United States v. Gathon Shannon , 766 F.3d 346 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-2389
_____________
UNITED STATES OF AMERICA
v.
GATHON DUDLEY SHANNON,
Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-11-cr-00237-003)
District Judge: Honorable Alan N. Bloch
_______________
Argued on July 8, 2014
Before: RENDELL, CHAGARES, and JORDAN, Circuit
Judges
(Filed: September 8, 2014)
_______________
Paul D. Boas, Esq. [ARGUED]
429 Fourth Avenue
Law and Finance Building
Suite 500
Pittsburgh, PA 15219
Counsel for Appellant
Donovan J. Cocas, Esq. [ARGUED]
Rebecca R. Haywood, Esq.
Office of United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
_______________
OPINION
_______________
JORDAN, Circuit Judge.
Gathon Dudley Shannon appeals his conviction and
the sentence imposed on him by the United States District
Court for the Western District of Pennsylvania. Among other
things, he contends that the government violated his Fifth
Amendment rights at trial by cross-examining him about his
post-arrest silence.1 Because we agree that the government
1
By “post-arrest” silence, we mean Shannon’s silence
following his arrest and receipt of the attendant warnings
under Miranda v. Arizona of his right to remain silent. 384
U.S. 436, 467-68 (1966). Shannon also argues that the
District Court abused its discretion by admitting into evidence
2
violated his constitutional right to remain silent, we must
vacate the judgment of conviction and remand for a new trial.
I. BACKGROUND
Whether Shannon’s conviction can stand is contingent
on whether the constitutional error that infected his cross-
examination was “harmless beyond a reasonable doubt.”2
Chapman v. California, 386 U.S. 18, 24 (1967). We
therefore provide a detailed overview of the evidence
presented at trial.
A. Factual History
In December 2009, the Pennsylvania State Police
(“PSP”) along with the United States Drug Enforcement
Administration (“DEA”) began investigating an increase in
his two prior convictions despite their being more than twenty
years old; that it erred in issuing certain supplemental jury
instructions after the jury had indicated that it was
deadlocked; and that it violated his Sixth Amendment rights
by basing his sentence on a judicial finding of fact – which
implicated a specific statutory maximum and minimum
sentence – rather than on the jury’s verdict. We mention
these issues later, see infra at n.9, but do not decide them
because the Fifth Amendment violations apparent on the
record require reversal.
2
As explained within, the government must “prove
beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained,” to sustain the
conviction. Chapman v. California, 386 U.S. 18, 24 (1967).
3
cocaine sales across Beaver County, Pennsylvania. Working
with confidential informants, the DEA was able to identify
the local distributor as Adrian Taylor, and, through a series of
wiretaps, learned that a large shipment of cocaine was
expected to arrive in Beaver County during the weekend of
August 20-21, 2011.
Using traditional surveillance techniques, the DEA
watched Taylor leave his Beaver Falls home on August 20 to
collect money from his street-level dealers in anticipation of
the shipment’s arrival. According to Taylor – who ended up
testifying on behalf of the government – he then drove to a
hotel near the Pittsburgh International Airport carrying two
bags, one full of cash that he had collected from his associates
and the other containing items necessary to “wrap” the cash.3
There, he met with the cocaine supplier, Vincent
Middlebrooks from Houston, Texas, who counted the cash
and wrapped it while Taylor waited. Taylor testified that,
during drug deals like this, he “always only [met with]
Middlebrooks.” (App. at 984.) According to Taylor, after the
cash was prepared, Middlebrooks drove to Washington
County, Pennsylvania, where he was expected to “grab[] the
coke” and then come back and transfer the drugs to Taylor.
(Id. at 985.)
Shortly after midnight the following day, when the
exchange of drugs for cash was evidently complete, a DEA
team saw Taylor flag down Middlebrooks at a second hotel.
The two conversed briefly, and Taylor left and drove home.
The agents then observed Middlebrooks go back to the first
3
“Wrapping” the cash means shrink-wrapping it in
preparation for exchanging the cash for drugs.
4
hotel. The next morning, agents saw Middlebrooks return his
rental car at the Pittsburgh airport and embark on a flight back
to Houston.
Given that Taylor had succeeded in bringing multiple
kilograms of cocaine into Beaver County, the DEA was able
to persuade a judge that a “roving wiretap” on Taylor’s
communications was warranted to follow the drugs and
money and to learn more information about Middlebrooks.4
In the meantime, by early September, Taylor’s Beaver
County associates had already sold all the cocaine from the
August shipment and were, as the government says,
“clamoring for more.” (Gov’t’s Br. at 6.) Taylor thus
immediately began preparing for the next deal, collecting as
much cash as he could to bankroll another shipment.
On September 27, 2011, Taylor texted Middlebrooks,
asking when the next cocaine shipment was expected to arrive
in Beaver County. That was the first communication between
the two that the government had intercepted. The two then
spoke by telephone, with Middlebrooks confirming that the
next shipment would arrive within two days, on Thursday,
September 29, 2011. During that telephone call, in which
Taylor agreed to buy 16 kilograms of cocaine, Middlebrooks
confirmed that he would fly to Cleveland, Ohio, on
September 28 and proceed to drive to a hotel near Taylor’s
house, where he would spend the night packaging the cash for
the following day’s deal.
