(concurring in the result):
The majority asserts that “the Fifth Amendment was not implicated” in this case. 48 MJ at 240. It is uncontroverted that, prior to the silence commented on by trial counsel, appellant was arrested by OSI, advised of his rights, and exercised his right to counsel. The dissent asserts that this is not a case “in which his silence was temporally or geographically related to an arrest and warnings.” 48 MJ at 243. In my view, this is an open question which should be addressed. See United States v. Ross, 123 F.3d 1181, 1188 (9th Cir.l997)(case law does not delineate how long warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), protect a defendant or at what point that protection evaporates).
In any event, I would hold that, even applying a lesser standard for assessing prejudice (cf. United States v. Tenorio, 69 F.3d 1103, 1106 (11th Cir.1995)), appellant’s convictions must be reversed and a rehearing authorized.