                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1005
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
Dante G. Frazier,                       * District of Nebraska.
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 15, 2004
                                Filed: January 7, 2005
                                 ___________

Before SMITH, BEAM, and COLLOTON, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       On July 25, 2003, a jury convicted Appellant Dante Frazier of knowingly or
intentionally possessing pseudoephedrine with the knowledge or reasonable belief
that the pseudoephedrine would be used in the manufacture of methamphetamine.
Frazier appeals, arguing that 1) the district court1 improperly denied his motion to
suppress the evidence; 2) the government's use of postarrest, pre-Miranda silence
violated his Fifth Amendment right against self incrimination; 3) the district court
erred in denying his motion for judgment of acquittal; and 4) the district court erred

      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
in its application of the federal sentencing guidelines. For the reasons set forth
below, we affirm.

I.    BACKGROUND

        Given Frazier's challenges on appeal, we note a distinction between those facts
heard by the district court during the suppression hearing and those heard by the jury
during trial. All facts related to the investigators' motives for suspecting Frazier of
drug activity were presented to the district court during the suppression hearing and
are relevant only to Frazier's equal protection challenge. Those facts are not colored
by the lens of a jury verdict. We state all remaining facts in the light most favorable
to the jury's verdict, accepting as established all reasonable inferences supporting the
verdict. United States v. Munoz, 324 F.3d 987, 990 (8th Cir. 2003).

        On November 6, 2002, Investigators Richard Lutter and Anthony Sattlefield
of the Nebraska State Patrol Drug Commercial Interdiction Unit were conducting
commercial interdiction duties. While sitting in the drive-through of a fast food chain
off of I-80 in Nebraska, they noticed a U-Haul truck fueling at a gas station about
seventy-five yards directly in front of them. The officers suspected drug activity
based on their training and experience. They deduced that the occupants of the U-
Haul were either traveling across the country or had just stayed at an adjacent motel,
because there was no U-Haul rental facility nearby. However, the investigators noted
that the size of the U-Haul, and the fact that there was no vehicle accompanying the
U-Haul, was not consistent with that assessment. The U-Haul was a seventeen-foot,
single-bedroom size truck, which would be more useful for a local move. A man,
later identified as Dante Frazier, was washing the windshield and fueling the vehicle.

       The investigators drove to the gas station and stopped in front of the U-Haul
for a short time. They noticed a brand new padlock securing the latch of the U-Haul
truck. They found this significant because people transporting illegal narcotics are

                                          -2-
likely to lock the load. Additionally, the officers noted that the U-Haul was from
Arizona, a "source area" for controlled substances. Finally, the investigators noticed
a Bible on the front dash, which they contended is a common method drug couriers
use to avoid suspicion.

       Given the totality of these observations, the investigators considered contacting
the U-Haul's occupants at the gas station, but they decided that they did not have
time. They followed the vehicle when it left. The investigators then called a traffic
unit for assistance in the event the investigators found a reason to stop the U-Haul.
In that call, they described the U-Haul, its license plate, and the gender and race of
its occupants. Trooper Stephen Rasgorshek responded to the call and later stopped
the U-Haul for failing to maintain a lane of travel. The U-Haul pulled off the
interstate and Trooper Rasgorshek, as well as Investigators Lutter and Sattlefield,
pulled in behind.

        Trooper Rasgorshek approached the driver's side of the vehicle and asked
Frazier for his license and rental agreement. During the stop Trooper Rasgorshek
also spoke with Frazier and the passenger, David Williams. Frazier and Williams
gave conflicting reports about the purpose of their trip. Frazier said he was moving
his ex-wife's and children's furniture to California, and he planned to stay in
California for one week and then fly back to Chicago. Williams said he was helping
Frazier move his cousin's furniture to Los Angeles, that Frazier's cousin was going
to fly from Chicago to Los Angeles to meet them, and that he and Frazier were going
to drive back to Chicago after a few days in California.