4
A regular wiretap involves tapping a particular phone
whereas a roving wiretap authorizes the government to, in
effect, tap a person, “intercept[ing] any and all identified
telephones used by that person.” (App. at 284.)
5
On the night of September 28, 2011, DEA agents in
Cleveland spotted Middlebrooks as he deplaned from a flight
inbound from Houston, walking with a black roller-bag. The
agents followed Middlebrooks as he drove a rental car two
hours from the Cleveland airport to one of the Pittsburgh
hotels where he had previously met Taylor. While en route,
Middlebrooks spoke with Taylor on the phone and stated that
he “got the car and everything.” (App. at 624.) Taylor
responded by warning Middlebrooks to “keep your eye out.”
(Id. at 625.)
In the early morning hours of September 29, 2011,
DEA agents watched as Taylor arrived at the hotel – again,
carrying two bags – and joined Middlebrooks. After
approximately ten minutes together, Taylor walked out
without the two bags and returned to his vehicle. Several
hours later, Middlebrooks called Taylor and told him that he
was “on the move.” (Id. at 669.) Having wrapped the money
into nine packets, Middlebrooks left the hotel with a single
bag containing the cash. As he proceeded to drive to a truck
stop in Eighty Four, Pennsylvania, in Washington County –
the same county where the August 20-21 cocaine transaction
had occurred – several DEA agents surreptitiously followed
him.5
According to the government, once Middlebrooks
reached the truck stop, the agents were forced to “hang back
and watch from a distance so as not to blow their cover.”
5
Eighty Four is a town in Washington County,
Pennsylvania, and, by Shannon’s testimony, is also the name
of the local truck stop.
6
(Gov’t’s Br. at 8.) From their vantage point, they saw
Middlebrooks back his vehicle up to a tractor-trailer rig, open
his trunk, and then hand the bag full of packaged cash to a
man – later identified as Shannon – standing beside the rig.
Notably, the agents said that they did not see Middlebrooks
receive anything in return because their view was partially
obstructed by a building and various parked trucks. The next
thing the agents observed was Middlebrooks getting back into
his car. The agents followed him as he rendezvoused with
Taylor at the same hotel from which he had come. At that
point, given that the money had already changed hands, the
officers moved in to arrest both men. When Taylor and
Middlebrooks were taken into custody, each was found with
three different cell phones on their persons, including a Boost
Mobile Phone on Middlebrooks. “[A] black bag containing a
large amount of cocaine” was also found in the trunk of
Middlebrooks’s car. (App. at 801.)
Back at the truck stop, Shannon stored the bag inside
the cab of his truck and remained waiting inside the rig.
According to testimony Shannon later gave on the witness
stand, he had traveled to Eighty Four, a truck stop he often
frequented, only as a favor to someone named Phillip
Williams, a trucker whom he became acquainted with while
on the road and whom he had occasionally met in Houston.
Shannon said that Williams had called him to ask whether, as
a favor, he would pick up someone named “Vince,” another
trucker, whose vehicle had supposedly broken down in
Pittsburgh. Shannon testified that he did not know Vince but
was willing to oblige Williams’s request because he himself
had recently been stranded after his own truck broke down
and he empathized with Vince’s predicament. According to
Shannon, he had agreed to meet Vince at Eighty Four – not
7
exactly where Williams had requested, but a familiar haunt to
Shannon – to give Vince a ride back to Houston.
But upon meeting “Vince,” who turned out to be
Middlebrooks, Shannon claimed to be puzzled. Not only did
Middlebrooks arrive driving a car, which implied that he was
in no need of a ride, but he also handed Shannon a bag and
asked whether he would be willing to wait “about an hour” so
that he could “take care of some other business.” (App. at
1356.) Shannon testified that he agreed to wait because he
had already gone out of his way to pick the man up. After
some “[t]ime went by,” however, Shannon said he became
concerned by the situation and opened the bag, worried that
he might have been handed “dope.” (Id. at 1357-59.)
Shannon testified that, when he saw that it was instead cash,
he “put the money back in the bag[,] ... threw it up under [his]
bed and got out of [his] truck.” (Id. at 1359.) According to
Shannon, he began walking towards the truck stop’s store to
call his girlfriend for help. He was arrested before he reached
the building.
Upon a search of Shannon’s vehicle and person, agents
found the bag, which contained $669,340, as well as $1000 in
the glove compartment of the truck and three phones – a
Boost Mobile phone on the truck’s dashboard, an iPhone on
the ground near where Shannon was arrested, and a Verizon
Motorola phone.
On December 14, 2011, a grand jury in the Western
District of Pennsylvania handed down a superseding
indictment that, inter alia, charged Shannon, Taylor, and
Middlebrooks with Conspiracy to Distribute and Possess with
Intent to Distribute Five Kilograms or More of Cocaine, in
8
violation of 21 U.S.C. § 846 (Count I), and Distribution and
Possession with Intent to Distribute Five or More Grams of
Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(ii) (Count II). Both Middlebrooks and Taylor
pleaded guilty, but Shannon chose to go to trial.
