concurring:
I agree that there is no plain error warranting reversal in this case. Coates does not allege that either Officer Carrington’s testimony or the prosecutor’s arguments at closing referred to Coates’ silence after he was arrested or after the police should have advised him of his rights under Miranda. Whether pre-Miranda, pre-arrest silence comes within the protection of the Fifth Amendment is a question this court has not addressed and need not address in this case. The Supreme Court has expressly left the issue open for decision. See Jenkins v. Anderson, 447 U.S. 231, 236 n. 2, 100 S.Ct. 2124, 2128 n. 2, 65 L.Ed.2d 86 (1980). The U.S. Court of Appeals for the District of Columbia has recently addressed the issue of pretrial silence, but specifically in a post-arrest situation. See United States v. Moore, 322 U.S.App.D.C. 334, 341, 104 F.3d 377, 384 (1997). As the majority notes, the other federal circuit courts’ decisions on the issue are in conflict. See ante at page 1104 and n. 12. Therefore, any error cannot have been plain as it was not “obvious” and “clear under current law.” Hasty v. United States, 669 A.2d 127, 134 (D.C.1995).