       Trooper Rasgorshek asked Frazier for permission to search the U-Haul and
Frazier produced the padlock key. Trooper Rasgorshek and Investigator Lutter then
searched the vehicle. Once in the bed of the U-Haul, Investigator Lutter described
the load as being a perfect representation of what a "cover load" would look
like–including brand new furniture (like a combination set purchased at a furniture

                                          -3-
store) and an old stove, washer and dryer. None of the furniture was tied down or
padded in any way, and it all appeared to be thrown into the rear of the vehicle with
no personal items at all except some dirty clothes stuck to the inside of the washer.
Behind two mattresses in the back of the truck the officers discovered boxes
containing large plastic bags filled with white pills. Lutter opened one of the boxes
and examined the pills. He believed they were pseudoephedrine given the quantity.
He instructed the other officers to arrest the individuals for possessing a controlled
substance. Trooper Rasgorshek testified that when Frazier was arrested, his reaction
was neither angry, surprised, nor combative. Frazier did not say anything when the
officers told him why he was being arrested. After a more thorough search of the U-
Haul, officers recovered forty-eight boxes of pseudoephedrine, each with a label
indicating the quantity of "five times 17,000 tablets," containing over four million,
60 milligram tablets.

       After the arrest, the troopers took Frazier to the Nebraska State Patrol traffic
office. Investigators Lutter and Sattlefield advised Frazier of his Miranda rights
before they interviewed him. During the interview, Frazier told the investigators that
he had been contacted by "Jay," who asked him to drive the U-Haul from Chicago,
Illinois, to Ontario, California, and offered to pay Frazier $1,500 for the trip. Once
in Ontario, Frazier was to park at a particular location and call a cell phone number
that Jay had given him. Frazier also said that Williams was already in the vehicle in
Chicago when Frazier arrived, and they drove together. Frazier further stated that this
was the second such trip he had taken and that he had just completed the earlier trip
for which he was paid $1,000. The Southwest Airlines ticket stub located by the
investigators during their search evidenced that earlier trip. During a second
interview Frazier provided additional information about the individuals that had
accompanied him on his first trip, as well as information about Jay, who had
contacted him about the trips and provided the cell phone.




                                         -4-
       Frazier was ultimately indicted for possessing pseudoephedrine, a list I
chemical, knowing or having reasonable cause to believe that the chemical would be
used to manufacture a controlled substance. Frazier filed a motion to suppress the
evidence under the Fourteenth Amendment's Equal Protection Clause, arguing that
the officers had targeted him because of his race. The magistrate judge2
recommended that the district court deny the motion to suppress, and the district court
approved the recommendation. A jury found Frazier guilty on July 25, 2003, and the
district court sentenced Frazier to 188 months' imprisonment.

II.   DISCUSSION

      A.     Equal Protection Claim

       "We review suppression issues under a two-pronged standard of review: the
district court's factual findings are reviewed for clear error; its legal conclusions are
reviewed de novo." United States v. Sheikh, 367 F.3d 756, 762 (8th Cir. 2004). At
his suppression hearing, Frazier argued that he and his passenger were the subject of
racial discrimination and targeted for investigation because of their race. The district
court held that the investigators were credible when they testified that race did not
influence their decision to pursue the U-Haul truck.

       "'[T]he Constitution prohibits selective enforcement of the law based on
considerations such as race . . . [and] the constitutional basis for objecting to
intentionally discriminatory application of laws is the Equal Protection Clause . . . .'"
Johnson v. Crooks, 326 F.3d 995, 999 (8th Cir. 2003) (quoting Whren v. United
States, 517 U.S. 806, 813 (1996)). Like the Sixth Circuit in United States v. Avery,
137 F.3d 343, 353 (6th Cir. 1997), we recognize that encounters with officers may