B. The Trial
Shannon’s trial strategy was to emphasize that he was
trying to do someone a favor and that he was simply caught in
the wrong place at the wrong time. The government, on the
other hand, endeavored to prove that he had been a drug
courier for Middlebrooks since at least late 2009. To that
end, the government placed particular focus on the
circumstances surrounding Shannon’s arrest and its aftermath.
For example, Taylor testified that, when he and
Shannon were together in pre-trial detention, Shannon
confessed he had been skimming cash from the proceeds of
drug deals for some time in order to cover “gas money.”
(App. at 1007.) The government argued that such skimming
would explain the $1000 found in the truck’s glove
compartment when Shannon was arrested. Shannon, of
course, denies that interpretation and maintains that he only
kept cash in the glove compartment in case of an emergency,
ever since the trouble he encountered when his truck broke
down.
Like Taylor and Middlebrooks, Shannon was also
arrested with three different cell phones on or near his person.
The government presented testimony that “people who are
involved in drug trafficking” often have multiple phones,
including prepaid cell phones like Shannon’s Boost Mobile
9
phone, and “everyday” phones like Shannon’s iPhone. (App.
at 234, 243.) The government also confirmed through
telephone records that Shannon and Middlebrooks each used
their respective Boost Mobile phones to contact only one
other such phone, i.e., a companion phone. In fact, the
government brought to light that, on multiple occasions,
including during the August 20-21 and September 29 drug
deals, signals from Shannon’s and Middlebrooks’s Boost
Mobile phones were relayed by a cell tower in Eighty Four
when the phones were used to “chirp”6 their companions.
Shannon tried to explain to the jury why he needed
three phones. He said that the Verizon Motorola phone was
his “everyday” phone and was registered under his name,
while the iPhone was used solely for “jobs purposes” and was
registered under his former girlfriend’s name because she had
better credit than he did at the time it was purchased. (App.
at 1404-06.) As for the third phone, the Boost Mobile phone,
Shannon claimed that it was purchased in May 2011 as a
specially dedicated phone for speaking to his nephew Jeremy,
whom Shannon said he considered as a son. According to
Shannon, he bought two Boost Mobile phones in 2011, one
for him and one for Jeremy, because Boost Mobile offered a
pre-paid, month-to-month plan with unlimited minutes and
“chirp” features, and he wanted Jeremy to learn how to
“handle a phone” and the responsibility of paying for a phone
before he switched Jeremy to his Verizon Wireless account.
(App. at 1408.) Although Shannon admitted that he
intentionally registered the Boost Mobile phones under a
6
“Chirps is the walkie-talkie feature of the Boost
Mobile phone.” (App. at 1230.)
10
pseudonym, he said he did so only because he was told that,
as pre-paid phones, they could be registered under any name.
Finally, the government confirmed during Shannon’s
cross-examination that his logbooks – which, as a long-haul
trucker, he was required to keep by his employer and the
United States Department of Transportation – were often
falsified. From the government’s perspective, Shannon’s
decision to make “wrong entries” in the logbooks was proof
that he was not making some side-trip to Eighty Four on the
day of his arrest but was in fact regularly traveling there, as
also evidenced by his Boost Mobile phone making use of a
local cell tower nearly every time Middlebrooks flew into the
Pittsburgh area. (App. at 1452.) Again, Shannon had an
explanation for the falsified log entries. He admitted that he
sometimes lied in his logbook but only to cover up his driving
to Baltimore to visit his paramour, Mary Simpson. When
asked by the government whether he lied in the logbook
because he could not “put all that driving time down” and still
do his “real job,” Shannon agreed. (Id.)
After Shannon testified about his secret lover
Simpson, his favor-seeking trucker friend Williams, and his
beloved nephew Jeremy – all in an effort to explain some of
the more damning circumstances surrounding his arrest – the
government took the step that has become the main point of
contention in this case: it asked him why he had not come
forward earlier with his exculpatory version of the facts.
Shannon’s counsel immediately objected to the government’s
questions, citing the Fifth Amendment, but he was summarily
overruled. Shannon was therefore pressed to explain his
silence. He did so by saying that he had told his lawyer his
version of the events in question.
11
Following closing arguments, and after several hours
of deliberating, the jury came back and announced it was
deadlocked. In response, the District Court gave the jury an
Allen charge,7 which it claimed was “almost exactly,” if not
“word-for-word,” the model jury instruction provided in our
Circuit. (App. at 1645.) Shortly thereafter, the jury returned
and found Shannon guilty on Count I (conspiracy) but not
guilty on Count II (possession). Notably, the jury found that
the government had only proven beyond a reasonable doubt
that Shannon was responsible for less than 500 grams of
cocaine, and so indicated on the verdict slip, which provided
the option of finding him responsible for more than 5
kilograms (as alleged in the indictment), more than 500
grams, or less than 500 grams. The District Court disagreed,
however, saying that “there [was] absolutely no evidentiary
basis to support [the jury’s] finding” of less than 500 grams.
