House at the time of the search, but the Government alleged -- and it has never been disputed -- that this House was not his primary residence. The Government contended that when the agents entered the House to conduct their search that day, they saw Hampton on the stairs. When the agents searched the dwelling -- and, more specifically, the upstairs middle bedroom -- they recovered, from under the mattress in that room, the semi-automatic firearm charged in the Superseding Indictment.
In connection with the investigation that led to the search warrant's execution, agents obtained a photograph of Hampton from his Facebook page ("Facebook photograph" or "photograph"). That photograph allegedly shows Hampton with an object in his belt that the Government contends in the Superseding Indictment is the same firearm recovered on the day of the search.
Hampton was arrested at the House. After being taken to the Secret Service's offices in Center City, Philadelphia, Hampton signed a waiver of his Miranda rights. The subsequent interrogation took place in two parts. The first portion focused on the felon-in-possession offense before us. Once that part of the interview concluded, another Secret Service agent questioned Hampton about an alleged house-theft scheme that gave rise to the search of the House, but is unrelated to this felon-in-possession case.
During the course of the first part of the interview --the only portion of the interrogation relevant to this trial --Hampton was asked about the gun recovered at the House. He did not answer such questions. The agents then confronted Hampton with the Facebook photograph that showed him with an object in his belt that the Government asserts is a firearm -- indeed, the same firearm recovered from the House. When asked about the object in the Facebook photograph, Hampton again remained silent. But when the agents asked him a more general question about the photograph, Hampton admitted it was he in the photograph.
The Government's motion in limine sought to elicit testimony in its case-in-chief that was expected to be the same, or similar to, an agent's testimony from the first trial.*fn3 In particular, the Government sought admission of "evidence that, having waived his Miranda rights, the defendant failed to respond to questions put to him about (i) the gun found during the search of the Delancey Street House and (ii) the gun pictured in the Facebook Photograph." Mot. 1. The Government also sought leave "to comment on that failure in [its] closing argument[,]" Mot. 2, but this "comment would not be addressed to the defendant's silence, but rather to the inconsistency in the statement he knowingly and voluntarily chose to make." Mem. 13.
The Government's motion was doubtless prompted by defense counsel's objection to the Government's references to the supposed significance of those silences in closing arguments at the first trial. As we shared the defense's concerns under the recent teaching of our Court of Appeals in United States v. Waller, 654 F.3d 430 (3d Cir. 2011), we sustained the objection and instructed the jury to disregard the offending references.
A. The Evidence At Issue Is An Adoptive Admission
Though the Government described the evidence at issue in its motion as a "fail[ure] to respond to questions"*fn4 , Mot. 1, offered for the purpose of highlighting an "inconsistency in the statement he knowingly and voluntarily chose to make[,]" such a description will not withstand scrutiny. Mem. 13. As to Hampton's silence in response to questions about the gun in the Facebook photo, the Government specifically sought to admit silence evidence to counter Hampton's argument "that the gun shown in the Facebook Photo might well be a toy or a replica of a firearm." Id. The Government contended that "[i]f that were the case, one would have expected Hampton to inform ...