      2
       The Honorable Kathleen A. Jaudzemis, United States Magistrate Judge for the
District of Nebraska (now retired).

                                          -5-
violate the Equal Protection Clause when initiated solely based on racial
considerations. United States v. Woods, 213 F.3d 1021, 1022-23 (8th Cir. 2000).
Drawing on ordinary equal protection standards, this claim requires proof that the
investigators targeted Frazier solely because of his race. Johnson, 326 F.3d at 1000;
see also Avery, 137 F.3d at 355. "An officer is not held to a 'suspicion of criminal
activity standard' when he embarks to investigate someone. The officer merely is
prohibited from his pursuit if he acts based solely on race." Avery, 137 F.3d at 358.
In a pre-contact type of case such as this one (the stage at which an officer decides
to target someone for surveillance), Frazier may prove a prima facie equal protection
claim with direct evidence of racial discrimination. Johnson, 326 F.3d at 1000; see
also Avery, 137 F.3d at 355 (discussing the equal protection analysis and highlighting
the fact that ultimately the "stage" of investigation is irrelevant; the inquiry is whether
a government actor has imposed unequal burdens based upon race).

       In support of his claim, Frazier generally argued that each of the investigator's
explanations about their initial suspicions, in and of themselves, are not supported by
sound reasoning and do not justify their decision to approach Frazier. Further
evidence of invidious discrimination, he argued, is the fact that Investigator Lutter
specifically told Trooper Rasgorshek that the men in the U-Haul were black when he
called Rasgorshek for assistance. Like the district court, we find that Frazier has
failed to establish an equal protection claim.

       Reviewing the evidence submitted at the suppression hearing, we recognize
that the stated indicators and disclaimers identified by the investigators were highly
consistent with innocent behavior by many law-abiding motorists and may not have
been sufficient to raise a reasonable, articulable suspicion that drug trafficking
activities might be in progress. We need not analyze that issue in reaching our
decision, however.




                                           -6-
       Whether the officers acted on a legitimate "hunch" or even arbitrarily in their
investigation, Frazier lacks sufficient proof of discrimination to proceed with that
inquiry. Under our cases, Frazier "must 'identify affirmative evidence from which a
jury could find that the plaintiff has carried his or her burden of proving the pertinent
motive.'" Johnson, 326 F.3d at 1000 (quoting Crawford-El v. Britton, 523 U.S. 574,
600 (1998)). Frazier's attack on the officers' credibility is insufficient to establish an
equal protection violation. Frazier failed to provide enough evidence to establish that
the officers targeted him solely because of his race. See id.

      B.     Fifth Amendment Claim

      Frazier also argues that testimony elicited by the government during its case-in-
chief concerning Frazier's silence after arrest violated his Fifth Amendment right
against self-incrimination. This we review de novo. United States v. Washington,
318 F.3d 845, 854-55 (8th Cir.), cert. denied, 124 S. Ct. 251, and cert. denied sub
nom., 124 S. Ct. 209 (2003).

       The Fifth Amendment to the United States Constitution provides that "[n]o
person shall be . . . compelled in any criminal case to be a witness against himself."
U.S. Const. amend. V. The core protection afforded by the Fifth Amendment is a
prohibition on compelling a criminal defendant to testify against himself at trial. See,
e.g., Chavez v. Martinez, 538 U.S. 760, 767 (2003) (plurality opinion). "To give full
effect to this protection, the Supreme Court has held that 'the fifth amendment . . .
forbids . . . comment by the prosecution on the accused's silence . . . .'" United States
v. Moore, 104 F.3d 377, 385 (D.C. Cir. 1997) (omissions in original) (quoting Griffin
v. California, 380 U.S. 609, 615 (1965)).3 At issue in the instant case is whether the


      3
      Griffin, however, dealt specifically with the prosecutor's comment on the
defendant's failure to testify at trial. Griffin did not determine the propriety of
prosecutorial comment on a defendant's pre-trial silence. See Moore, 104 F.3d at 385.

                                           -7-
use of Frazier's postarrest, pre-Miranda silence during the government's case-in-chief
was constitutional. This is an issue of first impression in our circuit.

      The following is an example of the line of questioning at issue:

      Q [Prosecutor]: Did you talk with Mr. Frazier . . . or tell [him] why [he
      was] being arrested?

      A [Officer]: I just told [him] that [he was] under arrest for suspicion of
      narcotics.

      Q:     What was Mr. Frazier's reaction when you . . . placed him into
             custody?

      A:      There really wasn't a reaction.

      Q:     Was he angry?

      A:      No, sir.

      Q:     Was he surprised?

      A:      No, sir.