(App. at 1744.) It therefore held him accountable for 16
kilograms of cocaine and sentenced him to 240 months’
imprisonment as well as six years of supervised release.
Shannon timely appealed.
II. DISCUSSION8
7
See Allen v. United States, 164 U.S. 492, 497 (1896)
(approving a supplemental instruction given to encourage a
deadlocked jury to resolve its differences and reach a verdict).
8
The District Court had jurisdiction over this matter
under 18 U.S.C. § 3231. We exercise jurisdiction pursuant to
28 U.S.C. § 1291.
12
While Shannon raises several issues on appeal, we
focus on his Fifth Amendment argument because the
government’s questioning of Shannon about his post-arrest
silence is alone enough to require that the conviction be set
aside.9
9
The parties contest whether the District Court
violated Shannon’s Sixth Amendment rights at sentencing
and, in that regard, have raised arguments regarding the
applicability of Alleyne v. United States, 133 S. Ct. 2151
(2013) (holding that any fact implicating a statutory
maximum or mandatory minimum sentence is an element of
an offense that must be found by a jury beyond a reasonable
doubt). We decline to address those and other arguments
raised by Shannon, since we must vacate his conviction.
Although we refrain from deciding those remaining
arguments, we would be remiss if we did not make the
following observations.
First, in light of the Court’s finding that Shannon’s two
prior convictions, both more than twenty years old, could be
admitted under Rules 404(b) and 609(b) of the Federal Rules
of Evidence, it is worth noting the narrow purpose and
specific contours of each rule. Rule 609, which governs the
use of convictions as evidence of truthfulness for
impeachment purposes, limits the admission of a conviction
more than 10 years old unless “its probative value, supported
by specific facts and circumstances, substantially outweighs
its prejudicial effect.” Fed. R. Evid. 609(b)(1). The Advisory
Committee Notes for Rule 609(b) emphasize that
“convictions over 10 years old will be admitted very rarely
and only in exceptional circumstances.” Fed. R. Evid. 609(b)
advisory committee’s note (emphasis added). Similarly,
while Rule 404(b) allows evidence of earlier convictions to be
13
admitted as impeachment evidence “for another purpose”
besides showing predisposition to commit the crime – such as
proving “absence of mistake” or “lack of accident” – we have
held that:
prior act evidence [under Rule 404(b)] is
inadmissible unless the evidence is (1) offered
for a proper non-propensity purpose that is at
issue in the case; (2) relevant to that identified
purpose; (3) sufficiently probative under Rule
403 such that its probative value is not
outweighed by any inherent danger of unfair
prejudice; and (4) accompanied by a limiting
instruction, if requested.
United States v. Caldwell, No. 13-1918, -- F.3d -- , 2014 WL
3674684, at *7 (3d Cir. July 24, 2014). Furthermore, we have
emphasized that the non-propensity “purpose” for which
404(b) evidence is admitted must be narrowly construed and
explicitly recorded by the Court. See, e.g., United States v.
Davis, 726 F.3d 434, 443 (3d Cir. 2013) (noting that prior
experience with small amounts of a drug would not have
provided the requisite knowledge under Rule 404(b) to help a
defendant identify a large amount of that drug since “[t]he
packaging or quantity might be different, and objects in
greater quantities often have an appearance or smell of their
own”); United States v. Givan, 320 F.3d 452, 466 (3d Cir.
2003) (McKee, J., concurring in part and dissenting in part)
(noting that the exception for “absence of mistake” under
Rule 404(b) requires the government to demonstrate the
defendant’s same “modus operandi” in a prior crime). A
court should hesitate to admit twenty-year-old convictions
when that evidence looks like propensity evidence. Under
14
The guarantee that “[n]o person ... shall be compelled
in any criminal case to be a witness against himself,” U.S.
Const. amend. V, is so “fundamental to our system” of
government that, in the landmark case of Miranda v. Arizona,
384 U.S. 436, the Supreme Court established the now-famous
rule that a defendant must be informed upon arrest that he has
the right to remain silent. Miranda, 384 U.S. at 467-68.
Later, reviewing a prosecution under state law, the Court in
Doyle v. Ohio announced that, because of the protections of
such circumstances, the evidence must ordinarily be
excluded. See United States v. Sampson, 980 F.2d 883, 887
(3d Cir. 1992) (“Hence, where the evidence only goes to
show character, or that the defendant had a propensity to
commit the crime, it must be excluded.”).
Second, with respect to the District Court’s Allen
charge, we reiterate that the Third Circuit Model Criminal
Jury Instructions are not binding on district courts. While it
may often be helpful to use the Model Instructions rather than
fashioning one’s own, we are not prepared to say that, simply
because an instruction differs from the model, that instruction
must be erroneous. If, on the other hand, an instruction
“stress[es] the time, expense or burden of a new trial,” the
instruction would be unduly coercive and would require us to
vacate a conviction and remand for rehearing. United States
v. Jackson, 443 F.3d 293, 298 (3d Cir. 2006). The instruction
at issue here did not stress any of those things, and merely
mentioning that a case will have to be retried before another
jury does not constitute coercion. Nonetheless, a court must
be careful when highlighting the need to dispose of cases and
the burden involved in calling a new jury.
