concurring.
Although I concur in the judgment of the court, I write separately because I believe Osuna-Zepeda’s Fifth Amendment right to remain silent was violated when, as part of its case-in-chief, the government elicited comments from the arresting officer regarding Osuna-Zepeda’s silence after he was arrested but before he received a Miranda warning. While this panel must follow United States v. Frazier, 408 F.3d 1102, 1109-11 (8th Cir.2005), I note that Frazier is contrary to the clear trend emerging from the circuits on this issue and, in my opinion, contrary to the Fifth Amendment of the Constitution. I suggest “the Fifth Amendment ... forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) (footnote omitted).
The Frazier opinion holds that a criminal defendant under custodial arrest cannot suffer a violation of his right to remain silent because he is not exposed to an official compulsion to speak sufficient to trigger Fifth Amendment protection. 408 F.3d at 1111. In reviewing Osuna-Zepe-da’s Fifth Amendment claim, it is important to remember that the only reason the government offered the arresting officer’s testimony regarding Osuna-Zepeda’s silence was to plant the following seed with the jury: An innocent person would have instinctively responded to arrest by objecting or otherwise protesting his innocence; since Osuna-Zepeda did not say anything, you should infer that he is guilty.
Using an arrested person’s silence as evidence of guilt in the government’s casein-chief presents many problems. As an evidentiary matter, silence in this case lacked probative value because the jury could not infer with adequate reliability *846why Osuna-Zepeda, when faced with custodial arrest, remained silent. See United States v. Hale, 422 U.S. 171, 180, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (holding silence during a posLMiranda custodial interrogation lacked probative value). A person standing mute in the face of a custodial arrest may be consciously invoking the right to remain silent, calmly executing a pre-planned response to arrest, or not making any conscious response at all. Accordingly, the appropriate conclusion is that silence is “insolubly ambiguous.” Doyle v. Ohio, 426 U.S. 610, 617-18, 96 S.Ct. 2240, 49 L.Ed.2d 91 & n.8 (1976) (stating post-Miranda silence lacks probative value); see also Hale, 422 U.S. at 180, 95 S.Ct. 2133 (“Not only is evidence of silence at the time of arrest generally not very probative of a defendant’s credibility, but it also has a significant potential for prejudice.”). The fact that Osuna-Zepeda did "not speak English only added to the ambiguity." Even if he understood the arresting officer, he may have stood mute because he lacked sufficient ability to articulate a protest of his innocence in English. Under these facts, it was rank speculation to conclude that his silence demonstrated guilt.
Using evidence of pre-Miranda silence also raises Fifth Amendment concerns. By focusing on what official acts trigger the right to remain silent, Frazier ignores that a pre-trial defendant can invoke his right to remain silent. As part of the broad construction of the right to remain silent, the Supreme Court has emphasized that “no ritualistic formula is necessary in order to invoke the privilege.” Quinn v. United States, 349 U.S. 155, 164, 75 S.Ct. 668, 99 L.Ed. 964 (1955). Standing mute invokes the privilege. See Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“The prosecution may not ... use at trial the- fact that [the defendant] stood mute or, claimed his privilege in the face of accusation.”) (emphasis added). Likewise, Frazier gives short-shrift to the many contexts in -which the privilege applies. Even though the privilege against self-incrimination is technically a trial right, the Supreme Court has recognized that “an inability to protect the right at one stage of a proceeding may make its invocation useless 'at a later stage.” Michigan v. Tucker, 417 U.S. 433, 440-41, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). Accordingly, Fifth Amendment protection applies broadly in a variety of pretrial settings. See Kastigar v. United States, 406 U.S. 441, 444-45, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (“It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.”) (footnote omitted).
More importantly, I very much doubt that we would allow the government to use in its case-in-chief an arrested suspect’s statement to the effect of “I wish to exercise my right to remain silent,” or “I want to talk to my lawyer.” If we will not allow use of the statement “I exercise my right to remain silent under the Fifth Amendment” to prove the defendant’s guilt, we should not allow silence to prove guilt. For purposes of the Fifth Amendment, silence is the same as a statement invoking the right to remain silent. Fields v. Leapley, 30 F.3d 986, 990 (8th Cir.1994) (citing Wainwright v. Greenfield, 474 U.S. 284, 295 n. 13, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986)). We should treat it the same.
Lastly, refusing Osuna-Zepeda the right to remain silent when he was arrested fundamentally contradicts the government’s logic for using his silence as evidence of his guilt. At trial, the government relied on the premise that an in*847nocent person would instinctively speak out when arrested; now on appeal, the court concludes that Osuna-Zepeda deserves no protection under the Fifth Amendment because he did not face an official compulsion to speak. I suggest that if an arrested person would feel an instinctive urge to protest his innocence, he has experienced an official compulsion to speak sufficient to trigger the right to remain silent.
I note that Frazier is contrary to the clear majority of circuits that recognize a general Fifth Amendment prohibition against using, a defendant’s pre-Miranda silence as evidence of guilt. Compare United States v. Whitehead, 200 F.3d 634, 639 (9th Cir.2000) (admitting “evidence of [defendant’s] post-arrest, pre-Miranda silence ... plainly infringed upon [defendant’s] privilege against self-incrimination”) (no interrogation or questioning by arresting officer); United States v. Moore, 104 F.3d 377, 385 (D.C.Cir.1997) (finding Fifth Amendment violation when government commented on defendant’s pr e-Miranda silence during closing because “custody and not interrogation is the triggering mechanism for the right of pretrial silence under Miranda”) (no police questioning); United States v. Hernandez, 948 F.2d 316, 323 (7th Cir.1991) (finding comments during the government’s case-in-chief regarding the defendant’s refusal to speak with arresting officers violated the defendant’s right to remain silent) (no police questioning); United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981) (holding that using the defendant’s pre-Miranda silence as evidence of guilt violated the Fifth Amendment) (no police questioning); with Combs v. Coyle, 205 F.3d 269, 283 (6th Cir.2000) (holding that “use of a defendant’s prearrest silence as substantive evidence of guilt violates the Fifth Amendment’s privilege against self-incrimination”) (minimal police questioning); and United States v. Burson, 952 F.2d 1196, 1201 (10th Cir.1991) (finding that admission of evidence of defendant’s refusal to answer questions prior to arrest or Miranda warnings violated his right to remain silent) (non-custodial questioning); Coppola v. Powell, 878 F.2d 1562, 1565 (1st Cir.1989) (stating the right to remain silent attaches prior to initiation of adversarial proceedings and use of pre-arrest silence as evidence of guilt violated the Fifth Amendment) (non-custodial questioning). But see United States v. Zanabria, 74 F.3d 590, 593 (5th Cir.1996) (holding no violation because the Fifth Amendment only protects against compelled statements and arrested defendant was not compelled to speak); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir.1991) (finding no due process violation when the government comments “on a defendant’s silence when it occurs after arrest, but before Miranda warnings are given”); and United States v. Love, 767 F.2d 1052, 1063 (4th Cir.1985) (finding no constitutional violation when government referred to defendant’s post-arrest, pr e-Miranda silence).
I respectfully submit Frazier- was wrongly decided. Accordingly, this case before us merits en banc rehearing to allow the full court to examine the critical Fifth Amendment issue at stake.