      Q:      Did he become combative?

      A:      No, sir.




"However, the Supreme Court has elsewhere made clear that 'the prosecution may not
. . . use at trial the fact that [the defendant] stood mute or claimed his privilege in the
face of accusation' when he was 'under police custodial interrogation.'" Id. (omission
and alteration in original) (quoting Miranda v. Arizona, 384 U.S. 436, 468 n.37
(1966)). Thus, this protection extends to at least the time of custodial interrogation.
The question we must address is whether it extends further.

                                           -8-
      Q:     Did he say anything to you?

      A:     No, sir.

      Q:     Did he do anything when you put the handcuffs on him?

      A:     No, sir.


       At closing, the government noted Frazier's conduct after arrest as one factor
that could be indicative of guilt. "If a person has a friend who betrays them, what's
the innocent person going to do when they discover they're going to jail. Everybody
else is back in Chicago. Are they going to become combative, angry, emotional,
demanding? There was none of them from . . . Mr. Frazier."

      Frazier argues that because the introduction of his silence was not for
impeachment purposes, it was improper. The use of silence in criminal cases has
been addressed by the Supreme Court under almost all but the instant circumstances.
In Doyle v. Ohio, 426 U.S. 610 (1976), the Court held that impeachment use of a
defendant's postarrest, post-Miranda silence violated the Due Process Clause of the
Fourteenth Amendment, id. at 619, because 1) post-Miranda silence is insolubly
ambiguous and may be nothing more than an arrestee's exercise of Miranda rights,
and 2) Miranda warnings carry an implicit assurance that silence will not be used
against the arrestee and thus use of silence for purposes of impeachment would
penalize the defendant for relying on the government's assurances. Id. at 617-18.

      The admissibility of postarrest, post-Miranda silence in the case-in-chief was
addressed by the Supreme Court in Wainwright v. Greenfield, 474 U.S. 284 (1986).
There, the defendant, after being given Miranda warnings, repeatedly stated that he
understood his rights and wanted to speak to a lawyer. Id. at 286. At trial, the
defendant pleaded not guilty by reason of insanity and the government attempted to
introduce evidence in its case-in-chief that the defendant invoked his right to counsel

                                         -9-
in the face of questioning, suggesting in closing that the defendant's repeated requests
for counsel and refusal to answer questions were inconsistent with his claim of
insanity. Id. at 287. The Court held that such evidence, like that at issue in Doyle,
was inadmissible as substantive evidence of guilt because it is equally unfair to
promise an arrested person that his silence will not be used against him and then use
that silence to overcome his plea of insanity. Id. at 292.

        Turning to postarrest, pre-Miranda silence, the Court in Fletcher v. Weir held
that the use of such evidence for purposes of impeachment did not violate Due
Process. 455 U.S. 603, 607 (1982). The Court rejected the argument that "'an arrest,
by itself, is governmental action which implicitly induces a defendant to remain
silent.'" Id. at 606 (quoting Fletcher v. Weir, 658 F.2d 1126, 1131 (6th Cir. 1981)).
"In the absence of the sort of affirmative assurances embodied in the Miranda
warnings, we do not believe that it violates due process of law for a State to permit
cross-examination as to postarrest silence when a defendant chooses to take the
stand." Id. at 607. Again, though, the holding in Fletcher is restricted to use of
silence for impeachment purposes.

        The use of postarrest, pre-Miranda silence in the government's case-in-chief is
still in dispute and has yet to be addressed by this court. It has been noted that the
"privilege against compulsory self-incrimination is simply irrelevant to a citizen's
decision to remain silent when he is under no official compulsion to speak." Jenkins
v. Anderson, 447 U.S. 231, 241 (1980) (Stevens, J., concurring) (neither the Fifth nor
the Fourteenth Amendment poses any obstacle to the use of prearrest silence for
impeachment purposes). The crux of our inquiry today is to determine at what point
a defendant is under "official compulsion to speak" because silence in the face of
such compulsion constitutes a "statement" for purposes of a Fifth Amendment
inquiry.