15
the Fifth Amendment right to silence, “it would be
fundamentally unfair and a deprivation of due process to
allow [an] arrested person’s silence to be used to impeach an
explanation subsequently offered at trial.” 426 U.S. 610, 618
(1976). The Court therefore held that “the use for
impeachment purposes of petitioners’ silence, at the time of
arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment.” Id. at 619.
Of course, the rights secured by Doyle apply in equal effect
“to federal prosecutions under the Fifth Amendment.” United
States v. Agee, 597 F.2d 350, 354 n.11 (3d Cir. 1979).
Reiterating the basis for the Doyle rule, as it has now
come to be called, the Supreme Court has noted that “silence
[should] carry no penalty” because the primary purpose of
Miranda warnings is to safeguard an arrested individual’s
Fifth Amendment right to not speak to law enforcement
authorities.10 Wainright v. Greenfield, 474 U.S. 284, 290
(1986). When seeking to impeach a defendant’s credibility, a
prosecutor thus violates the Fifth Amendment when he
highlights the defendant’s post-arrest silence.11 Gov’t of the
10
Silence is not always protected. A defendant’s pre-
arrest silence is not saved from a prosecutor’s reaches for
impeachment purposes because “no governmental action
induce[s] [a] petitioner to remain silent before arrest.”
Jenkins v. Anderson, 447 U.S. 231, 240 (1980).
11
In Raffel v. United States, 271 U.S. 494 (1926),
decided decades before Miranda and Doyle, the Supreme
Court concluded that a defendant “may be examined for the
purpose of impeaching his credibility” since the Fifth
Amendment “immunity from giving testimony is one which
the defendant may waive by offering himself as a witness.”
16
V.I. v. Davis, 561 F.3d 159, 165 (3d Cir. 2009); Hassine v.
Zimmerman, 160 F.3d 941, 947-49 (3d Cir. 1998).
A defendant may, however, open himself up to
questions about his post-arrest silence if he “testifies to an
exculpatory version of events and claims to have told the
police the same version upon arrest.” Hassine, 160 F.3d at
948 (quoting Doyle, 426 U.S. at 619 n.11) (internal quotation
marks omitted). In that very limited circumstance, some
inquiry is permitted to prevent a defendant from misleading a
fact-finder about his claimed cooperation with law
enforcement. But the foundation for such an inquiry is not
easy to lay. We have explained that, to open himself up to
questions about his silence, it is not enough for a defendant’s
later testimony to be “ambiguous” about his supposed
cooperation. Id. at 948 (quoting United States v. Fairchild,
505 F.2d 1378, 1382 (5th Cir. 1975)). Instead, his earlier
silence “must appear to be an act blatantly inconsistent with
... [his] trial testimony.” Id. (quoting Fairchild, 505 F.2d at
1382) (internal quotation marks omitted).
Even when the government wrongly cross-examines a
defendant about his post-arrest silence, however, that does not
mean that his conviction will necessarily be infirm. The error
may still be harmless. The operative question becomes
whether the “constitutional trial error was harmless beyond a
reasonable doubt.” Davis, 561 F.3d at 165 (citing Chapman
v. California, 386 U.S. 18, 24 (1967)). To sustain a
Id. at 496-97. In light of later precedent, however, that
conclusion clearly does not apply when a prosecutor
explicitly questions a defendant’s post-Miranda silence.
Gov’t of the V.I. v. Davis, 561 F.3d 159, 165 (3d Cir. 2009).
17
conviction, the government must “prove beyond a reasonable
doubt that the error complained of did not contribute to the
verdict obtained.” Chapman, 386 U.S. at 24. We have
previously determined that error of the sort condemned in
Doyle “may be held harmless beyond a reasonable doubt in
cases where there is overwhelming evidence against the
defendant.” Davis, 561 F.3d at 165. But it is a “decidedly
heavy burden ... to demonstrate that reversal is not
warranted.” United States v. Waller, 654 F.3d 430, 438 (3d
Cir. 2011).
A. Objection and Preservation for Appeal12
As a threshold matter, we must first determine
whether, under Rule 103(a)(1)(B) of the Federal Rules of
Evidence,13 Shannon properly objected to the government’s
cross-examination and preserved that objection so that we can
exercise plenary review, or whether we must only review the
alleged Doyle violation for plain error. We thus turn to the
record.
12
We evaluate de novo a Fifth Amendment violation
under Doyle v. Ohio, 426 U.S. 610 (1976), unless the
defendant failed to object at trial. Gov’t of the V.I. v.
Martinez, 620 F.3d 321, 335 (3d Cir. 2010). In that case, we
review only for plain error. United States v. Balter, 91 F.3d
427, 441 (3d Cir. 1996).
13
Rule 103 of the Federal Rules of Evidence provides
that “[a] party may claim error in a ruling to admit or exclude
evidence only if the error affects a substantial right of the
party” and, if the evidence is admitted, the party objecting
“states the specific ground [for the objection], unless it was
apparent from the context.” Fed. R. Evid. 103(a).
18
From a plain reading of the trial transcript, it is clear
that the government asked Shannon about his post-arrest
silence. When Shannon’s counsel attempted to object, he was
emphatically overruled:
Q: Did you ever direct anyone to come to the
authorities and say, listen, you need to know about
[Williams]?
[Defense counsel]: Your Honor, may we have a side-
bar, please?
THE COURT: No.
[Defense counsel]: I object to that.
THE COURT: Overruled, if that’s an objection.
[Defense counsel]: It’s a comment.
THE COURT: He’s asking the question. Did you ever
tell anybody about Williams.
(App. at 1474.) Upon being directed by the District Court to
answer the government’s question, Shannon did answer, but
his counsel continued objecting and was, again, overruled:
A: I told my lawyer about Williams.
Q: Did you ever direct anyone to bring that
information to law enforcement?
[Defense counsel]: Your Honor, it’s a Fifth
Amendment comment. I object. I would like a
side-bar.
THE COURT: You’re overruled.
A: No. No.
Q: You waited until you took the stand and then
you told us about [Simpson, Williams, and
Middlebrooks]; right?
19
A. Yes, sir.
[Defense counsel]: I renew my objection, Your
Honor.
(Id.)
Defense counsel’s consternation was fully justified, as
the questions the government asked Shannon are patently
beyond the bounds set in Doyle. They are indeed textbook
examples of a Fifth Amendment violation.
Notwithstanding the obvious error that the
government’s questioning created at trial, and despite the
specific and repeated objections from Shannon’s attorney, the
government now contends that the objections were
“insufficient to alert the court of the right he was asserting
because defense counsel did not even tell the court that
Shannon had invoked Miranda.” (Gov’t’s Br. at 22.)
Repeating that line of attack at oral argument, the government
claimed that the Assistant United States Attorney (“AUSA”)
who prosecuted the case did not understand Shannon’s
objection “because frankly Doyle wasn’t mentioned,
Miranda’s not mentioned.” (Oral Arg. at 23:48-56.) The
government thus asks that we adopt a bright-line rule that
would require defense counsel to explicitly cite Doyle or its
progeny when objecting to the government’s questions about
a defendant’s post-arrest silence, as one of our sister circuits
has recommended.14 (See Gov’t’s Br. at 22 (“In Shannon’s
14
The United States Court of Appeals for the First
Circuit in United States v. O’Brien stated that objecting
counsel should either “point to Doyle or a counterpart case or
... articulate an objection that was in substance close to the
20
case, defense counsel never mentioned Doyle in the district
court. ... This was insufficient to alert the court of the right he
was asserting because defense counsel did not even tell the
court that Shannon had invoked Miranda – much less inform
it that his objection had anything to do with Miranda – until
after the trial was over.”).) We decline that invitation.
To begin with, the government’s claim that it did not
understand the objection is belied by the record. Besides the
fact that defense counsel explicitly stated the grounds for his
objection as being based on the Fifth Amendment, the
colloquy among the AUSA, defense counsel, and the District
Court after the defense rested makes clear that the
government understood the nature of Shannon’s objection.
Before closing arguments, defense counsel asked that the
District Court provide “a very intense cautionary instruction
on the government comment on my client’s silence.” (App.
at 1489.) When the Court replied that Shannon “waive[d]
[his] Fifth Amendment rights when [he] t[ook] the witness
stand,” defense counsel rightly corrected the Court and
explained that taking the witness stand does not waive a
defendant’s right to be free of questioning about his post-
arrest silence. (Id.) While the government now pleads
rationale of Doyle” to preserve the objection. O’Brien, 435
F.3d 36, 39 (1st Cir. 2006). What appears to have motivated
the court in O’Brien, however, was the fact that defense
counsel in that case gave “the wrong ground” for an
objection. Id. That is not the case here. Shannon’s counsel
clearly objected and said, “Fifth Amendment comment.”
(App. at 1475.)
21
ignorance, the AUSA arguing before the District Court
apparently understood that defense counsel was objecting to
the inquiry into post-arrest silence. In fact, the AUSA
responded by stating that “[o]nce [the defendant] gets on the
witness stand and presents his side of the story, he’s putting
that out there and he waited a year to do that.” (Id. at 1489-
90.) Although defense counsel continued disputing the
propriety of the government’s inquiry into Shannon’s silence,
the District Court declined to give any curative or cautionary
instruction.
Given that background, it beggars belief to hear the
government now argue that the Fifth Amendment issue was
not preserved for review. It was preserved, and the argument
to the contrary actually borders on frivolous. We therefore
will review the issue de novo and not, as the government
requests, for plain error. Gov’t of the V.I. v. Martinez, 620
F.3d 321, 335 (3d Cir. 2010).