                                         -10-
       Does the use of postarrest, pre-Miranda silence during the government's case-
in-chief constitute an impermissible use of an accused's coerced incriminating
"statement?" There is a conflict of authority on the question. See United States v.
Hernandez, 948 F.2d 316, 323 (7th Cir. 1991) (refusing the introduction of
impeaching evidence of silence during the prosecutor's case-in-chief); United States
v. Velarde-Gomez, 269 F.3d 1023, 1029 (9th Cir. 2001) (en banc) (recognizing that
because the right to remain silent derives from the Constitution and not from the
Miranda warnings, commenting on a defendant's invocation of his right to silence
violates the Fifth Amendment); Moore, 104 F.3d at 385 (holding that custody and not
interrogation is the triggering mechanism for the right of pretrial silence under
Miranda). But see United States v. Rivera, 944 F.2d 1563, 1567-68 (11th Cir. 1991)
(recognizing that the government may comment on a defendant's silence if the silence
occurred before Miranda warnings are given); United States v. Love, 767 F.2d 1052,
1063 (4th Cir. 1985) (same). On the facts before us, we find no Fifth Amendment
violation.

       Although we have previously held that "'the receipt of Miranda warnings is
determinative of the constitutional issue,'" Vick v. Lockhart, 952 F.2d 999, 1003 (8th
Cir. 1991) (quoting United States v. Massey, 687 F.2d 1348, 1353 (10th Cir. 1982)),
the more precise issue is whether Frazier was under any compulsion to speak at the
time of his silence. He was not. Although Frazier was under arrest, there was no
governmental action at that point inducing his silence. Thus he was under no
government-imposed compulsion to speak. It is not as if Frazier refused to answer
questions in the face of interrogation. We are speaking in this case only of the
defendant's silence during and just after his arrest. As noted earlier, an arrest by itself
is not governmental action that implicitly induces a defendant to remain silent.
Fletcher, 455 U.S. at 606. Therefore, on these facts, the use of Frazier's silence in the
government's case-in-chief as evidence of guilt did not violate his Fifth Amendment
rights. We do not decide today whether compulsion may exist under any other
postarrest, pre-Miranda circumstances.

                                           -11-
       But even if the government's conduct here violated the Constitution, we would
still affirm. Ordinarily we review Doyle-type claims under the harmless error
standard, which requires "'the beneficiary of a constitutional error to prove beyond
a reasonable doubt that the error complained of did not contribute to the verdict
obtained.'" Vick, 952 F.2d at 1002 (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). Here, however, because there was no objection to the specific line of
questioning mentioned above, we review its admissibility for plain error and find
none.4 Fed. R. Crim. P. 52(b).

       The overwhelming evidence developed at trial establishes Frazier's guilt
beyond a reasonable doubt including, among other things, the contradictory reasons
for the purpose of the trip; Frazier's previous trip under similar circumstances;
Frazier's inconsistency in stating whether he knew his passenger prior to the trip, as
well as several other contradictory statements; the contents of the U-Haul; the partial
concealment of the drugs within the U-Haul under the "cover load;" and the sheer
volume of pills. In light of the above, even if we were convinced that the prosecutor's
reference to Frazier's silence was improper, which we are not, its admission at trial
was not plainly erroneous.

      C.     Sufficiency of the Evidence

       Frazier further argues that there was insufficient evidence at trial of his
knowledge of the pseudoephedrine. We review the evidence in the light most
favorable to the jury's verdict, reversing only if no reasonable jury could have found
the defendant guilty beyond a reasonable doubt. United States v. Serrano-Lopez, 366
F.3d 628, 634 (8th Cir. 2004).

      4
       Frazier's counsel objected to a subsequent, similar line of questioning
concerning whether Trooper Rasgorshek heard Mr. Frazier say anything while they
were at the 66 Station, but no objection was made during the line of questioning at
issue on appeal and specifically noted in this opinion.