B. Opening the Door
The government next argues that, even if the objection
was preserved for plenary review, the AUSA’s questions
were appropriate and did not constitute a Doyle violation
because Shannon “opened the door by implying he had
cooperated in an investigation to find [Williams]” and
because “most of the prosecutor’s questions probed
Shannon’s pre-arrest failure to call police when [he] realized
Middlebrooks handed him dope’ or drug-money.” 15 (Gov’t’s
15
We focus our analysis on those questions the
government asked Shannon during cross-examination. The
government notes that the “AUSA said nothing about
22
Br. at 20-21.) The government points to Shannon testifying
that he had “tried to ‘find [Williams,]” and it says he “twice
implied that his efforts ... were undertaken in cooperation
with authorities.” (Id. at 27 (citing App. at 1388, 1399).) If
Shannon had not been working with authorities, the
government asks, “why else [would he be] … trying to find
[Williams]?” (Oral Arg. at 18:11-13.) The government
contends that Shannon waived his Fifth Amendment rights as
explained in Doyle because a “defendant who wishes to
protect his post-arrest silence cannot ‘imply that he had
participated actively in the investigation.’” (Gov’t’s Br. at 28
(quoting Hassine, 160 F.3d at 949).)
On this point, as on the earlier question of whether the
Fifth Amendment issue was preserved by appropriate
objection at trial, the government’s arguments strike us as
badly strained. The record simply does not reveal any
“opening of the door” to allow questioning about Shannon’s
post-arrest silence. Here is the exchange the government
relies on:
Shannon’s silence in his [initial] closing argument” (Gov’t’s
Br. at 29) until Shannon’s closing emphasized that the
government did not “negate the legitimacy of [Shannon’s]
story regarding why he went to Baltimore and that his
nephew, like a son for him, ... wanted to get a phone.” (App.
at 1607 (Appellant Closing Statement).) Even assuming that
sequence forgave the comments at closing, it is irrelevant to
the question of whether the government violated Shannon’s
Fifth Amendment rights under Doyle during its cross-
examination.
23
[AUSA]: Have you looked at those phone
records?
A: We looked at them. Me and my counsel went
over the phone records. Keep in mind it was,
what, eight, nine months had passed by. I
looked at the phone records and tried, to the best
of my knowledge, give the phone that I thought
was [Williams’s]. They took the phone,
investigated it. Several phones that people call
me, the numbers was dislocated. Other phone
numbers that they called people would know me,
but didn’t know ... Williams. And when we
finally got a phone number that I thought was
his, it was actually a guy that works on cars,
works at Meineke. Meineke Mufflers.
Q: You looked at the phone records because you
know [Williams’] number has to be on that;
right?
A: Yes. It has to be on there.
Q: It has to be on the Verizon phone records?
A: Yes, sir.
Q: And so, you looked at them and you can’t find
[Williams’] number?
A: No, sir. I can’t remember his number because I
didn’t have it locked in.
Q: When you say you didn’t have it locked in,
you didn’t have it saved in your contacts?
A: Didn’t have it saved in my phone. Yes, sir.
(App. at 1416-17.)
24
There is nothing in that exchange or elsewhere in the
record that can reasonably be construed as Shannon waiving
his Fifth Amendment rights. Shannon did not “trumpet[] his
post-arrest cooperation,” as the government claims. (Gov’t’s
Br. at 26.) On the contrary, he told the government only what
he and his defense team undertook to corroborate his story.
While the government asserts that Shannon’s reference to
“they” is a reference to the government, the transcript cannot
comfortably bear that interpretation. (Id. at 27-28.) Shannon
appears to be referring to the defense team reviewing his
phone usage, not to any investigation by the government.
The government also claims that Shannon first
intimated his cooperation when he prefaced an answer about
Williams with the phrase “like I tell you earlier,” as if
“earlier” meant pre-trial and referred to working with the
government. (App. at 1400.) But in that portion of his
testimony Shannon was plainly not referring to pre-trial
communications with the government but to a statement in
Court he had made only moments earlier that he had met
Williams at a restaurant in Houston.16 It is frankly painful to
watch the government’s labored wresting of selected
sentences from Shannon’s testimony in an effort to create an
impression which a straightforward reading of the record
refutes. We are left to agree with Shannon that the
government’s arguments are nothing more than a “post hoc
attempt to salvage an unsalvageable mistake made by the trial
prosecutor.” (Appellant’s Reply Br. at 14.)
16
Shannon testified, “I wouldn’t get in touch with him.
I would if, like I tell you earlier, I would see him at the place
called the Boiling Crab on different occasions.” (App. at
1400.)
25
We have searched the record in vain for evidence that
Shannon’s silence was “blatantly inconsistent with [his] trial
testimony,” as required by Hassine to render permissible the
kinds of questions the government asked. 160 F.3d at 948-49
(citation omitted) (internal quotation marks omitted). The
government argues that the “blatant inconsistency ... is that
[Shannon] says he’s trying to find [Williams, telling several
people his version of the story], but then he doesn’t convey
information to those people which would enable them to help
him or do anything.” (Oral Arg. at 18:51-19:09.) But that
argument shows that government’s counsel still does not
appreciate the import of Doyle. The government should
know that Shannon does not need to “convey” information to
anyone; beyond question, he has no responsibility to prove
his innocence. And it should also recognize that there was
nothing in Shannon’s testimony that was “blatantly
inconsistent” with his post-arrest silence. The government
conceded as much at oral argument when it characterized as
“vague” Shannon’s responses regarding who he might have
been working with to find Williams. (Oral Arg. at 20:01-03.)