                                         -12-
       For the jury to find Frazier guilty, the government had to prove beyond a
reasonable doubt that he 1) knowingly possessed the pseudoephedrine, and 2) he
knew or had reasonable cause to believe it would be used to manufacture a controlled
substance. 21 U.S.C. § 841(c)(2). Possession can be actual or constructive. Here,
Frazier was not in physical possession of the pseudoephedrine so the government was
charged with proving constructive possession. "'[C]onstructive possession requires
knowledge of an object, the ability to control it, and the intent to do so.'" Serrano-
Lopez, 366 F.3d at 634-35 (quoting United States v. Lee, 356 F.3d 831, 837 (8th Cir.
2003), cert. denied sub nom., 124 S. Ct. 2830 (2004)). Frazier contends the issue at
trial was knowledge–did Frazier know he was carrying pseudoephedrine, and if he
did, did he know it would be used to manufacture methamphetamine?

             We are cognizant of the inferential nature of the proof of
      knowledge. But a defendant's knowledge generally is difficult to prove
      in any other way. We guard against the use of unreasonable inferences
      through our standard of review, but we do not require that the inferences
      themselves be shown by the evidentiary standard applicable to the
      determination of guilt.

Id. at 636.

       In the present case, drawing all reasonable inferences in favor of the guilty
verdict returned by the jury, the government presented sufficient evidence from which
a jury could have found beyond a reasonable doubt that Frazier knowingly possessed
pseudoephedrine, and knew or had reason to believe it would be used to manufacture
a controlled substance. The large quantity of pseudoephedrine (over four million
tablets) is evidence of Frazier's knowledge. Even if Frazier did not own the U-Haul
or the contents being transported, it is unlikely that the owner would place such a
significant amount of pseudoephedrine in the hands of people who do not know it is
there. See Serrano-Lopez, 366 F.3d at 635. This was also Frazier's second trip. And,
in addition to the facts noted previously in support of our plain error determination,

                                        -13-
including Frazier's own contradictory statements, Frazier also had possession of the
key to the padlock for the U-Haul. Each of these facts supports an inference of
knowledge in this case. We are unable to conclude that no reasonable jury could have
found Frazier guilty beyond a reasonable doubt.

      D.     Sentencing

      Frazier was convicted under 21 U.S.C. § 841(c)(2) and was sentenced pursuant
to U.S.S.G. § 2D1.11. Because Frazier was found responsible for 244.8 kilograms
of pseudoephedrine, he was placed at a base offense level of 38. However, at
sentencing, the district court found Frazier was a minor participant and adjusted his
offense level down two levels, resulting in an adjusted offense level of 36. Frazier
challenges this sentence, arguing that the level 30 cap listed in U.S.S.G. § 2D1.1
should apply, as that guideline is "inextricably linked" with section 2D1.11. We
disagree.

       A district court's interpretation and application of the Sentencing Guidelines
are reviewed de novo. United States v. Ashley, 342 F.3d 850, 852 (8th Cir. 2003).
Based upon our de novo review, we affirm the district court's sentence. The
applicable guideline for a violation of 21 U.S.C. § 841(c)(2) is section 2D1.11.
Despite Frazier's arguments to the contrary, section 2D1.1 does not apply in this
instance. The plain language of section 2D1.11 remains clear. We therefore affirm
Frazier's sentence.

      E.     Blakely Issue

      Lastly, by way of post-argument briefing, Frazier challenges the legality of his
sentence under the Supreme Court's recent opinion in Blakely v. Washington, 124 S.
Ct. 2531 (2004). Blakely dealt with a Washington state sentencing proceeding and
declared that "[w]hen a judge inflicts punishment that the jury's verdict alone does not

                                         -14-
allow, the jury has not found all the facts which the law makes essential to the
punishment, and the judge exceeds his proper authority." Id. at 2537 (internal
quotation and citation omitted). Here, Frazier argues that because the jury did not
find the quantity of pseudoephedrine that the district court used to sentence Frazier,
his maximum base offense level should be 12, the maximum offense level available
without a specified quantity.

      Whatever the ramifications of Blakely, we will not reach that issue until after
the Supreme Court issues its opinions in United States v. Booker and United States
v. Fanfan. See Administrative Order regarding Blakely issues entered on September
27, 2004.

III.   CONCLUSION

       For the reasons stated herein, we affirm.
                       ______________________________




                                        -15-