“Vague” obviously does not reach the high threshold of
“blatantly inconsistent.” If Doyle means anything, it is what
is said in its very first paragraph: that it is a violation of a
defendant’s due process rights for a “prosecutor ... to impeach
a defendant’s exculpatory story, told for the first time at trial,
by cross-examining the defendant about his failure to have
told the story after receiving Miranda warnings at the time of
his arrest.” Doyle, 426 U.S. at 611 (footnote omitted). That
is precisely what happened here.
The government’s second argument – that “most of the
prosecutor’s questions probed Shannon’s pre-arrest failure to
26
call police” – is also a stretch of the record. (Gov’t’s Br. at
21.) Very few questions in that cross-examination addressed
Shannon’s pre-arrest failure:
Q: When you see it’s money, you panic?
A: Yes, sir.
Q: You don’t call the police; do you?
A: No, sir. I don’t call the police.
Q: You instead think, I'm going to get out of my
car, maybe I’ll call Quita?
A: Yes, sir.
(App. at 1448.) The government’s questions about post-arrest
silence were also limited, consisting of the following: (1)
“Did you ever direct anyone to come to the authorities and
say, listen, you need to know about ... Williams?”; and (2)
“You waited until you took the stand and then you told us
about [Simpson, Williams, and Middlebrooks]; right?” (App.
at 1475.) The government’s implication that the questioning
about Shannon’s silence was largely innocuous because it
focused on Shannon’s pre-arrest silence does not accord with
the reality that both pre-arrest and post-arrest silence received
roughly the same degree of inquiry. More to the point, the
number of questions the government asked is not relevant to
the inquiry before us. Even if the government had, in fact,
asked pages of questions regarding Shannon’s pre-arrest
silence, the problem remains that it also asked inappropriate
questions regarding Shannon’s post-arrest silence. Doyle
does not establish a threshold quantity of improper
questioning to qualify as a constitutional violation. Here, the
two questions asked by the government regarding Shannon’s
post-arrest silence violated his Fifth Amendment right to
silence, as explained in Doyle.
27
C. Harmless Error Analysis
Our analysis, however, does not end with the finding
of a constitutional error at trial. We must still determine
whether the government proved beyond a reasonable doubt
that the error did not contribute to the verdict obtained.17
Chapman, 386 U.S. at 24. When the government fails to
carry its burden of proof, we must vacate the judgment of
conviction and remand for a new trial. That is the result
required here.
Viewed in its totality, the evidence against Shannon
was largely circumstantial and not “overwhelming,” as
required by Davis.18 561 F.3d at 165. “The government
17
The government argues that Brecht v. Abrahamson,
507 U.S. 619 (1993), is instructive, but, as the government
itself notes, “Brecht was decided on collateral rather than
direct review” (Gov’t’s Br. at 32 (citing Brecht, 507 U.S. at
637-38 (holding that constitutional error is harmful under
collateral review when that error “had substantial and
injurious effect or influence in determining the jury’s
verdict”))), and consequently is irrelevant to our analysis.
18
We are not implying, of course, that the evidence
against him was insignificant. It certainly was not. The
government presented the following persuasive evidence at
trial: Shannon’s Boost Mobile phone chirped in Eighty Four
virtually every time Middlebrooks visited Pittsburgh.
Shannon was entrusted with $669,340 to hold for the
conspiracy, despite, according to him, being a complete
stranger to that conspiracy. And Shannon falsified his
logbooks, a violation of federal law in its own right, to hide
28
conducted months of investigation, listened to thousands of
hours of wiretaps, [and] yet had not once heard of Shannon.”
(Appellant’s Opening Br. at 26.) Not one government record
revealed a call, text, or even an email between Shannon and
anybody else involved in the conspiracy. Without more in the
way of corroborating evidence linking Shannon to the
conspiracy, the jury’s assessment of Shannon’s credibility
was likely important to the outcome of the case.19 Because
that credibility was undermined by the government’s
questioning of Shannon about why he had not come forward
earlier to the police, we cannot say the constitutional error
was harmless. Chapman mandates that the government must
“prove beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained,” 386 U.S. at 24,
but the government has not done so, and the verdict cannot
stand.
frequent trips, that, perhaps by sheer coincidence, had him
driving through Eighty Four on multiple occasions. Although
such evidence may well be sufficient to convict, it is not
enough to sustain a conviction when, as in this case, there has
been a Fifth Amendment violation and the case depends so
heavily on whether one believes the defendant’s story.
19
In the past, we have found “harmless error” in
limited circumstances where the government presented
additional corroborating evidence at trial. See Davis, 561
F.3d at 166. In United States v. Balter, 91 F.3d 427, 431 (3d
Cir. 1996), for example, the government offered taped
conversations substantiating its theory of the case. Similarly,
in United States v. Dunbar, 767 F.2d 72, 73 (3d Cir. 1985),
two bank tellers separately identified the defendant after a
surveillance camera captured pictures of him robbing a bank.
Here, the government has offered no such evidence.
29
III. CONCLUSION
For the foregoing reasons, we will vacate the District
Court’s judgment and remand for a new trial consistent with
this opinion.
30